Judge cites news article as cause for mistrial in case of man declared dead while alive | Crime News

For more than seven years, Tammy Cleveland waited for her chance to tell a jury about the night a doctor pronounced her husband, Michael, dead while he was still alive. She thought that chance would come on Monday.

Now she will have to keep waiting.

The judge in her medical malpractice and wrongful death lawsuit declared a mistrial at jury selection this week due to an article in The Buffalo News about an unrelated court case involving a woman declared indisposed. brain death at Buffalo General Medical Center.

State Supreme Court Justice Frank Caruso granted the motion to vacate without asking jurors if they had read the article or seen the headline, Cleveland attorney Charles F. Burkwit said Friday. . If a new trial takes place, it probably won’t take place for at least a year.

“We were there prepared for the trial. Our experts flew in. Everything was fine. We were mentally preparing for this,” said Tammy Cleveland, whose 46-year-old husband lived until the morning after her death. October 10, 2014. , heart attack.

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A mistrial was sought by attorneys for Dr Gregory Perry, who treated Michael Cleveland, and Kaleida Health, owner of DeGraff Memorial Hospital in North Tonawanda, where Cleveland was taken after collapsing while he was was shopping at a Tops Market in the city of Tonawanda.

Perry said Cleveland died after failing to resuscitate him, only for a coroner to see Cleveland an hour later and find he was still breathing. Cleveland died 15 hours after arriving at DeGraff.

Kaleida also owns Buffalo General, the scene of the current controversy over the status of Beverly Whitehead, the Buffalo woman whose case is the subject of an unrelated lawsuit to keep her on life support.

“This newspaper article dealt with a brain-dead patient at another hospital where there was no alleged malpractice,” Burkwit said. “I’m just baffled that a lawsuit of this magnitude would be dismissed because of an unrelated newspaper article. I’ve never seen this before.”

Kaleida spokesman Michael Hughes called the decision “a matter of judicial discretion” in a statement to The News.

“Judge Caruso is a very experienced jurist; he deliberated on the motion and determined that the publicity and narrative on other matters were such as to jeopardize the fairness of the Cleveland trial pending before him” , wrote Hughes.

Kathleen Sweet, Kaleida’s attorney, declined to answer questions on Friday. Brian Sutter, Perry’s attorney, did not return calls seeking comment.

“They said it would unduly harm the jury pool and that we would not be able to have a fair and impartial jury as a result of this article,” Burkwit said.

Burkwit said jurors were warned not to read or listen to anything from the Cleveland case.

Lucian Chalfen, a spokesperson for the Office of Courts Management, said the request was based on “an online link” to Kaleida engaging in similar behavior to the Cleveland case.

“The jurors in the current case were discussing the connection and the claims against Kaleida before the trial,” Chalfen said.

Michael Cleveland, 46, suffered a heart attack and was pronounced dead at 8.29pm on October 10 last year. He died again the next morning. Only the second death was

“There’s no evidence the jurors ever knew about it. They were in the central jury room all day,” he said. “No one even asked the jurors if they had seen the article.”

He said he tried to argue against a mistrial.

“The gist of my argument was that a mistrial couldn’t be declared because the trial hadn’t even started. We hadn’t even questioned the jurors yet. All we did was review the jury questionnaires.

“Pretty unbelievable. I just don’t get it,” Tammy Cleveland said.

After his heart attack, Michael Cleveland was taken by ambulance to DeGraff’s emergency room, where Perry attempted to resuscitate him. He dropped out 25 minutes after the patient arrived, saying Cleveland was dead at 8:29 p.m., court documents show.

But when Niagara County Coroner Joseph V. Mantione arrived about an hour later to take possession of the body, he found that Cleveland was still breathing.

“His chest was going up and down,” Mantione said in a 2016 deposition. He later saw Cleveland’s arm move as well. Cleveland’s eyes were open but appeared “glazed,” Mantione testified.


Lawyers for Kaleida Health and a former emergency physician won a partial victory Friday in the case of an Amherst man who was pronounced dead while still alive. Dr. Gregory C. Perry pronounced Michael Cleveland of Amherst dead in the emergency room at DeGraff Memorial Hospital in North Tonawanda in 2014, but his wife, Tammy A. Cleveland, and Niagara County

“The dead don’t move,” Mantione told Perry and other staff, according to his deposition.

Mantione, who was subpoenaed to testify at the trial, also said in his deposition that after he said Cleveland was moving, Perry checked Cleveland and said the patient had no pulse.

Mantione left saying he would not take the body of a man who was still moving. He testified in his deposition that Perry told him that Cleveland would stop moving as soon as the drugs he had been given wore off.

Mantione said a nurse called him about an hour later and told him “the patient woke up,” according to his deposition.

He returned to DeGraff shortly after 11 p.m., in time to see ER personnel trying to hold Cleveland down on the stretcher as the allegedly dead man “thrashed about and tried to get up and made noise,” according to the report. Coroner’s deposition.

Cleveland was later transferred to Buffalo General Medical Center in Kaleida, but his heart was damaged and his lungs were full of fluid, according to court documents. Cleveland died at Buffalo General at 10:48 a.m. on October 11, 2014, nearly 15 hours after arriving at DeGraff.

Tammy Cleveland’s lawsuit against Kaleida and Perry claims that her husband’s life could have been saved if Perry had responded more quickly to word that Michael Cleveland was breathing and moving, including repeated requests from Tammy and her adult children.







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Mark Mulville/Buffalo News


Whitehead case charged with mistrial

Caruso granted a motion to quash brought by Sutter and joined by Sweet, who argued that an article in Wednesday’s Buffalo News about another family’s dispute with Kaleida could have created bias among potential jurors.

This article, published on BuffaloNews.com at 5 a.m. Wednesday and featured on the front page of today’s print edition, was about Beverly Whitehead, a 62-year-old woman who had a heart attack last month.


The family stops the Buffalo hospital from unplugging their mother, but now what?

Doctors at Buffalo General Medical Center have declared Beverly Whitehead brain dead. Her family obtained a court order to prevent her from being taken off life support, but said the hospital would not allow a second opinion from an outside doctor.

Her children went to court to stop Buffalo General doctors, who believe she is brain dead, from turning off her life support.

Burkwit said Caruso ordered the Cleveland lawsuit returned to mediation, which failed to reach a settlement in several sessions before the jury selection process began on Tuesday.

“At this point, we haven’t received any good faith offers on the deal,” Burkwit said. “Until that happens, until the other party is willing to negotiate in good faith, I am not ready to discuss a monetary amount.”

If there is no settlement — and mediation has already failed in the case, Burkwit said — the trial will be adjourned to an unknown date.

Burkwit said the trial would have lasted about four weeks. Now, he said, that would go to the end of the civil trial waiting list before Caruso, meaning he might not be rescheduled until 2023 or later.