Applewhite v. Accuhealth, Inc.

Abdus-Salaam, J. (concurring).

This Court must balance the important public policy of insulating the government from tort liability for essential services it provides to the public, with the equally important principle that those who undertake to provide medical treatment must do so with reasonable care. While I agree that the Appellate Division properly reinstated the complaint against the City, I believe that the majority’s rationale is incorrect. I would hold that the EMTs performed a proprietary function, and that there is a triable issue of fact concerning proximate cause.

*435As an initial matter, I differ with the majority’s interpretation of the Appellate Division’s decision. According to the majority, the Appellate Division held that the EMTs’ actions were governmental in nature and that issues of fact existed as to whether the City had assumed a special duty to plaintiffs and had proximately caused their injuries (see majority op at 425).

My reading of the decision is that the Appellate Division determined that the City “assumed a special duty toward th[ese] plaintiff[s]” (90 AD3d 501, 504 [1st Dept 2011]), and that no issues of fact remained as to this point. The court held that the EMTs’ “assurances and advice” that it would be best to wait for the ALS ambulance rather than transport Tiffany to the hospital “constituted an assumption, through promises or actions, to act on behalf of infant plaintiff” (id. [internal alterations and quotation marks omitted]), and that “[t]he 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” (id. at 505). There was no dispute between the parties as to whether the remaining two factors required for a special relationship were satisfied. Thus, the dispositive issue of fact discerned by the Appellate Division was with respect to proximate cause, not special relationship.1

I disagree with the majority’s conclusion that municipal EMTs perform a governmental function. The provision of medical treatment, whether by an EMT or a doctor, either in an emergency or a non-emergency situation, simply is not a governmental function.

Here, the City, by dispatching an ambulance to plaintiffs’ home where EMTs treated Tiffany, acted in a dual proprietary and governmental capacity. As we observed in Matter of World Trade Ctr. Bombing Litig. (17 NY3d 428 [2011]):

“[I]n light of the fact that the varied functions of a governmental entity can be interspersed with both governmental and proprietary elements, 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” (17 NY3d at 447).

*436I agree with plaintiffs and my concurring colleagues that the dispatch of the ambulance by the 911 operator was a governmental act (see Laratro v City of New York, 8 NY3d 79, 82-83 [2006]; Sherpa v New York City Health & Hosps. Corp., 90 AD3d 738, 740 [2d Dept 2011]), while the EMTs’ care and treatment of Tiffany was proprietary (see e.g. Schrempf v State of New York, 66 NY2d 289, 293-294 [1985] [state mental hospital engaged in proprietary function by treating and releasing patient]; Kowal v Deer Park Fire Dist., 13 AD3d 489, 491 [2d Dept 2004] [“misfeasance with respect to medical treatment ... is not a governmental function” and special relationship not applicable where fire department ambulance crew member “undertook the duty to treat the decedent”]; Fonville v New York City Health & Hosps. Corp., 300 AD2d 623, 624 [2d Dept 2002] [claim that EMT rendered improper treatment reinstated, even absent a showing of special duty, because EMT had duty to perform with due care]). That the City’s emergency medical services are assigned to the fire department does not mean, as suggested by the majority, that the entire EMS operation, including medical treatment, is a governmental function.

Nor does our decision in Laratro mandate that the entire EMS operation be considered a governmental function. In Laratro, we determined that, absent a special relationship, the City could not be held liable for the alleged negligence of a 911 operator because the dispatch of ambulances in response to 911 calls is a governmental function (see 8 NY3d at 82-83). This case does not involve a 911 operator’s delay in responding to an emergency call; rather, it concerns the allegedly negligent medical care and treatment rendered by the EMTs once they arrived at plaintiffs’ home. Thus, as plaintiffs and my concurring colleagues point out, Laratro does not necessarily extend to, or control the outcome, in this case.

It is beyond dispute that in New York, government hospitals are subject to liability for negligent medical treatment without any required showing by a plaintiff of a special relationship (see e.g. Schrempf, 66 NY2d at 293-294; Sukhraj v New York City Health & Hosps. Corp., 106 AD3d 809 [2d Dept 2013]).2 By grouping the provision of medical treatment by EMTs with the *437actions of “other first responders” (majority op at 428), the majority misses the point that unlike fire and police protection— services not traditionally provided by the private sector—the private sector has long been involved in the provision of ambulance and emergency medical services (cf. Sebastian v State of New York, 93 NY2d 790, 795 [1999] [patient’s placement and escape from a facility for juvenile delinquents “derives from State activities that are distinctly governmental and have no private sector counterpart”]). In fact, roughly 35% of all 911 ambulance tours in New York City are operated by private ambulances.3 Those who undertake to provide medical treatment must exercise reasonable care—regardless of whether the caregiver is a doctor, nurse, or EMT, or whether the care occurs in a “pre-hospital setting” (majority op at 429) or a hospital setting—and this duty should not be circumscribed by the constraints of governmental immunity.

