Tiffany Applewhite,, et al., Respondents,v.Accuhealth, Inc., et al., Defendants, City of New York, Appellant.BriefN.Y.January 7, 2013Bronx County Clerk's Index No. 22234/1998 To be argued by: MATTHEW GAIER OR THOMASA. MOORE Time requested: 15 minutes (!Juurf nf Appeals STATE OF NEW YORK TIFFANY APPLEWHITE, an infant under the age of 14 years, by her mother and natural guardian, SAMANTHA APPLEWHITE and SAMANTHAAPPLEWHITE, Individually, Plaintiffs-Respondents, against ACCUHEALTH, INC. and LINDA RUSSO, R.N., Defendants, and EMERGENCY MEDICAL SERVICES and THE CITY OF NEW YORK, Defendants-Appellants. SUPPLEMENTAL BRIEF OF PLAINTIFFS-RESPONDENTS Dated: March 28, 2013 THOMAS A. MOORE, ESQ. MATTHEW GAIER, ESQ. AND NORMAN BARD, ESQ. Of Counsel and On the Brief KRAMER, DILLOF, LIVINGSTON & MOORE 217 Broadway New York, New York 10007 Tel: (212) 267-4177 Fax: (212) 233-8525 Appellate Counsel to: MURRAY S. AXELROD 225 Broadway New York, New York 10007 Tel: (212) 619-3300 Fax: (212) 732-7091 Attorneys for Plaintiffs-Respondents FRANKLIN COURT PRESS, INC.-212-594-7902 (257-12) Reproduced on Recycled Paper TABLE OF CONTENTS Pages Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ii Preliminary Statement .......................................................... 1 Point I The Provision of Medical Care is a Proprietary Rather Than a Governmental Function, For Which The City Should Be Subject to Liability Under The Same Standards as any Private Entity Providing The Same Care .................................................. 5 Conclusion .................................................................. 24 TABLE OF AUTHORITIES Cases Pages Amadon v. State of New York, 182 A.D.2d 955 (3 rd Dept. 1992) ......................... 5 Angell v. State of New York, 278 A.D.2d 776 (3rd Dept. 2000) .......................... 7 Awlewhite v. Accuhealth, Inc., 90 A.D.3d 501 (1 st Dept. 2011) ..................... 20,21 Campbell v. Haber, 274 A.D.2d 946 (4th Dept. 2000) .................................. 7 Caso v. St. Francis Hosp., 34 A.D.3d 714 (2nd Dept. 2006) ............................. 6 Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364 (1 st Dept. 2007) .............. 23 Cohen v. Cabrini Medical Center, 94 N.Y.2d 639 (2000) ............................... 6 Cregan v. Sachs, 65 AD.3d 101 (1 st Dept. 2009) ..................................... 7 Cuffy v. City of New York, 69 N.Y.2d 255 (1987) .................................... 9 Edwards v. City of Portsmouth, 375 S.E.2d 747 (1989) ............................ 18-20 Eiseman v. State of New York, 70 N.Y.2d 175 (1987) ................................. 6 Florence v. Goldberg, 44 N.Y.2d 189 (1978) ........................................ 6 Fonville v. New York City Health & Hosps. Com., 300 AD.2d 623 (2nd Dept. 2002) .............................................................. 20 Garcea v. Kiman, 224 A.D.2d 190 (1st Dept. 1996) .................................... 7 Hamilton v. Beretta U.S.A. Com., 96 N.Y.2d 222 (2001) ............................... 6 Heraud v. Weissman, 276 A.D.2d 376 (1 st Dept. 2000) ................................ 7 Hines v. District ofColumbi~ 580 A.2d 133 (D.C. 1990) ............................. 14 Johnson v. District of Columbia, 580 A.2d 140 (D.C. 1990) ........................ 14, 15 Kreinheder v. Withiam-Leitch, 66 A.D.3d 1485 (4th Dept. 2009) ......................... 7 Kupferstein v. City of New York, 101 AD.3d 952 (2nd Dept. 2012) .................. 20,21 11 Laratro v. City of New York, 8 N.y'3d 79 (2006) .................................... 12 Lewis v. Capalbo, 280 A.D.2d 257 (1 st Dept. 2001) ................................... 7 Lewis v. State of New York, 68 A.D.3d 1513 (3fd Dept. 2009) ........................... 5 Matter of World Trade Ctr. Bombing Litig., 17 N.y'3d 428 (2011) ...................... 12 McNulty v. City of New York, 100 N.Y.2d 227 (2003) ................................ 8 Mendelson v. Clarkstown Med. Assocs., P.C., 271 A.D.2d 584 (2nd Dept. 2000) ............................................................... 7 Miller v. State of New York, 62 N.Y.2d 506 (1984) .................................. 12 Motyka v. City of Amsterdam, 15 N.Y.2d 134 (1965) ................................. 6 Padula v. County of Tompkins, 303 A.D.2d 804 (3fd Dept. 2003) ........................ 5 People v. Mirque, 195 Misc.2d 375 (Crim. Ct., Bronx Co. 2003) ......................... 8 Purdy v. Pub. Adm'r of County of Westchester, 72 N.Y.2d 1 (1988) ...................... 6 Raptis-Smith v. St. Joseph's Med. Ctr., 302 A.D.2d 246 (1 st Dept. 2003) .................. 7 Rattray v. State of New York, 223 A.D.2d 356 (1 st Dept. 1996) .......................... 5 Riss v. City of New York, 22 N.Y.2d 579 (1968) .................................. 5,11 Ryan v. Kom, 57 A.D.3d 507 (2nd Dept. 2008) ....................................... 7 Santos v. Rosing, 60 A.D.3d 500 (1 st Dept. 2009) ..................................... 7 Schempp v. City of New York, 19 N.Y.2d 728 (1967) ................................ 20 Schrempfv. State of New York, 66 N.Y.2d 289 (1985) ................................ 5 Sebastian v. State of New York, 93 N.Y.2d 790 (1999) ................................ 5 Sorichetti v. City of New York, 65 N.Y.2d 461 (1985) ............................. 10, 11 Sosnoffv. Jackman, 45 A.D.3d 568 (2nd Dept. 2007) .................................. 7 Steitz v. City of Beacon, 295 N. Y. 51 (1945) ....................................... 11 111 Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606 (1997) .............. 6,8 Tierney v. Girardi, 86 A.D.3d 447 (1 st Dept. 2011) .................................... 6 Wanzer v. District of Columbia, 580 A.2d 127 (D.C. 1990) ......................... 14, 18 Williams v. State of New York, 84 A.D.3d 412 (1st Dept. 2011), rev'd on other grounds, 18 N.Y.3d 981 (2012) ....................................... 5 Statutes & Regulations: 42 USC §1395dd [b] .......................................................... 16 CPLR4504 ................................................................... 8 10 NYCRR § 800.l5(a) ......................................................... 8 10 NYCRR § 800.3(d) .......................................................... 8 3 RCNY § 4900-02 ........................................................... 17 Other Authorities: Hearing on the Fiscal Year 2013 Executive Budget, Finance Division Briefing Paper, Fire Department, June 1,2012 ........................ 