He was legally dead but dead men don't breathe. Or follow you with their eyes. Or squeeze their wives's hands.
But for two hours and 40 minutes after Michael Cleveland was pronounced deceased at a hospital in suburban Buffalo, New York, on Oct. 10, 2014, his grieving family members watched signs of life flicker over the 46-year-old's body, according to newly filed documents in the family's lawsuit. His tongue tried to push out the endotracheal tube snaked down his throat. His chest continued to rise with air. His knees bent and straightened on the gurney.
When Cleveland's wife, Tammy, his 13-year-old son Ellis, and other family members pressed Gregory Perry, a young emergency room physician, to recheck the patient, the doctor said no, according to the suit. The man's chest was only moving because he had a lot of air to expel, he said. Cleveland, felled by a heart attack, continued to stir. Even the Niagara County coroner dispatched to the DeGraff Memorial Hospital to collect the body was unnerved by the man's state.
"Dead people don't move," the coroner protested to the doctor and nurses at the hospital. "He needs to go in there and check his pulse," he recounted in a deposition.
Finally, Tammy drew Perry's attention to a vein throbbing on her husband's neck, she said told the court. "Look, that's a pulse."
"Oh my God," the doctor relented. "He's alive."
"No (expletive)," Cleveland's wife said. "I've been telling you that for hours."
Unfortunately, Cleveland would not make it, succumbing hours later after being transferred to a larger hospital, Buffalo General Medical Center.
As the Washington Post reported in October 2015, the death resulted in a negligence lawsuit against the doctors and medical providers involved. The defendants — including Perry and DeGraff Memorial's operator Kaleida Health, among others — have since argued in court filings they acted by accepted medical care standards.
But Cleveland's family says the bungled declaration of death seriously delayed treatment that could have said the patient. "They pronounced him and left him for dead in the ER," the family's attorney, Charles F. Burkwit, told the Post this week. "Meanwhile, the family is watching their loved one as he's abandoned, basically watching him die."
According to the Buffalo News, on Thursday a New York State Supreme Court judge will hear arguments on whether the case will move forward. Brian Sutter, the attorney representing Perry, did not immediately return an email for comment. Michael P. Hughes, a spokesman for hospital operator Kaleida, told the News this week the "issue is currently in litigation, so we cannot discuss it at this time."
But in a motion for summary judgment, the defendants have argued that the delay in treatment did not impact Cleveland's chance because an earlier intervention would have made no difference in saving Cleveland's life: he "was never in any kind of shape to have survived" the heart attack in the first place, they argued.
Cleveland collapsed in the early evening of Oct. 10 while shopping with his son at a Tops supermarket. EMS arrived on the scene at 7:43 p.m., finding him unconscious and with agonal — or gasping — respiration. He was rushed to DeGraff Memorial, arriving at 8:04 p.m. Perry, who had only completed his medical residency in June 2013, worked on Cleveland with hospital nurses until 8:29 p.m., when he was pronounced dead. Following the call, Cleveland was unhooked from the machines and sensors, and his family was allowed to come into the room.
Cleveland then continued to show signs of agonal breathing. Perry made at least five visits to the room, yet continued to brush off the family's worries, according to the complaint. In depositions, Cleveland's relatives reported Perry seemed "irritated" by the requests.
"He didn't take the time for me at all," Cleveland's wife told the Post in October 2015. "He just told me that my husband passed. He couldn't just come in there and show that he was dead. He couldn't take a second and put a stethoscope on him and prove to me that he wasn't breathing. I don't understand that. Why wouldn't you do that to appease a grieving widow at that time, instead of walking in there nonchalant and give me your two cents acting like I was crazy?"
The Cleveland family's medical expert pointed out in a court filing the continued breaths should have been an obvious warning sign.
"According to The Determination of Death by the New York State Task Force on Life and the Law . . . the criteria for determination of cardiopulmonary death is 'An individual with irreversible cessation of circulatory and respiratory functions is dead. Cessation is recognized by an appropriate clinical examination. Clinical examination will disclose at least the absence of responsiveness, heartbeat, and respiratory effort,'" the expert wrote in a report. "Based on the foregoing factors, Dr. Perry should not have pronounced Mr. Cleveland dead at 8:29 p.m. since he clearly did not meet New York State criteria and clearly did not have irreversible cessation of circulatory and respiratory function."
Once the mistake was recognized and Cleveland was transferred to Buffalo General, he received the right cardiac care for an artery that was 100 percent blocked. But a crucial window of time had been missed, according to the family.
"There's a 90-minute window ... to get the artery unblocked," attorney Burkwit told The Post this week. "They missed that 90-minute window because he was pronounced and left for dead. Had they not pronounced him dead at around 8:30, he would have had a much better chance of surviving."