Verdicts

Because of 'Special Relationship,' Suit Against City Reinstated

A unanimous panel of New York's Appellate Division, First Department, has reinstated a case against the City of New York, where its emergency medical technicians' advice that a mother wait for a more “advanced” ambulance allegedly lead to a prolonged delay in treating her child. Applewhite v. Accuhealth Inc., 2011 NY Slip Op 09002, (App. Div., 1st Dept. 12/15/11).

A 12-year-old girl went into shock after a nurse at the child's home gave her a dose of the medication Solu-Medrol. The girl's mother called 911. Because no Advanced Life Support (ALS) ambulance was available at the time of the call, two emergency medical technicians (EMTs) came in a Basic Life Support (BLS) ambulance. It did not contain the stretcher, defibrillator and other equipment that the ALS ambulance would have had. The mother allegedly asked the two EMTs to take her daughter to the hospital, but they advised her to wait for the ALS ambulance. One of the EMTs assisted the nurse in administering CPR to the child while the other left the apartment to request an ALS ambulance, which took 20 minutes to arrive. It transported the patient to the hospital. Although the child did survive, she also suffered significant brain damage.

The plaintiffs sued the City of New York, which administered the ambulance service through its fire department. They alleged the defendants were negligent in failing to bring oxygen to the apartment and in advising the mother that she should wait for the ALS ambulance when the hospital was just four minutes away. The City moved for summary judgment, which motion was granted, leading to this appeal.

The defendant argued on appeal that it was performing a governmental function at the time of the alleged torts, so it should not be held liable. The court noted that, although government entities generally cannot be held liable for claims arising out of the performance of a governmental function, such ministerial acts can lead to liability under New York law if the government entity has created a special duty of protection toward the injured party. McLean v. City of New York, 12 NY3d 194 (2009). To establish such a special duty, a plaintiff must demonstrate four elements:

• An assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;
• Knowledge on the part of the municipality's agents that inaction could lead to harm;
• Some form of direct contact between the municipality's agents and the injured party; and
• The party's justifiable reliance on the municipality's affirmative undertaking.

Mastroianni v County of Suffolk, 91 NY2d 198, 204 (1997); Cuffy v City of New York, 69 NY2d 255, 260 (1987). The appeals court found the “special relationship doctrine” applied to this case because the claim involved “the quintessential purpose of the municipal ambulance system ' transporting the patient to the hospital as quickly as possible. Thus, defendant's poor advice and failure to transport is much closer to the performance of a government function than to the proprietary act of a medical provider caring for a patient.” And, in accordance with that doctrine and its four required showings, dismissal of the complaint was improper because the defendant had assumed a special duty toward the plaintiff. The first element of the special duty was shown by the EMTs' advising the mother that it was better to wait for the ALS ambulance even though she requested that they take her daughter to the hospital just four minutes from the home. The second and third elements were not in dispute. As to the fourth element ' that the mother justifiably relied on the EMTs' affirmative advice ' the court sided with the mother over the defense's claim that the mother could not have relied on anything the EMTs said. Stated the court: “The record reflects that the mother asked the EMS technicians to take her daughter to Montefiore Hospital, only four minutes away. The EMS technicians responded that it was preferable to wait for the ALS ambulance and continued to administer CPR. The EMS technicians made the decision not to transport the child immediately and to call for the ALS ambulance to effectuate transport. At no point did defendant communicate to the mother that the ALS ambulance would take another 20 minutes to arrive for the subsequent transport. The mother justifiably relied on the EMS technicians, who had taken control of the emergency situation, and who elected to await the arrival of the ALS ambulance.”

Because of 'Special Relationship,' Suit Against City Reinstated

A unanimous panel of New York's Appellate Division, First Department, has reinstated a case against the City of New York, where its emergency medical technicians' advice that a mother wait for a more “advanced” ambulance allegedly lead to a prolonged delay in treating her child. Applewhite v. Accuhealth Inc. , 2011 NY Slip Op 09002, (App. Div., 1st Dept. 12/15/11).

A 12-year-old girl went into shock after a nurse at the child's home gave her a dose of the medication Solu-Medrol. The girl's mother called 911. Because no Advanced Life Support (ALS) ambulance was available at the time of the call, two emergency medical technicians (EMTs) came in a Basic Life Support (BLS) ambulance. It did not contain the stretcher, defibrillator and other equipment that the ALS ambulance would have had. The mother allegedly asked the two EMTs to take her daughter to the hospital, but they advised her to wait for the ALS ambulance. One of the EMTs assisted the nurse in administering CPR to the child while the other left the apartment to request an ALS ambulance, which took 20 minutes to arrive. It transported the patient to the hospital. Although the child did survive, she also suffered significant brain damage.

The plaintiffs sued the City of New York, which administered the ambulance service through its fire department. They alleged the defendants were negligent in failing to bring oxygen to the apartment and in advising the mother that she should wait for the ALS ambulance when the hospital was just four minutes away. The City moved for summary judgment, which motion was granted, leading to this appeal.

The defendant argued on appeal that it was performing a governmental function at the time of the alleged torts, so it should not be held liable. The court noted that, although government entities generally cannot be held liable for claims arising out of the performance of a governmental function, such ministerial acts can lead to liability under New York law if the government entity has created a special duty of protection toward the injured party. McLean v. City of New York , 12 NY3d 194 (2009). To establish such a special duty, a plaintiff must demonstrate four elements:

• An assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;
• Knowledge on the part of the municipality's agents that inaction could lead to harm;
• Some form of direct contact between the municipality's agents and the injured party; and
• The party's justifiable reliance on the municipality's affirmative undertaking.

Mastroianni v County of Suffolk, 91 NY2d 198, 204 (1997); Cuffy v City of New York, 69 NY2d 255, 260 (1987). The appeals court found the “special relationship doctrine” applied to this case because the claim involved “the quintessential purpose of the municipal ambulance system ' transporting the patient to the hospital as quickly as possible. Thus, defendant's poor advice and failure to transport is much closer to the performance of a government function than to the proprietary act of a medical provider caring for a patient.” And, in accordance with that doctrine and its four required showings, dismissal of the complaint was improper because the defendant had assumed a special duty toward the plaintiff. The first element of the special duty was shown by the EMTs' advising the mother that it was better to wait for the ALS ambulance even though she requested that they take her daughter to the hospital just four minutes from the home. The second and third elements were not in dispute. As to the fourth element ' that the mother justifiably relied on the EMTs' affirmative advice ' the court sided with the mother over the defense's claim that the mother could not have relied on anything the EMTs said. Stated the court: “The record reflects that the mother asked the EMS technicians to take her daughter to Montefiore Hospital, only four minutes away. The EMS technicians responded that it was preferable to wait for the ALS ambulance and continued to administer CPR. The EMS technicians made the decision not to transport the child immediately and to call for the ALS ambulance to effectuate transport. At no point did defendant communicate to the mother that the ALS ambulance would take another 20 minutes to arrive for the subsequent transport. The mother justifiably relied on the EMS technicians, who had taken control of the emergency situation, and who elected to await the arrival of the ALS ambulance.”