16 IV COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------------------)( TIFF ANY APPLEWHITE, an infant under the age of 14 years, by her mother and natural guardian, SAMANTHA APPLEWHITE and SAMANTHA APPLEWHITE, INDIVIDUALLY, Plaintiffs-Respondents, -against- ACCUHEAL TH, INC. and LINDA RUSSO, R.N., Defendants, -and- EMERGENCY MEDICAL SERVICES and the CITY OF NEW YORK, Defendants-Appellants. -----------------------------------------------------------------------------------)( PRELIMINARY STATEMENT In anticipation of reargument of this appeal, this Court has invited the submission of supplemental briefs focusing on the underlying policies and implications of the core issues in this case, particularly whether the conduct of the employees of the defendant City of New York at issue here involved governmental or proprietary functions. This brief addresses those specific issues, supplementing the discussion of the same contained in Point I of the initial Brief of Plaintiffs- Respondents, and responding to the arguments made by the City with regard to those issues. Fundamental to any type of negligence claim by any plaintiff against any defendant is whether the defendant owed a duty of care to the plaintiff. In the absence of such a duty, there can be no liability. Hence, a duty to the plaintiff is required for any defendant to be held liable, regardless of whether it is a private individual or enterprise, or whether it is a governmental entity. 1 Where a claim of negligence involves the provision of medical care or treatment, the question of whether a duty of care was owed by the defendant to the plaintiff turns on the existence of a medical care provider-patient relationship. Most typically, the question is asked in the context of a physician-patient relationship, but it applies to relationships between patients and any professional medical care provider, including ambulance attendants -- paramedics and emergency medical technicians (EMTs). Once such a relationship is created, a duty of care relative to the medical care or treatment at issue is owed by the provider to the patient. This is the case regardless of whether the defendant is private or a governmental entity. The defendant City of New York is asking this Court to create a new rule by which medical care providers in ambulances operated by governmental entities would be deemed not to owe any duty of care to patients with whom they are in a provider-patient relationship, unless the four requirements of the special duty rule are satisfied. In making this bold request, the defendant is asking this Court to apply a different standard to ambulances operated by governmental entities than to those operated by private entities, even though both are dispatched via the 911 emergency system. In fact, private ambulances account for more than one-third of all ambulance tours in the New York City emergency response system. The defendant's argument, if adopted by this Court, would result in a two-tiered system, in which a duty of care is owed by attendants in private ambulances but not by attendants in public ambulances in otherwise identical circumstances. There is no logical or rational basis in law or policy for this disparate treatment, or for this unprecedented and unwarranted expansion of the special duty doctrine. As demonstrated in Point I of our initial brief to this Court, the four elements of the special duty rule must be satisfied in tort actions against governmental defendants arising from the performance of governmental functions because those functions are premised upon duties owed to 2 the public at large rather than to an individual. Since there can be no liability in tort absent a duty owed to the individual plaintiff, satisfaction of the special duty requirements is necessary to establish such a duty. However, where, as here, there exists a medical care provider-patient relationship, a duty of care is owed to the patient and the special duty doctrine has no place. This lies at the very heart of the issue as to which this Court invited supplemental briefs. The provision of medical care or treatment is a proprietary rather than a governmental function, and a duty of care is owed relative to the provision of such care or treatment upon the establishment of a medical care provider-patient relationship. Therefore, once an ambulance -- either public or private -- arrives on the scene, a medical care provider-patient relationship is established between the attendants and the patient, a duty of care is owed by them to the patient in the performance of their proprietary functions, and the special duty doctrine has no application. In an effort to expand the reach of the special duty requirement, the defendant City argues that all EMS functions are governmental in nature, inclusive of all functions from the time a 911 call is received until the patient has been delivered to the hospital. However, that analysis defies this Court's express rule that the determination of whether a function was governmental or proprietary turns on the specific acts or omissions claimed to have caused the injury. The acts and omissions alleged by the plaintiffs to have caused the injury in this case are failing to administer oxygen to treat a complaint of difficulty breathing, delaying in transporting the patient to a hospital, and delaying in calling for an advanced life support (ALS) ambulance. Each of those claims involve emergency medical care and treatment and are thus proprietary in nature, as distinguished from the governmental function of dispatching an ambulance to the scene. Therefore, under the analysis required by this Court, the defendant's effort to treat all EMS functions as governmental fails. 3 Citing the emergent situations in which they may provide medical care, the City argues that EMS ambulance attendants should be regarded the same as police officers and firefighters. Yet, private ambulance attendants provide the same medical care as EMS attendants in the same emergent situations. The decisive factor that distinguishes ambulance attendants from police officers and firefighters, and the reason why a duty of care is owed to the individual patient, is that ambulance attendants -- private and public -- are medical care providers. That is their primary function. Significantly, EMS ambulances, like private ambulances and like private and public hospitals, bill for their services. The City does not submit bills to persons aided by the police or firefighters. The fact that the City bills patients for EMS ambulance services further demonstrates that the medical care provided by their ambulance attendants is, like all other medical care providers and unlike the work of police and firefighters, a proprietary function. In short, the City's attempt to create different standards for private and public ambulance attendants, and to treat the latter like police officers and firefighters, has no basis in law or fact, or in the policies underlying the special duty doctrine. It would represent an unprecedented expansion of the special duty doctrine in this state, and would insulate public ambulance attendants from liability for negligence for which they have always been answerable. It would eliminate the duty of care that these healthcare providers have always owed to their patients, and create a new class of patients that would be subjected to substandard care from public ambulance attendants without legal recourse. It would sanction disparate treatment relative to the provision of emergency medical care based upon the happenstance of whether the patient is treated by public or private ambulance personnel. For these reasons, the underlying policies and implications of the core issues in this case demand that the City's position be rejected. 