I share the concerns of my colleagues that tort liability for negligent treatment rendered by municipal EMTs and other medical personnel will burden the public fisc and possibly dissuade municipalities from continuing to provide emergency medical treatment in connection with their ambulance services. However, I do not believe this concern should cause us to employ a strained legal analysis in order to reach a desired result.

In the majority’s view, defining medical treatment by EMTs as a governmental function, and requiring plaintiffs to demonstrate that a special duty exists, advances public policy by limiting the exposure of municipalities to excessive tort recoveries. This decision will not achieve the majority’s goal. It will be the *438rare case where an injured party, having been assessed and treated by an EMT, will not be able to demonstrate the four elements of a special relationship: (1) assumption by the EMT of an affirmative duty to act on behalf of the injured party, (2) knowledge by the EMT that inaction could lead to harm, (3) some form of direct contact between the EMT and the injured party, and (4) that party’s justifiable reliance on the EMT’s affirmative undertaking (see Mastroianni v County of Suffolk, 91 NY2d 198, 204 [1997]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]). Thus, even in special duty cases, municipalities will likely be exposed to liability.

In that regard, unlike my concurring colleagues who find no record evidence of a special relationship, I think the facts of this case demonstrate that the EMTs assumed a special duty toward plaintiffs (see 90 AD3d at 504). Merely by undertaking to treat Tiffany, the EMTs assumed an affirmative duty to act on her behalf (see Cuffy, 69 NY2d at 260 [a municipality assumes an affirmative duty to act “through promises or actions”]) and plaintiffs justifiably relied on the EMTs “who had taken control of the emergency situation” (90 AD3d at 505). Even if I could agree with the majority that the EMTs were performing a governmental function, I would nonetheless conclude that there is no triable issue regarding a special relationship between plaintiffs and the EMTs.

Chief Judge Lippman and Judges Read and Rivera concur with Judge Graffeo; Judge Smith concurs in result in an opinion in which Judge Pigott concurs; Judge Abdus-Salaam concurs in result in a separate opinion.

Order affirmed, with costs, and certified question answered in the affirmative.

. The Appellate Division did indicate that the mother’s affidavit in opposition to a different motion made by another defendant, nurse Russo, might have raised an issue of fact because it did not specifically allege that the mother asked the EMTs to transport her daughter to the hospital. But the court found her affidavit “irrelevant” to the City’s motion (90 AD3d at 505).

. In this regard, the majority’s citation to Edwards v City of Portsmouth (237 Va 167, 375 SE2d 747 [1989]), a decision by the Supreme Court of Virginia, is inapposite. The Virginia court has held, in contrast to New York jurisprudence, that “hospital services provided by a city [are] an exercise of a governmental function” (Edwards, 237 Va at 171, 375 SE2d at 749, citing City *437of Richmond, v Long, 58 Va [17 Gratt] 375 [1867]). Similarly, many of the other out-of-state cases cited by the majority, which address a municipality’s general authority to operate a public ambulance system (see Ayala v City of Corpus Christi, 507 SW2d 324, 328 [Tx Civ App 1974]) and its potential liability for the negligent actions of 911 dispatchers (see Ross v Consumers Power Co., 420 Mich 567, 654, 363 NW2d 641, 677 [1984]; Wanzer v District of Columbia, 580 A2d 127, 131 [DC Ct App 1990]), ambulance drivers (see King v Williams, 5 Ohio St 3d 137, 140, 449 NE2d 452, 455 [1983]; McIver v Smith, 134 NC App 583, 587, 518 SE2d 522, 525 [Ct App 1999]; Smith v City of Lexington, 307 SW2d 568, 569-570 [Ky Ct App 1957]), and operators of police vehicles (see Thornton v State, 233 Kan 737, 742, 666 P2d 655, 659 [1983]), do not support the conclusion that the provision of medical care by EMTs must be classified as a governmental function.

*436 (n. cont’d)

. Hearing on the Fiscal Year 2013 Executive Budget, Finance Division Briefing Paper, Fire Department, June 1, 2012 at 5, available at http://council. nyc.gov/downloads/pdf/budget/2013/execbudget/057%20Fire%20Department .pdf (last visited June 19, 2013).