Hold Cities Liable for EMT Errors

Section 2. Amends the general municipal law by adding a new section 50-0. Establishes liability for emergency services employees for damages caused as a result of negligence, misconduct including any unnecessary delay in the provision of emergency medical services.

Section 3. Effective date

Existing law

None

Justification

On June 4, 2013, Ariel Russo was walking to school with her grandmother, Katia Gutierrez, when they were hit by a car on W. 97th St. near Amsterdam Ave. The unlicensed driver of the vehicle that subsequently killed Ariel and critically injured her grandmother was involved in a highspeed police chase.

According to court documents, Ariel was treated at the scene and then transported by ambulance to St. Luke's-Roosevelt Hospital. Also according to court documents, a New York City Department of Investigation (DOI) Report indicated that there was a four minute delay by the New York City Fire Department's Emergency Medical Dispatch Center personnel in processing the request for assistance and dispatching an ambulance to the scene of the accident. A footnote ( 2) in the Court Decision and Order also indicates that according to the DOI report, human error was to blame for the four minute delay.

Ariel's grandmother and mother, Sofia Russo, filed a $40 million negligence lawsuit in September, 2013, against New York City, the driver of the car and the car's owner. The driver of the car has since pleaded guilty to manslaughter in Ariel's death.

The Court largely dismissed the lawsuit, only awarding the family $150,000. The court dismissed most of the claim because there was no direct contact between Ariel or her grandmother and emergency services, and there was no indication that the City promised to send an ambulance and that the victims relied on that promise.

This bill establishes liability for emergency services employees for any damages that result from such employee's negligence or misconduct including any unnecessary delay in the provision of such emergency services.

In the Applewhite decision, the Court ratified a stringent and inflexible standard where governmental immunity will not apply. A claimant must establish that he/she had a special relationship which establishes a special duty owed to him/her by the municipality. The Judiciary, rather than the Legislature, has imposed upon our citizens the requirement that they meet four rigorous elements to establish a special relationship with the municipality which would take them out from under the overly broad realm of immunity. As defined by the Court of Appeals, in order to establish a special relationship giving rise to a special duty, there must be (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking." All four elements are required.

Applewhite provides an inflexible approach that allows no consideration of the compelling circumstances that might be involved or the nature of the municipality's acts, or lack thereof. For instance, as the Courts have determined, if the person in need of assistance is unconscious at the time that the call is placed, or when EMS finally arrives, all four elements cannot be established. Depending on the circumstance the element of reliance, direct contact, and an assumption by the municipality, through promises or actions, may be lacking, (The only very limited exception is if the 911 call is placed by a close relation, such as a mother or father).

In situations where there is an inexcusable delay in the dispatching of an ambulance, or in its arrival at the scene, or in the failure of the ambulance to be equipped with functional life support equipment, and as a result of such failures, the patient's injuries are exacerbated or his/her condition deteriorates to the point of unconsciousness or death, it is more likely than not, that at least one of the four elements will be lacking, notwithstanding that the municipality's action or inaction is responsible for that deficiency. The illogical result is that the misconduct or inaction of the municipality which prohibits or interferes with the establishing the necessary elements has the untoward effect of rewarding the municipality with immunity from liability.

The Legislature must address the scope of immunity, and the situations in which it will be applied, as well as what must be shown to establish a special relationship giving rise to a special duty that will defeat a claim of immunity. Additionally, the Legislature should enact a provision that prohibits a municipality from asserting immunity when its conduct is the cause of one of the four elements to be lacking. Finally, it should make no difference who places the call for assistance; the failure of the municipality to respond timely and/or to act with due care in and of itself, should be enough. Once a call is placed the duty to act arises; it is irrational to condition a right to recovery upon who makes the call or requests assistance.

The legislature should redefine the judiciary's inflexible concept and harsh determination as to what elements a claimant must establish to overcome a municipality's entitlement to immunity from liability for causing injury or death arising from its failure to provide good, proper and timely emergency medical care.

Legislative history

2016: S.4715- REFERRED TO LOCAL GOVERNMENT:/ A.7828-referred to local governments 2015: S.4715- REFERRED TO LOCAL GOVERNMENT:/ A.7828-referred to local governments

Fiscal implications

None to State

Local fiscal implications

To be determined

Effective date

Immediately