4 POINT I THE PROVISION OF MEDICAL CARE IS A PROPRIETARY RATHER THAN A GOVERNMENTAL FUNCTION, FOR WHICH THE CITY SHOULD BE SUBJECT TO LIABILITY UNDER THE SAME STANDARDS AS ANY PRIVATE ENTITY PROVIDING THE SAME CARE As noted in our initial brief (Brief of Plaintiffs-Respondents, p. 29), this Court has long recognized that the provision of medical care and treatment is a proprietary rather than a governmental function. See Sebastian v. State of New York, 93 N. Y.2d 790, 795 (1999); Schrempf v. State of New York, 66 N.Y.2d 289,293-95 (1985); Riss v. City of New York, 22 N.Y.2d 579,581 (1968). The courts of this state have consistently abided by that understanding. See Williams v. State of New York, 84 A.D.3d 412,415 (1 st Dept. 2011), rev'd on other grounds, 18 N.y'3d 981 (2012); Padula v. County of Tompkins, 303 A.D.2d 804,805 (3 fd Dept. 2003); Rattray v. State of New York, 223 A.D.2d 356, 357 (1 st Dept. 1996); Amadon v. State of New York, 182 A.D.2d 955, 957 (3fd Dept. 1992). Indeed, any other rule would result in medical care and treatment rendered by countless healthcare providers in public hospitals, clinics and ambulances throughout the state being regarded as governmental, and thus subject to satisfaction of the special duty rule in order for them to be held liable for negligence or malpractice in providing such care or treatment. It is important to distinguish the provision of medical care or treatment to patients from a government agency's role in general health and safety concerns, the latter of which is governmental in nature. Thus, the responsibility of the Department of Health to notifY a physician's patients of potential exposure to health hazards resulting from the doctor's improper reuse of syringes is a governmental function. See Lewis v. State of New York, 68 A.D.3d 1513,1516 (3fd Dept. 2009). The distinction between the government's general responsibilities with regard to public health, and the provision of medical care or treatment to an individual patient by employees of a 5 governmental entity is that in the latter circumstance the governmental actor is a medical care provider. As such, it must be held to the same duties and standards of care as any other medical care or healthcare provider who undertakes to render medical care or treatment for the same condition. As further noted in our initial brief (Brief of Plaintiffs-Respondents, p. 33), the establishment of a healthcare provider-patient relationship is the point at which the provider owes a duty of care to the patient. This is important, because no defendant can be held liable to a plaintiff for negligence unless the defendant owed the plaintiff a duty of care. See Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222,233 (2001); Eiseman v. State of New York, 70 N.Y.2d 175, 187 (1987). This is a rule that dictates not merely municipal liability, but liability for negligence by any defendant, public or private. See Florence v. Goldberg, 44 N.Y.2d 189, 195 (1978) ("[a]s in the case of an individual or private corporation ... a municipality's liability must be premised upon the existence and breach of a duty flowing from the municipality to the plaintiff'); Motyka v. City of Amsterdam, 15 N.Y.2d 134, 139 (1965) ("[i]n the case of municipalities, as of other defendants, tort liability has been held to exist where there has been some relationship on the part of the defendant to the plaintiff creating a duty to use due care for the benefit of particular persons or classes of persons"). With regard to liability for negligence in providing medical care or treatment, it is settled law that such a duty is owed when there exists a medical care provider-patient relationship. See Cohen v. Cabrini Medical Center, 94 N.Y.2d 639, 642 (2000); Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606,612-14 (1997); Purdy v. Pub. Adm'r of County of Westchester, 72 N.Y.2d 1,9 (1988). Again, this is a principle that has been consistently adhered to by the courts of this state. See,~, Tierney v. Girardi, 86 A.D.3d 447, 448 (1S! Dept. 2011) ("Dr. Messinger continued to owe a duty of care because he established a doctor-patient relationship with decedent"); Caso v. St. Francis Hosp., 34 A.D.3d 714, 715 (2nd Dept. 2006) ("the conduct at issue derived from 6 the duty owed to the plaintiff as a result of the physician-patient relationship"); Angell v. State of New York, 278 A.D.2d 776, 777 (3rd Dept. 2000) ("the duty alleged to have been breached arises from the physician-patient relationship"); Mendelson v. Clarkstown Med. Assocs., P.C., 271 A.D.2d 584 (2nd Dept. 2000) ("the duty arises from the physician-patient relationship"). As observed in Lewis v. Capalbo, 280 A.D.2d 257, 258 (1st Dept. 2001), "a doctor who undertakes to examine and treat a patient []thus creat[ es] a doctor-patient relationship .... " See also Cregan v. Sachs, 65 A.D.3d 101, 111 (1 stDept. 2009); but cf. Heraud v. Weissman, 276 A.D.2d 376 (1 st Dept. 2000) (no physician-patient relationship created where "there was no evidence that Dr. Fradin had agreed to undertake plaintiffs surgical care"). Such a relationship may be implied, and may exist by virtue of advice or telephone communications, even without direct contact. See Kreinheder v. Withiam-Leitch, 66 A.D.3d 1485, 1485-86 (4th Dept. 2009); Santos v. Rosing, 60 A.D.3d 500 (1 st Dept. 2009); Raptis-Smith v. St. Joseph's Med. Ctr., 302 A.D.2d 246,247 (1 st Dept. 2003); Campbell v. Haber, 274 A.D.2d 946,946-47 (4th Dept. 2000). While most decisions address physician-patient relationships, this principle applies equally to other healthcare professionals who provide medical or related care and treatment. For example, actions against hospitals may be premised upon a duty owed by virtue of the existence of a "hospital-patient relationship." Sosnoffv. Jackman, 45 A.D.3d 568,570 (2nd Dept. 2007). The duty owed in actions against dentists is "determined by the dentist-patient relationship." Garcea v. Kiman, 224 A.D.2d 190 (1 st Dept. 1996). In Ryan v. Korn, 57 A.D.3d 507, 508 (2nd Dept. 2008), where the plaintiff s claims stemmed from treatment she received during physical therapy, the court noted that the "alleged conduct derived from the duty owed to the plaintiff as a result of the physician-patient relationship and was substantially related to her medical treatment [citations omitted]." Thus, when 7 any healthcare professional undertakes to provide care or treatment to a patient, a healthcare provider-patient relationship is established and a duty of care is owed to the patient. Notably, in People v. Mirque, 195 Misc.2d 375,379 (Crim. Ct., Bronx Co. 2003), the court held that CPLR 4504, which it found embodies a "health care professionals privilege," applies to statements made by patients to EMTs, thus understanding that there existed an EMT -patient relationship. That relationship results not only in privileged communications -- it gives rise to a duty of care owed from the EMT to the patient. Notably, all EMTs and paramedics are required to "maintain the confidentiality of information about the names, treatment, and conditions of patients treated .... " 10 NYCRR § 800.15(a). There is no question that the emergency medical services provided by EMTs and paramedics constitute medical care and treatment, or that EMTs and paramedics are medical carelhealthcare providers. The New York State Health Code defines "emergency medical service" as "a service engaged in providing initial emergency medical assistance, including but not limited to the treatment of trauma, burns, and respiratory, circulatory and obstetrical emergencies." 