Tiffany Applewhite,, et al., Respondents,v.Accuhealth, Inc., et al., Defendants, City of New York, Appellant.BriefN.Y.January 7, 2013APL-2012-00079 Bronx County Clerk's Index No. 22234/98 «tnurt nf Appeals nft4e ~tate nf New lnrk ------·••.------ To be Submitted TIFFANY APPLEWHITE, an infant under the age of 14 years, by her mother and natural guardian, SAMANTHA APPLEWHITE and SAMANTHA APPLEWHITE, Individually, Plaintiffs-Respondents, -against- ACCUHEALTH, INC. and LINDA RUSSO, R.N., Defendants, -and- EMERGENCY MEDICAL SERVICES and THE CITY OF NEW YORK, Defendants-Appellants. BRIEF FOR AMICUS CURIAE NEW YORK STATE TRIAL LAWYERS ASSOCIATION IN SUPPORT OF PLAINTIFFS-RESPONDENTS Date Completed: May 14,2013 NEW YORK STATE TRIAL LAWYERS ASSOCIATION Amicus Curiae 132 Nassau Street, 2nd Floor New York, New York 10038 Tel.: (212) 349-5890 Fax: (212) 608-2310 TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... I FACTS ....................................................................................................................... 2 QUESTION PRESENTED ....................................................................................... 4 POINT I: Governmental immunity does not apply to the provision of on the scene medical care, which is governed by ordinary negligence principles in which special duty/ relationship rules have no application .................................................................... .4 CONCLUSION ......................................................................................................... 8 i TABLE OF AUTHORITIES CASES Cohen v. Cabrini, 94 N.Y.2d 639 (2000) ................................................................. 5 Cuffy v. NYC, 69 N.Y.2d 255 (1987) ................................................................... 3, 6 Dinardo v. NYC, 13 N.Y.3d 872, 874 (2009) ........................................................... 5 Eiseman v. State, 70 N.Y.2d 175 (1987) ................................................................... 5 Florence v. Goldberg, 44 N.Y.2d 189 (1978) ........................................................... 5 Fonville v. NYCHHC, 300 A.D.2d 623 (2d Dep't 2002) ..................................... 3, 7 Hamilton v. Beretta, 96 N.Y.2d 222 (2001) .............................................................. 5 Kowal v. Deer Park FD, 13 A.D.3d 489 (2d Dep't 2004) ................................... 3, 7 Laratro v. NYC, 8 N.Y.3d 79 (2006) ....................................................................... 6 Lauer v. NYC, 95 N.Y.2d 95 (2000) ....................................................................... 5 Matter ofWTC Bombing, 17 N.Y.3d 428 (2011) .................................................... 4 McLean v. NYC, 12 N.Y.3d 194 (2009) ................................................................... 5 Miller v. State, 62 N.Y.2d 506, 513 (1984) .............................................................. 6 Purdy v. Pub. Admin., 72 N.Y.2d 1 (1988) .............................................................. 5 Riss v. NYC, 22 N.Y.2d 579 (1968) ......................................................................... 5 Schrempf v. State, 66 N.Y.2d 289 (1985) ............................................................. 5, 6 Sebastian v. State, 93 N.Y.2d 790 (1999) ................................................................. 5 Sorichetti v. NYC, 65 N.Y.2d 461 (1985) ................................................................ 6 ii Tenuta v. Lederle Labs, 90 N.Y.2d 606 (1997) ........................................................ 5 Valdez v. NYC, 18 N.Y.3d 69 (2011) ....................................................................... 4 Velazquez v. NYCHHC, 65 A.D.3d 98 (1st Dep't 2009) .......... : ............................. 3 STATUTES 10 NYCRR §800.3(d) ............................................................................................... 5 10 NYCRR §800.15(a) .............................................................................................. 5 3 RCNY §4900-02 .................................................................................................... 7 iii COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------X Doc. # 3944/10 Tiffany Applewhite, infant under 14 by rnlnlg Samantha Applewhite & Samantha Applewhite indiv. Plaintiff-respondent -against- Accuhealth Inc. and Linda Russo RN Defendants -and- Emergency Medical Service and The City of New York Defendants-appellants -----------------------------------------------------------X BRIEF OF AMICUS CURIAE NEW YORK STATE TRIAL LAWYERS' ASSOCIATION PRELIMINARY STATEMENT In this action which involves the provision of negligent medical care, the New York State Trial Lawyers' Association ("NYSTLA") submits this brief as amicae curiae for the plaintiff, in response to this Court's request for additional comment on the issue of the applicability of governmental immunity to emergency medical care provided at the scene of an incident. For the reasons set forth herein, NYSTLA believes the case should be decided under ordinary negligence principles. 