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Judge asked to dismiss death lawsuit

Washington County Circuit Judge M. Kenneth Long Jr. did not make a decision.

Washington County Circuit Judge M. Kenneth Long Jr. did not make a decision.

August 18, 2007|By ANDREW SCHOTZ

WASHINGTON COUNTY - Attorneys argued in court Friday whether a lawsuit over the death of a former Smithsburg fire company volunteer and her unborn baby should be dismissed.

After more than an hour of oral arguments, Washington County Circuit Judge M. Kenneth Long Jr. did not offer a decision, but pledged to have one in writing "as promptly as I can."

Four years after Christina Lynn Hess, 20, died from complications connected to her pregnancy, her mother and her fianc are suing a variety of entities and individuals over their roles in the emergency medical response.

Hess' unborn son, Hunter, died along with his mother on March 5, 2003.

The $4 million lawsuit alleges that a bitter dispute between the Smithsburg Volunteer Fire Co. and the ambulance company played a part in the care Hess received. The Smithsburg Emergency Medical Services chief at the time could be heard on a 911 tape mocking the medical call and belittling the fire department.

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The lawyers for five defendants asked Long to remove their clients from the case.

John J. Hathway, representing Jason Tracey, the former ambulance chief, said Tracey's comments to a dispatcher about the call were not meant to be published and therefore cannot be an invasion of privacy.

Also, statutes covering good Samaritans and fire and rescue workers should protect Tracey, Hathway argued.

"Are there any matters more private than pregnancy, childbirth or death?" asked Patricia O'Connor, an attorney representing the plaintiffs. She said there was no precedent for the defendants' actions while serving the public, and the concept of "invasion of privacy" should be strictly construed.

She also challenged whether an ambulance squad legally could be considered a fire or rescue entity.

Attorneys additionally debated whether the plaintiffs needed to follow the proper procedure for giving notice, if slander was an equivalent of invasion of privacy and whether one defendant - the Washington County Volunteer Fire and Rescue Association - was at all responsible.

Besides the association and Tracey, other defendants represented Friday were the Washington County Commissioners, dispatcher Robert Myerly and Smithsburg Emergency Medical Services.

On June 4, Washington County Circuit Judge John H. McDowell granted a motion to drop Tracey from the case.

However, two days later, McDowell rescinded his order, reinstating Tracey as a defendant.

McDowell explained Friday that there was a clerical error over a filing by Tracey. He said he rescinded his order to dismiss the charges against Tracey when the matter was cleared up.

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