10 NYCRR § 800.3(d). That is medical care and treatment, and EMTs and paramedics are medical care providers. Since a duty of care is owed to the patient by virtue of the medical care provider-patient relationship, there is no necessity for a special duty in order for the provider to be held liable to the patient for negligence in the provision of care or treatment. In fact, there are circumstances in which a special duty is required for healthcare providers to be held liable for negligence in providing care, but that is only when the person seeking to hold them liable is a non-patient. In Tenuto, 90 N.Y.2d at 614, this Court found the existence of a "special relationship" between the defendant pediatrician and the parents of a child to whom he administered a polio vaccine, such that he had a duty to warn them that they were at risk for contracting polio when tending to the child. Conversely, in McNulty 8 v. City of New York, 100 N.Y.2d 227 (2003), this Court determined that there was no special relationship between the defendant healthcare providers and the friend of a patient suffering from infectious meningitis, such that they owed the friend no duty to advise her to seek treatment to immunize her from the disease. However, no case has ever held that a special duty is required for a medical care provider to be held liable to a patient for negligence in the performance of the care or treatment undertaken. No special duty is required when there exists a healthcare provider-patient relationship. By asking this Court to impose the requirement of a special duty for its EMTs and paramedics to be held liable for negligence after they arrive on the scene to treat patients, the City is seeking to eliminate the duty of care that exists by its EMTs to their patients by virtue of the establishment of a medical care provider-patient relationship. This would be unprecedented in the jurisprudential history of this state. No court has ever held that a medical care provider does not owe a duty of care to the patient in relation to the care or treatment undertaken. The special duty doctrine was adopted by this Court for cases in which an individual seeks to hold a governmental defendant liable for negligence in the performance of governmental functions specifically because the duty owed with respect to such functions is to the public at large and not to the individual (see Brief of Plaintiffs-Respondents, p. 33, and cases cited therein). The special duty rule has its genesis in claims for failure to provide police protection, for which the government owes no duty to individuals. As this Court explained in its seminal opinion in Cuffy v. City of New York, 69 N.Y.2d 255,260 (1987): As a general rule, a municipality may not be held liable for injuries resulting from a simple failure to provide police protection (see, e.g., Weiner v Metropolitan Transp. Auth., 55 NY2d 175). This rule is derived from the principle that a municipality's duty to provide police protection is ordinarily one owed to the public at large and not to any 9 particular individual or class of individuals (Moch Co. v Rensselaer Water Co., 247 NY 160). Additionally, a municipality's provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175, supra). Consequently, we have generally declined to hold municipalities subject to tort liability for their failure to furnish police protection to individual citizens. There exists, however, a narrow class of cases in which we have recognized an exception to this general rule and have upheld tort claims based upon a "special relationship" between the municipality and the claimant (De Long v County of Erie, 60 NY2d 296, 304; see, e.g., Sorichetti v City of New York, supra; Florence v Goldberg, supra; Schuster v City of New York, 5 NY2d 75). See also Sorichetti v. City of New York, 65 N.Y.2d 461,468 (1985) ("where there is no special relationship, a municipality does not owe a duty to its citizens in the performance of governmental functions, and thus courts will not examine the 'reasonableness' of the municipality's actions"). It is thus clear that the special duty rule was created to address the absence of a duty owed to individuals in cases premised on governmental functions -- particularly police functions -- in a narrow class of cases in which it is warranted by the circumstances. That absence does not exist, and the special duty rule has no application, where the governmental entity or its employees owed a duty directly to the individual because there existed a relationship recognized to give rise to a duty of care. As demonstrated above, the relationship between a medical care provider and a patient does precisely that -- it imposes a duty on the medical care provider to care for or treat the patient in accordance with the applicable standards of care. Hence, there is no need for a special duty, and the doctrine has no application, where a medical care provider undertakes to treat a patient. Moreover, the policy reasons for limiting or prohibiting governmental liability premised upon governmental functions do not apply where the duty and any attendant potential liability are limited to the specific patient the healthcare provider undertakes to treat. Those policies involve concern 10 over the financial burden that would be imposed on the government were it subject to liability for failures to properly perform government functions, and the potential impact on the allocation of public resources. See Sorichetti, 65 N.Y.2d at 468; Riss, 22 N.Y.2d at 581-82; Steitz v. City of Beacon, 295 N.Y. 51,55 (1945). These concerns are not implicated when the potential liability flows not from duties owed to the public at large, but only from the duty owed to an individual based upon a healthcare provider-patient relationship with that individual. Unlike the broad exposure a municipality would have if it were subject to liability for negligence in failing to send timely or proper assistance without satisfying the special duty rule, its exposure to liability for negligence by its ambulance