1 FACTS Tiffany Applewhite, aged 12, was taking methylprednisolone, also known as solu-medrol, to combat for uveitis, an eye inflammation that could compromise her vision; Linda Russo was a registered nurse who worked for Accu-Health Inc. performing intravenous home infusions. On the day in question, Ms. Russo went to plaintiffs' apartment carrying a blood pressure cuff, a stethoscope and a one-way breather for cardiopulmonary resuscitation; the infusion equipment was already in the apartment. While she administered the "Solu-Medrol", Tiffany began complaining that she could not breathe. Ms. Russo stopped the drip and told Ms. Applewhite to call 911 for an ambulance. The 911 operator received a call for difficulty breathing, and dispatched a basic life support (BLS) ambulance; an advanced life support (ALS) ambulance was not available at the time. Tiffany subsequently went into respiratory and then cardiac arrest, and Ms. Russo administered CPR. Two Emergency Medical Technicians (EMTs) employed by New York City Emergency Medical Services (EMS) arrived. They went to the Applewhite apartment without oxygen or a stretcher. They did not immediately transport Tiffany to the hospital, and instead called for an ALS ambulance. By the time an ALS ambulance arrived and intubated Tiffany she sustained brain damage. The plaintiff brought suit against the City and EMS alleging that they were 2 negligent in failing to bring oxygen to the apartment, in not bringing the patient immediately to the hospital, and by delaying for several minutes in calling for an ALS ambulance. The Appellate Division has noted that the rapid transportation of distressed persons to the hospital was the purpose of the municipal ambulance system, and that special duty rules can be applicable in some situations to tort claims brought by injured plaintiffs against the City for the actions of EMS employees. See, Cuffy v. NYC, 69 N.Y.2d 255, 260 (1987). However, in this case, the Appellate Division found that the City acted "in a ministerial capacity" when it failed to "bring oxygen to the apartment" and when it waited "for the ALS ambulance that arrived 20 minutes later instead of taking the infant plaintiff to the hospital that was four minutes away." It rejected plaintiffs claim that the City administered improper medical treatment, distinguishing cases in which ordinary negligence principles applied Kowal v. Deer Park FD, 13 A.D.3d 489 (2d Dep't 2004); Fonville v. NYCHHC, 300 A.D.2d 623 (2d Dep't 2002). The First Department itself, however, had held that negligence by City emergency workers in carrying an ill person down a stairway did not fall within the doctrine of governmental immunity. See, Velazquez v. NYCHHC, 65 A.D.3d 981- 2 (1st Dep't 2009). Thus, the First Department's decision, though the plaintiff is a respondent in this appeal, may have unduly circumscribed plaintiffs remedies and 3 theories of recovery. Pursuant to this Court's recent order, plaintiff has, we submit, properly, taken the position that the provision of medical care is proprietary and does not involve a governmental function. Provision of emergency medical services at the scene creates a provider-patient relationship imposing a duty of care to which the special duty doctrine should not be applied. NYSTLA submits that this Court should endorse plaintiffs reading of the law as set forth in detail below. QUESTION PRESENTED 1. Where a medical care provider provides emergency medical treatment at the scene, should the doctrine of governmental immunity apply? This question, we submit, should be answered in the negative. POINT I: Governmental immunity does not apply to the provision of on the scene medical care, which is governed by ordinary negligence principles in which special duty/relationship rules have no application. The City long ago waived sovereign immunity; however, this Court has long held that the common law doctrine of governmental immunity continues to provide a defense to claims challenging discretionary actions taken during the performance of governmental functions. Valdez v. NYC, 18 N.Y.3d 69 (2011); Matter ofWTC Bombing, 17 N.Y.3d 428 (2011). 4 "Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff apart from the duty to the public in general." McLean v. NYC, 12 N.Y.3d 194, 203 (2009); see also, Dinardo v. NYC, 13 N.Y.3d 872, 874 (2009); Lauer v. NYC, 95 N.Y.2d 95 (2000). However, the provision of medical care and treatment, even by municipal defendants, ordinarily involves a proprietary function which is not governmental in nature. See, Sebastian v. State, 93 N.Y.2d 790 (1999); Schrempf v. State, 66 N.Y.2d 289 (1985); Riss v. NYC, 22 N.Y.2d 579 (1968). Of course, no one can be liable in negligence unless he owes a duty of care to the one he is alleged to have harmed. Hamilton v. Beretta, 96 N.Y.2d 222 (2001); Eiseman v. State, 70 N.Y.2d 175 (1987); Florence v. Goldberg, 44 N.Y.2d 189 (1978). But such a duty is presented in a physician-patient or similar relationship. Cohen v. Cabrini, 94 N.Y.2d 639 (2000); Tenuto v. Lederle Labs, 90 N.Y.2d 606 (1997); Purdy v. Pub. Admin., 72 N.Y.2d 1 (1988). NYSTLA urges this Court to hold that emergency treatment provided by EMTs and like professionals constitutes medical care and treatment, as reflected in 10 NYCRR §800.3[d] and 10 NYCRR §800.15[a], and that those providing such services are subject to liability under ordinary professional malpractice principles, without the need for showing the existence of a special relationship or duty. 5 Under the City's scenario, its EMTs are entitled to immunity for non- discretionary acts, while EMTs employed by a private entity are not. The law of special duty, on the contrary, was designed only to protect the government from liability with respect to duties owed to the public at large. See, Cuffy v. NYC, supra; Sorichetti v. NYC, 65 N.Y.2d 461 (1985). We are not here considering the timeliness of an EMS response or other allegation related to conduct before the medical care providers arrived on the scene to provide treatment (Laratro v. NYC, 8 N.Y.3d 79 (2006)), but rather negligence in the provision of emergency medical treatment after they arrived. Schrempf, supra; Miller v. State, 62 N.Y.2d 506, 513 (1984). The City's proposed two-tiered system is illogical. It means that if two twins suffer from the same malady, 911 is called and two ambulances are dispatched, one a City ambulance and the other a private ambulance, and the attendants manning each ambulance both make the same error of treatment, one twin would have a cognizable claim for negligence while the other would not. Plaintiffs supplemental brief makes clear that those decisions from foreign jurisdictions which hold to the contrary are not accord with New York law with regard to either duties of care owed by medical care providers or the distinction between proprietary and governmental functions. It further demonstrates that private ambulances participate in the City's 911 system, and that both private and 6 governmental ambulances perform the same functions. This militates against the two-tiered system advocated by the City. It is also highly significant in applying the proprietary/governmental function analysis that like private ambulances, City ambulances bill patients for their services pursuant to a schedule of charges (3 RCNY §4900-02). In fact, that circumstance is dispositive in establishing medical personnel who staff ambulances perform a proprietary function, and that City EMTs and paramedics are much closer in nature and function to private EMTs and paramedics than they are to police officers and firefighter. The concerns raised in the Amicus Curiae Brief of the New York State Conference of Mayors and Municipal Officials do not support a finding that this case involved a governmental rather than a proprietary function. Their assertions that liability in this circumstance would create a new standard, increase municipal liability, overburden the courts with litigation, and result in a chilling effect on the provision of municipal ambulance services are all without merit, because it has long been understood that public ambulances are liable for negligence in the provision of care once they arrive on the scene, just like any private ambulance. Kowal, supra; Fonville, supra. In other words, a finding that they perform proprietary functions would not change anything, but would just maintain the status quo. For the same reason, there no basis for their expressed concern that 7 EMS employees would have to fear potential liability when making split-second decisions. Moreover, private ambulances provide the same services and make the same kind of decisions under the same circumstances, and they require no special protections from liability when they do so in a negligent manner. Accordingly, based on the State's jurisprudence and public policy considerations, as well as common sense, we believe that the provision of emergency medical care on site should be deemed a proprietary function, and we ask this Court to hold that once EMS personnel arrive on a scene, a medical care provider relationship is established with the patient, such that improper care or treatment is to be governed by normal negligence principles without regard to special duty rules or requirements. CONCLUSION Based upon the foregoing, it is respectfully submitted that this Court should rule that the provision of EMS services, even by City workers, is a proprietary, rather than governmental, function, and should affirm the order denying defendant's motion for summary judgment in all respects. 8 Dated: New York, New York May 13,2013 By: By: Respectfully submitted, NEW YORK STATE TRIAL LA WYERS ASSOCIATION Michael Jaffe, Esq. President 132 Nassau Street New York, New York 10038 212-344-5890 POLLACK POLLACK ISAAC & DE CICCO Brian J. Isaac Esq. 225 Broadway Suite 307 New York, NY 10007 212-233-8100 Of counsel. 9