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Charges unlikely in 911 call case

Most legal experts say the dispatcher was not criminally negligent.

By CAMILLE C. SPENCER
Published April 19, 2007

NEW PORT RICHEY - To some, the case against David Cook seems obvious.

Last month, the 911 dispatch supervisor refused to get on the line with a "hysterical caller" whose girlfriend was choking on a piece of steak.

He relented seven minutes into the call and got on the line to instruct the boyfriend on the Heimlich maneuver. But by the time paramedics arrived, Nancy McGhee, 37, was dead.

Since the March 24 call, some have questioned whether Cook, who resigned in the midst of an investigation about the incident, should face legal action for his role. Compounding the public outrage is Cook's comment after McGhee died that she "bit off more than she could chew."

"The comments this supervisor made are outrageous, and he deserves to be charged with something," said state Sen. Mike Fasano, R-New Port Richey.

But legal experts say it's not that simple.

While McGhee's family plans to pursue a wrongful death lawsuit against Pasco County, local officials say Cook's involvement doesn't rise to the level of criminal negligence. Even a civil lawsuit could be hard to win.

"The guy did come over and try to help," said Sam Williams, a New Port Richey attorney. "So what about his comments? The issue is, he went over and tried to help and was unsuccessful. Was it culpable negligence? I don't think so."

* * *

According to state law, culpable negligence is defined as "a course of conduct likely to cause death or bodily harm."

For example, a person could be charged with culpable negligence if he left a loaded gun out and someone picked it up and shot himself.

But officials say the March 24 call presents a unique set of circumstances. The dispatcher who took the call, Jennie Montanino, did not have emergency medical training, so she repeatedly called for a trained supervisor to provide life-saving instructions.

Cook initially refused before finally getting on the line, while another supervisor, Maureen Thomas, did not help at all. She resigned this week.

Still, the Pasco County Sheriff's Office isn't pursuing charges against the supervisors, said spokesman Kevin Doll.

"That's something the State Attorney's Office could look at," Doll said.

But unless the Sheriff's Office investigates the incident as a crime, the State Attorney's Office won't get involved, said Mike Halkitis, assistant state attorney.

"It's a very high standard to charge someone with negligence," Halkitis said. "Culpable negligence has to be flagrant, a disregard for the life and safety of another person ... the (Sheriff's Office) didn't think it bordered that situation."

However, others argue that the seven-minute delay before Cook got on the phone could support a culpable negligence charge.

"All they have to show is that he engaged in behavior that he knew was imminently dangerous and that his failure to do so was likely to cause death or bodily injury," said Rick Terrana, a Tampa lawyer. "In this case, it's failure to communicate. I think a jury would nail him with that."

* * *

While the Pasco incident is unusual, another 911 mishap resulted in dispatchers facing criminal charges.

Last year, a 5-year-old Detroit boy called 911 after his mother collapsed on the floor.

Dispatchers scolded him twice for playing around, then hung up on him.

Instead of sending an ambulance, a dispatcher requested that an officer check on a child who was horsing around on the phone.

When police arrived, they found Sherrill Turner, 46, had died of complications of an enlarged heart.

The dispatchers were charged with criminal neglect of duty. Their trial is scheduled for September.

A civil claim for gross negligence is pending, said James Harrington IV, the Southfield, Mich., attorney who is representing the boy's family.

"What you have to show is that the people involved - the 911 operator, the supervisor - had that level of culpability, a substantial lack of concern on whether injury would occur," he said.

In the Pasco case, "Him (Cook) making jokes would support that claim."

Still, under Florida law, public safety workers - including dispatchers - can't be held liable unless they promised a caller they would respond at a certain time or provide a specific service. That could make a civil case tough to prove, said J. Larry Hart, a New Port Richey attorney.

Still, he said, "It's worthy of legal analysis from a civil standpoint. But the criminal side? That's a much taller order."

[Last modified April 18, 2007, 22:41:00]