attendants in the care they provide on the scene is confined and limited. Further, while the former could well impact on the allocation of public resources in terms of the assignment of ambulances, the latter has no such impact -- it is simply a question of whether the attendants acted properly once they arrived. This Court observed in Riss, 22 N.Y.2d at 582, that there is a "predictable allocation of resources and liabilities when public hospitals ... are provided." The allocation of resources and liabilities relative to the care provided by attendants in municipal ambulances after they arrive on the scene is no less so. Indeed, the allocation of resources is not implicated at all in such circumstances, and they pose minimal exposure to liability compared to that flowing from negligent care in public hospitals. In light of the precedent establishing that medical care is not a governmental function, the City has attempted to recast the issue as one involving the entire EMS operation from receipt of the 911 call until the patient is delivered to the hospital, and everything that occurs in between (see Appellants' Reply Brief, p. 4; Appellants' Supplemental Brief, p. 2). Under this analysis, the City argues (Appellants' Supplemental Brief, pp. 2-4) that anything EMS does is a governmental function 11 and falls within this Court's holding in Laratro v. City of New York, 8 N.y'3d 79 (2006). However, that decision addressed a claim "that the City ofN ew York was slow in responding to a 911 calL ... " Id. at 82. It did not address claims of negligence by the City ambulance attendants once they arrived on the scene. The additional rationale it cited, that "the threat of liability might deter or paralyze useful activity" and "make municipal governments less ... effective in protecting their citizens" (id.), does not apply to the actions of EMTs once they arrive on the scene. The City'S approach of combining the different functions engaged in by EMS and its employees violates the analysis which this Court has explicitly required for determining whether a governmental function is at issue. As set forth at length in our initial brief (Brief of Plaintiffs- Respondents, pp. 26-28), where a government agency's functions encompass both proprietary and governmental activities, "the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury." Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428,447 (2011); see also Miller v. State of New York, 62 N.Y.2d 506,513 (1984) ("the specific act or omission out of which the injury is claimed to have arisen"). The City's analysis violates this express edict. It takes this approach because the acts and omissions alleged to have caused the injury in this case -- failing to administer oxygen to treat the patient's difficulty breathing, delaying in transporting the patient to a hospital, and delaying in calling for an ALS ambulance -- unequivocally involve only the emergency medical care provided by the EMTs once they arrived, and do not involve any other aspect of the EMS operation. The City's assertion that the emergency medical care and treatment provided by its ambulance attendants "seamlessly intertwine with the ambulance assignment and dispatch functions" (Appellants' Supplemental Brief, p. 9), is merely a contrived effort to blur together distinct functions. Assignment and dispatch are government functions dealing with allocation of resources, and they 12 are done before there is any provider-patient relationship. As such, they implicate a duty owed only to the public at large. Once an ambulance arrives, however, a healthcare provider-patient relationship is established (giving rise to a duty of care to the patient), and the attendants are engaged in the proprietary function of providing medical care. Once they arrive, their actions are addressed strictly to the care and treatment that their patient requires, and nothing else. There is thus no merit to the City's assertion that the attendants' failure in this case to immediately transport the patient to the hospital and their inexplicable six minute delay in calling for an ALS ambulance are "functionally indistinguishable" from the acts of a 911 dispatcher (Appellants' Supplemental Brief, p. 9). The ambulance attendants had a patient they were there to treat, while the 911 operator or dispatcher had a telephone call. Equally erroneous is the City's attempt to equate the failure of its EMTs to bring oxygen to the apartment with a late arrival of an ambulance or a failure to send one at all (Appellants' Supplemental Brief, p. 10). This was not a situation, as the City posits, of "the arrival of a crew without full equipment" (id.). They arrived with the oxygen, but failed to bring it to the apartment to treat a patient with difficulty breathing -- and this failure continued even after they assessed the patient. Significantly, the City's special duty argument is completely betrayed by its assertion that "they did not yet owe any duty to plaintiffs" to bring the oxygen when they left the ambulance (id.; emphasis added). Their entire argument is premised on the assertion that absent a special relationship they owed no duty to the plaintiff at all from the time they received the 911 call until they delivered her to the hospital. Yet, this statement at least tacitly acknowledges that at some point after they arrived they owed her a duty of care. This is an admission that a duty of care was owed by virtue of the EMT -patient relationship. That admission eviscerates their special duty argument. 13 The relationship existed once the ambulance arrived on the scene, when the attendants went to treat the patient. At that time, they were undertaking to treat a patient for difficulty breathing. Their protocols expressly required the administration of oxygen for this condition (274,309)/ but they did not bring it. As such, they breached a duty to their patient. Whether that breach occurred when they entered the apartment without oxygen or when they left the ambulance without it is of no moment. What matters is that they were undertaking to treat the patient in violation of the professional standards of care. Further, the evidence indicates that even after they assessed the patient at 11 :21 and found no respiration or pulse (218), they did not promptly retrieve the oxygen. Instead, EMT Meuller just "stood around watching" (256). As a result, the patient did not receive oxygen until 11 :41 (333). Therefore, this departure from proper practice continued after the point at which the City implicitly acknowledges their attendants owed a duty. Similarly, the departures in failing to immediately transport her to the hospital and in delaying calling for ALS assistance occurred after the point at which the City acknowledges the existence of a duty. Confronted with the import of the healthcare provider-patient relationship to the existence of a duty of care, which obviates the need for a special duty, the City relies heavily on a trilogy of decisions from the District of Columbia addressing what that jurisdiction refers to as the "public duty doctrine" (Appellants' Supplemental Brief, pp. 4-5, 15-17). See Wanzer v. District of Columbia, 580 A.2d 127 (D.C. 1990); Hines v. District of Columbia, 580 A.2d 133 (D.C. 1990); Johnson v. District of Columbia, 580 A.2d 140 (D.C. 1990). As explained below, those decisions should not influence this Court because the District of Columbia does not employ the analysis required by this Court's precedents. 