Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 82-1018.
Hunter and Weis, Circuit Judges, and Thompson, District Judge*fn*
Plaintiff sued a municipally owned nursing home for the death of her father. She charged a violation of his constitutional rights because of a failure to administer cardiopulmonary resuscitation, allegedly as a result of an institutional policy to withhold [withhold] such treatment. The district court granted a directed verdict against plaintiff because she did not show that the policy was unconstitutional nor did she demonstrate a causal relationship between the policy and the injury. We will affirm on the lack of a causal nexus.
As administratrix of her deceased father's estate, plaintiff brought this suit under § 1983 for violation of constitutional rights and under state law for wrongful death based on negligence. The district court dismissed the negligence. The district court dismissed the negligence count before trial. At the conclusion of the plaintiff's evidence at trial of the federal claim, the district judge directed a verdict in favor of defendant.
The plaintiff's decedent, Harry Gritz, died in August 1980 while a patient at the Valley Crest Nursing Home operated by Luzerne County, Pennsylvania. Mr. Gritz was then sixty-six years of age and was suffering from the effects of a stroke. He was a diabetic and had had a pacemaker implanted. The diagnosis on admission was congestive heart failure, old C.V.A. (cardiovascular accident), diabetes, and chronic coronary insufficiency. Mr. Gritz was paralyzed in his right arm and had only partial use of his left arm. He was unable to ambulate, bathe, dress, or shave without assistance.*fn1
Five days after his admission to Valley Crest, Mr. Gritz choked on a piece of meat while eating his evening meal. Mr. Pozda, a practical nurse who was nearby, attempted to aid Mr. Gritz by slapping him between the shoulder blades. When that proved ineffective, a nurse and another attendant nearby assisted by holding Mr. Gritz upright while Pozda performed the Heimlich maneuver.*fn2 The first effort was unsuccessful, but on a second application, the obstruction was forced upward into the plaintiff's mouth. Mr. Pozda removed the piece of meat, and Mr. Gritz was reseated in the wheelchair. At that time his pupils were fixed and dilated. He had no carotid pulse.
A physician who had been summoned, arrived as Mr. Gritz was being wheeled to his room or shortly after he arrived there. The physician pronounced the patient dead. The record shows that after the Heimlich maneuver was performed, no other resuscitative procedures were employed.
Plaintiff contends that cardiopulmonary resuscitation should have been administered to the patient after the piece of meat had been dislodged from his throat. She asserts that the failure to pursue that process was the result of the nursing home's policy not to administer cardiopulmonary resuscitation in every instance in which it was not specifically requested in advance by the patient or his family.
Some time before Mr. Gritz had been admitted, the nursing home, in a memorandum prepared by its medical director, had put forward the following position: ". . . with the appreciation of diverse opinion, based on philosophical, religious and humanitarian issues, it is impossible to have an absolute policy regarding CPR in this institution." However, the memorandum presented the following suggestions as guidelines on which to base a rational decision appropriate to a given situation.
"1. It is understood that standard C.P.R. is not to be performed routinely on every patient found in cardiac or respiratory arrest.
"2. When resuscitation efforts are requested by the patient or family prior to an unforeseen arrest, this information should be communicated to the physician in charge so that the appropriateness of the request in relationship to the patient's medical condition can be discussed with the family. A specific written order can then be placed on the chart by the physician.
"3. When medical[ly] appropriate, a physician may request C.P.R. upon cardiac or respiratory arrest by placing a written order on the patient's medical chart. Verbal orders may also be taken in emergency situations.
"4. When an unexpected cardiac or respiratory arrest occurs in a patient considered by nursing personnel to be medically stable, who also appears to have a reasonable degree of quality of life and quantity of life, C.P.R. may be initiated at the discretion of the nurse in charge of that floor at that particular time. It is understood that ...