July 1, 2013
Applewhite v. Accuhealth, Inc.— N.E.2d —, 2013 WL 3185185 (N.Y. 2013)
According to the New York Court of Appeals’ decision of last week, governmental immunity is a starting point for any inquiry into EMTs’ liability for malpractice. The Court based this immunity on the famous “duty to all is duty to none” principle: in providing a vital emergency service to public in general, EMTs function in a governmental capacity and owe no duty to any specific individual. The Court explained that EMTs differ from the regular providers of medical care—doctors and nurses, who are subject to stringent licensing requirements and must have extensive educational and training credentials—in that they provide only emergency medical stabilization in Basic (as opposed to Advanced) Life Support ambulances. EMTs are also funded and remunerated differently from doctors and nurses: they operate on a limited municipal budget that depends on the taxpayers’ money and cannot afford malpractice payouts. Dilution of the EMTs’ budget might limit the municipal emergency response systems to mere transport service—a consequence that society can ill-afford.
For these reasons, the Court held that EMTs will be protected by the governmental immunity against liability for negligent omissions and misfeasance. As with the governmental immunity generally, EMTs (i.e., the municipality) might still assume liability for negligence when they have a “special relationship” with the victim. The “special relationship” exception, according to the Court, requires the presence of four conditions: (1) EMTs’ assumption of an affirmative duty to act on behalf of the victim; (2) EMTs’ knowledge that inaction could lead to harm; (3) direct contact between the EMTs and the victim; and (4) the victim’s reliance on the EMTs’ affirmative undertaking.
However appropriate they may be for other governmental agencies, these conditions become rather broad when it comes to EMTs. Under these conditions, EMTs will virtually always expose themselves to liability when they start treating the person in distress. This is exactly what happened in the case decided by the Court. After finding that the plaintiff’s mother asked the EMTs to promptly drive her daughter—who experienced a cardiac arrest—to a nearby hospital, instead of treating her at the scene, the Court held that the exception to the governmental immunity might apply and that the EMTs are consequently not entitled to a summary judgment in their favor. For that reason, as Judge Abdus-Salaam aptly remarked in her concurrence, the Court could do better by limiting the immunity to the dispatch of the ambulance by the 911 operator and by refusing to extend the immunity to EMTs’ care and treatment of the person in distress.
The Court seems to have missed the following insight, well-established in law & economics: chilling effects are best prevented by “safe harbor” rules. From an economic standpoint, the Court should either have given EMTs an unqualified immunity or adopted the distinction drawn by Judge Abdus-Salaam, while limiting EMTs liability to “willful and wanton” inflictions of harm (as under Texas Civil Practice & Remedies Code, Section 74.153, that for some inexplicable reason covers only hospital-based providers of emergency care: see here).
The Court’s decision therefore strikes me as rather unfortunate: it motivates EMTs to work defensively and opens the courts’ doors to an inflow of expensive litigation that will have no beneficial effects on primary behavior.