1 Numerical cites in parentheses refer to the pages in the Record on Appeal. 14 First, the District of Columbia does not distinguish between the specific duty of care owed by medical care providers to their patients upon the establishment of a healthcare provider-patient relationship, and duties owed generally by governmental entities to the public at large. None of the D.C. cases discussed the significance of the healthcare provider-patient relationship. Second, and more definitively, the District of Columbia does not distinguish between governmental and proprietary functions. In Johnson, 580 A.2d at 141, the Court expressly stated, "[n]or is ambulance protection distinguishable on the ground that it is a proprietary function .... " In a footnote coming off that statement, the Court then stated: Id. at 141, n.l. Whether the District acts in a uniquely governmental capacity or as one of several business competitors does not bear on the underlying policy of the public duty doctrine to protect the government from interference in its "legislative or administrative determinations concerning allocation of" limited public resources. Warren v. District of Columbia, 444 A.2d 1,4 (D.C.1981) (en banc). Simply put, the District of Columbia rej ects the long -standing precedent of this Court that the special duty doctrine does not apply to proprietary functions. Indeed, that is precisely the issue on which this Court invited supplemental briefs -- whether the conduct of the EMTs involved governmental or proprietary functions. Therefore, the cases from the District of Columbia, upon which the City so heavily relies, are of zero value. Nor is there merit to the City'S assertion that its ambulance attendants are "more similar to police officers and firefighters than to physicians ... and other traditional medical providers ... " (Appellants' Supplemental Brief, pp. 6-8). They premise this assertion on the fact that they provide treatment in emergency situations, and that the nature of the treatment is for the purpose of "stabilization" of the patient, which they conclude makes it governmental (see Appellants' 15 Supplemental Brief, p. 7; Appellants' Reply Brief, p. 3). However, hospitals routinely provide emergency medical treatment. In fact, "stabilizing treatment" is precisely what is required of hospitals in medical emergencies and active labor. See 42 USC § 1395dd [b] (the Emergency Medical Treatment and Active Labor Act of 1986). Yet, that treatment is indisputably proprietary. Moreover, unlike police and fire protection, the private sector has long been involved in the provision of emergency medical care via ambulances, and it remains a major provider of such care today. As previously demonstrated, private ambulance services have existed since the days of horse- drawn ambulances (see Brief of Plaintiffs-Respondents, p. 31, n.5, and cases cited therein). Today, in the City of New York, private ambulance services operated by hospitals voluntarily participating in the 911 emergency response system account for roughly 35% ofa1l911 ambulance tours -- private ambulances operate 343 tours and EMS operates 624 tours (see Counsel ofthe City of New York, Hearing on the Fiscal Year 2013 Executive Budget, Finance Division Briefing Paper, Fire Department, June 1,2012, p. 5, available at http://council.nyc.gov/downloads/pdf/budget/2013/ex ecbudget/057%20Fire%20Department.pdf). Under the City's argument to this Court, the 35% of emergency patients in New York City treated by private ambulances would be owed a duty of care upon undertaking such treatment, while the 65% treated by EMS attendants would be owed no such duty of care. It is noteworthy that the private ambulances partaking in the New York City 911 system are not compensated by the City for their services. In fact, in 2012 there had been a plan for the City to charge these hospitals fees to be able to participate in the 911 system, to cover dispatch and telemetry costs incurred by the fire department (id.). Those dispatch and telemetry services are governmental functions, while the care and treatment provided by private and public ambulance attendants are not. 16 The significance of private ambulance attendants performing the same functions as EMS attendants cannot be overstated. The City has emphasized the difficult conditions and circumstances with which its attendants are faced in providing their emergency medical care (see Appellants' Reply Brief, pp. 5-7; Appellants' Supplemental Brief, p. 6). However, private ambulance attendants perform the same functions under the same conditions and circumstances. Not only do private ambulance attendants perform the same functions as EMS attendants, but like private ambulance services, EMS ambulances bill for their services. See 3 RCNY § 4900-02. Patients and their insurers are billed for the care provided by EMS ambulances pursuant to the following current schedule of charges: Type of Service Basic Life Support Ambulance Advanced Life Support Ambulance Service--Levell (ALS1) Advanced Life Support Ambulance Service--LeveI2 (ALS2) Additional Charges: --Mileage (distance traveled to hospital) --Provision of Oxygen C as applicable) Charge $704.00 $1,190.00 $1,290.00 $12.00/mile $60.00 Id. Notably, the Historical Note for this rule indicates that these charges are to "patients and insurers," and that they are for "EMS ambulance treatment and transport service" Cid.), thus proving that these charges are indeed for the "treatment" of "patients". This deeply undermines the City's assertion that EMS ambulance attendants are more like police officers and firefighters than they are like private ambulance attendants and other medical care providers. Bills for services are not typically sent to persons whom police officers and firefighters rescue from criminals or burning buildings. That is because those are governmental functions, paid for solely by taxes. However, bills for services are sent to patients who receive care from EMS ambulance attendants, and this is identical to private ambulance services, as well as private hospitals and public hospitals. That is why public hospitals are subject to liability for their negligence and 17 malpractice withoutthe requirement of a special duty (see Brief of Plaintiffs-Respondents, p. 29, n.5, and cases cited therein). They are engaged in the proprietary function of providing medical care, and the same is true of public ambulance attendants. It is noted that the