Appeal from the United States District Court for the Eastern District of Wisconsin, No. 84-C-926 -- Terence T. Evans, Judge.
Cummings and Cudahy, Circuit Judges, and Will, Senior District Judge.*fn*
In July 1984, Betty Archie, Special Administrator of the Estate of Rena M. DeLacy ("DeLacy"), and five other individuals*fn1 filed this complaint seeking $1,000,000 in compensatory and $1,000,000 in punitive damages from the City of Racine, Wisconsin, Ronald Chiapete, its Fire Chief, and George Giese, a Racine Fire Department dispatcher.*fn2 The complaint was brought under 42 U.S.C. § 1983 and claimed that defendant Giese twice failed to send a rescue squad to take DeLacy to a hospital and twice rendered improper medical advice, thus causing DeLacy's death from respiratory failure and violating the Fourteenth Amendment.
The case was tried to the court in September 1985 and resulted in the dismissal of the action. The district court's findings of fact and conclusions of law are reported in 627 F. Supp. 766 (E.D. Wis. 1986). The uncontested facts and the district court's findings of fact show as follows:
Rena DeLacy was a black female, age 43. She lived alone in her Racine apartment and was visited by a long-time friend, Les Hiles, early on May 27, 1984. He noticed that DeLacy was having difficulty breathing and called the rescue squad of the Racine Fire Department at 7:19 a.m. Defendant Giese, age 36, was the sole dispatcher on duty at the time and had been employed by the Racine Fire Department since 1972 and as a dispatcher since March 4, 1980. In that year, he received 30 hours of job training before becoming a full-time telephone dispatcher.
The two conversations between DeLacy, Hiles, and Giese are reported verbatim in 627 F. Supp. at 767-768. The transcript shows that after Hiles called Giese at the fire department, Hiles explained that DeLacy could "hardly breathe" and was "hyperventilating" and needed to go to "the emergency ward" but was unable to walk and therefore needed the rescue squad. Hiles gave the address of DeLacy's apartment twice and said "I'll meet you out in front." Id. at 767. Giese asked to talk to DeLacy. Rena DeLacy took the telephone, said she had "hyperthermia," and reiterated that she was having "a hard time breathing." The sounds of her "heavy labored breathing" came through on the tape. Id. at 768. Instead of sending the requested rescue squad to her apartment or advising her to go to a hospital, Giese told DeLacy to get a paper bag and breathe into it to slow her breathing down. Id. In fact, after he told her, "Why don't you slow down just a little bit and relax?" she asked whether this meant she should "stay in my own apartment?" and he said:
GIESE: Just relax and don't breath[e] like you're breathing.
GIESE: Get, get a little paper bag.
GIESE: And put it over your mouth and breathe into that. That will slow your breathing down.
Hiles left DeLacy's apartment an hour later and returned at 3:00 p.m. Hiles telephoned the Racine Fire Department three minutes later to say that DeLacy was still hyperventilating and that he was "scare[d]." Dispatcher Giese again answered the call and Hiles told him that DeLacy had "tried the paper bag" and had "sat" in her apartment, yet still was having trouble breathing. Despite knowing that DeLacy's breathing troubles had continued for at least six hours -- it was actually eight hours -- and that his prior medical advice had proven ineffective, Giese repeated that DeLacy should breathe into a paper bag:
GIESE: Well, if she's hyperventilating, just, just have her do what I told you to do. She's going to have to breathe into that bag.
GIESE: Over her nose and her mouth and then slow her breathing down.
HILES: Listen to me now, Is there anything [to] do with the heart?
Id. Hiles asked whether this would "beat the heart out" and Giese said "No." Hiles then said "maybe it'll wear her heart out," but Giese again responded "No" and did not send the rescue squad. Id.
Hiles left the apartment but returned later that night and found DeLacy dead. He then summoned the police, resulting in the 12:32 a.m. arrival of Sergeant Michael Ackley, who noted that a hospital was only five or six blocks away and then telephoned a fire department dispatcher who "very seriously doubt[ed] . . . they would not respond to the call[s]" from Hiles because the rescue squad "will respond to almost all calls for service irregardless [ sic ] of the frivolity of the alleged problem." Trial Tr. 14 and Exh. 1, at 3; 627 F. Supp. at 769. The trial court found that Sergeant Ackley "was immediately concerned that the situation had been handled inappropriately." 627 F. Supp. at 769.
An autopsy on May 28 revealed that DeLacy's death was from respiratory failure due to bilateral vesicular pulmonary emphysema with superimposed bronchopneumonia. Id. at 767. Hospitalization or administration of oxygen might have saved her life. Trial Tr. 56-57 (testimony of Dr. Baylon).
Giese admitted that this was the first time he had refused to send a rescue squad when requested. 627 F. Supp. at 770. He testified that this was also the first time he had instructed someone to breathe into a paper bag and that he did not ...