D.C. court in Wanzer, 580 A.2d at 131, rejected the plaintiffs argument that the public duty doctrine should not apply because a "user fee" of $35.00 was charged for city ambulances. However, as noted supra, p. 15, that court does not apply the analysis required by this Court -- it does not distinguish between proprietary and governmental functions. The fact that the City bills for the services of EMS ambulances is a pivotal factor under this Court's special duty analysis and under the circumstances of cases ofthis nature. A brief re-cap is in order to place this fact in perspective. This Court requires a special duty only for governmental functions and recognizes medical care as a non-governmental, proprietary function. Public ambulance attendants clearly provide medical care, and they provide the same functions as private ambulance attendants, who are not subject to the special duty rule. Nevertheless, in an effort to shield itself from liability for negligent care provided by its ambulance attendants, the City argues that they are more like police officers and firefighters than doctors or hospitals. This claim is completely subverted by the fact that the City bills for the services of its ambulance attendants. It demonstrates that, like public hospitals, public ambulance attendants perform the proprietary function of providing medical care, and just as public hospitals are treated the same as private hospitals with regard to the duty of care owed to their patients, so should public ambulance attendants be treated the same as private ones. It is pertinent at this point to comment on the City's citation to Virginia law, as discussed in Edwards v. City of Portsmouth, 375 S.E.2d 747 (1989). In that case, the Supreme Court of Virginia found that based upon the state statute authorizing municipalities to provide emergency medical 18 services and vehicles, the defendant city in that case was exercising its police powers such that it was performing a governmental function. Id. at 749. In an effort to make it appear as if the reasoning of that decision applies in this case, the City quotes portions of that opinion (see Appellants' Supplemental Brief, pp. 5-6). However, those quotes are taken out-of-context. When the quoted portions of the opinion are read in their entirety, as set forth below, they demonstrate that Virginia law is egregiously different from New York law: Thus, on the facts before us, and as a matter of statute, the City could not have established the emergency ambulance services here in dispute were it not exercising its police powers. Where a local government exercises powers delegated or imposed, it performs a governmental function. See Hoggard v. Richmond, 172 Va. 145, 147, 200 S.E. 610, 611 (1939); Franklin v. Richlands, 161 Va. 156, 170 S.E. 718 (1933). In City ofRichmondv. Long, 58 Va. (17 Gratt.) 375 (1867), we held that hospital services provided by a city were an exercise of a governmental function. InAshburyv. Norfolk, 152 Va. 278,147 S.E. 223 (1929), we held that garbage collection was a governmental function because it concerned the preservation of the public health. In light of these cases, we conclude that ambulance services are akin to the provision of hospital services. Furthermore, if collecting garbage is a governmental function, then providing ambulance services must also be, because it is difficult to imagine anything more directly tied to the health, safety, and welfare of the citizens. Edwards, 375 S.E.2d at 749-50. While the City quotes the language that if collecting garbage is a governmental function so is providing ambulance services, it fails to mention the preceding sentences indicating that Virginia likewise regards the operation of public hospitals as a government function. Of course, that is the diametrical opposite of the law ofN ew York, and that difference is of monumental significance. The operation of hospitals and the provision of medical care has always been regarded as a proprietary function, and public hospitals have never been subject to the special duty doctrine. If applied in New 19 York, the rationale of Edwards would make municipal hospitals liable for malpractice only if the elements of the special duty rule were satisfied. That has never been the law of New York, and it never should be. Neither has that been the law of New York with respect to negligent care by municipal ambulance attendants. The City has long been subject to liability for negligent care and treatment by its ambulance attendants. See,~, Schempp v. City of New York, 19 N.Y.2d 728 (1967). The City is now seeking to change the state of the law to limit or eliminate liability to which it has traditionally been subject. This is the significance of our prior discussion ofFonviile v. New York City Health & Hosps. ~, 300 AD.2d 623 (2nd Dept. 2002) (see Brief of Plaintiffs-Respondents, p. 41) -- it demonstrates that the City is not seeking to prevent an expansion of its liability but to obtain immunity in cases in which it has always understood it was liable. The New York City Corporation Counsel and New York City Health and Hospitals Corporation (HHC) expressly conceded in their brief to the Appellate Division in that case that "to the extent that plaintiff is claiming that the EMS workers negligently treated her mother after they arrived on the scene, we concede that her complaint should not have been dismissed based on the lack of a special duty owed to the decedent" (Fonville Respondent's Brief, p. 6). They have now disavowed that position in this case (339), and are seeking to change the law. In this light, the City's reliance on Kupferstein v. City of New York, 101 AD.3d 952 (2nd Dept. 2012), is disingenuous. In finding that a special duty was required for the City to be liable for negligent care rendered by the EMS attendants in that case, the Second Department relied upon the First Department's decision in this case. Id. at 953, quoting, Applewhite v. Accuhealth, Inc., 90 AD.3d 501,504 (1 st Dept. 2011). Plaintiffs-respondents' counsel sent the Kupferstein decision to this Court prior to the first oral argument of this appeal, and explained at oral argument that the 20 decision reflects the confusion over the special duty doctrine that has emanated from the First Department's decision in this case (see transcript of oral argument before this Court in Applewhite, dated January 7, 2013, pp. 29-31). Since Kupferstein is a product of the confusion created by the First Department's decision in this case, it is the ultimate bootstrap for the City to now rely on Kupferstein in asking this Court to adhere to the First Department's finding that this involved a governmental function. In fact, Kupferstein actually demonstrates the absurdity of the rule urged by the City. As plaintiffs-respondents' counsel noted at the oral argument ofthis appeal, the plaintiffs in Kupferstein established that the departure by the EMTs in giving a medication (Versed) led to the patient's cardio-pulmonary arrest, and still they were required to satisfy the special duty rule to pursue their claim against the City @. at 31). On rebuttal, the City's counsel stated @. at 36): And one last thing about Kupferstein. The plaintiffs in that case did not argue that the medication made the decedent worse. In truth, the affidavit of the plaintiffs' expert in Kupferstein stated: Just 6 minutes after the Versed was administered, the patient went into cardiac arrest. It is my opinion, to a reasonable degree of medical certainty, that the request for the administration of Versed was improper when current vital signs were not available, and that the administration of Versed contributed to Mr. Yigdal' s cardiac arrest. (See Kupferstein Record on Appeal, p. 497). Therefore, contrary to the City's assertion, the expansion of the special duty doctrine it is advocating resulted in a dismissal in Kupferstein where the EMTs' medical negligence worsened the patient's condition. There is no reason to expand the reach of the special duty doctrine to negligent care and treatment rendered by municipal ambulance attendants. Because municipalities have always been liable for such negligence, there can be no concern that municipal liability will be expanded, that the 21 functioning of municipal governments will be impaired, or that they will become less effective in protecting their citizens. The City's assertions in this regard are nothing more than self-serving fear- mongering (see Appellants' Supplemental Brief, p. 11). The duty of municipal ambulance attendants to provide proper emergency medical care once they undertake to treat a patient has existed for decades, and the litigation and potential liability stemming from breaches of that duty have been easily managed by municipalities. There is no reason to deviate from the status quo. At the same time, there are very powerful reasons not to grant the City the immunity it seeks. It would severely restrict (indeed, largely eliminate) the ability of patients victimized by the medical negligence of municipal ambulance attendants to obtain compensation for their injuries. Moreover, it would visit this injustice on only those patients who suffer injuries at the hands of public ambulance attendants, while permitting patients of private ambulance attendants to recover. Thus, the City's argument would effectively create a two-tiered system. It would result in disparate treatment not only with regard to the right to recover, but to the duties and obligations of ambulance attendants. Patients who receive emergency medical care from private ambulance attendants would be owed a duty of care once the medical care provider arrives on the scene, while patients who receive emergency medical care from municipal ambulance attendants would be owed no such duty unless the four elements of the special duty rule are satisfied. Patients subjected to negligent care by private attendants would be able to receive compensation for their injuries, while patients subjected to the same negligence by municipal ambulance attendants would be denied compensation unless the special duty rule is satisfied. In New York City, 35% of the patients would be owed a duty of care and be permitted to sue for negligence by private attendants, while 65% of the patients would be owed no duty of care and would be denied legal recourse for negligence absent the rare circumstance of a special duty (see supra, p. 16). 22 The impact of this disparity is illustrated by comparing the instant case to Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 364-65 (1 st Dept. 2007), where the plaintiff was permitted to amend her pleadings to assert claims of negligence against a private ambulance service, including that the "defendant failed to use the proper oxygenation device, a bag valve mask, during the period when plaintiff was trapped in the vehicle and was removed to the ambulance." Tiffany Applewhite similarly claims that she was injured because ambulance attendants failed to properly oxygenate her with a bag valve and mask when they came to her apartment and she could not breathe. However, while the plaintiff in Cherebin could recover for that negligence by private attendants, Tiffany would not be able to recover for that negligence by City ambulance attendants unless she establishes a special duty. There is no rational or logical basis for this uneven and unfair treatment. Finally, to the extent that the City relies on the fact that responsibility for EMS was transferred from HHC to the fire department in 1996 (Appellant's Reply Brief, p. 4, n. 2), that change is of zero significance. The primary function of the paramedics and EMTs who man EMS ambulances is to provide emergency medical care and treatment, and that is not altered by or dependent upon the particular municipal agency to which they are assigned. In sum, the care and treatment provided by municipal ambulance attendants once they arrive on the scene is not a governmental function necessitating a special duty. The duty to provide proper care and treatment arises from the existence of a medical care provider-patient relationship, just as it does with all healthcare providers, including private ambulance attendants. Therefore, actions seeking compensation for injuries alleged to have been caused by negligence and malpractice of municipal ambulance attendants in treating their patients should not be subject to the requirements of the special duty doctrine. 23 CONCLUSION FOR THE REASONS SET FORTH ABOVE, AS WELL AS THOSE IN THE INITIAL BRIEF OF PLAINTIFFS- RESPONDENTS, THE ORDER OF THE APPELLATE DIVISION REINSTATING THE COMPLAINT AGAINST THE APPELLANTS SHOULD BE AFFIRMED Dated: New York, New York March 28, 2013 Matthew Gaier, Esq. Thomas A. Moore, Esq. and Norman Bard, Esq. Of Counsel and on the Brief 24 Respectfully submitted, Kramer, Dillof, Livingston & Moore J /" /~"/' /, ~/ / f ~/// . ._~ By: //' ~-:::> •• ------" .... t Matthew Gaier Attorneys for Plaintiffs-Respondents 217 Broadway N ew York, NY 10007 (212) 267-4177 jfrankltn Qtourt !lre~~, 1fnt. 229 West 2Sth Street, Sth Floor New York, New York 10001 (212) 594-7902 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK COUNTY OF NEW YORK, ss.: Cesar R. Vila, being duly sworn, deposes and says that he is over the age of 18 years, is not a party to this action, and resides at 5 Fourth Place, Garden City, New York 11530. That on April 2, he served 3 copies of the Supplemental Brief of Plaintiffs-Respondents (Tiffany Applewhite v. Accuhealth, Inc.) on: MICHAEL A. CARDOZO CORPORATION COUNSEL OF TIIE CITY OF NEW YORK 100 Church Street New York, New York 10007 (212) 788-1010 Attorneys for Defendants-Appellants by depositing the same, properly enclosed in a securely-sealed, post-paid wrapper, in a mail depository regularly maintained by the United States Postal Service in the Borough of Manhattan, City of New York, addressed as shown above. Sworn to before me on April 2, 2013 /