FDNY Prevails in Wrongful Death Suit, No Special Duty

A wrongful death lawsuit against FDNY over the failure to transport a woman to the hospital, has been dismissed. On one level the case could serve as lesson on the importance of good documentation, or perhaps the perils of talking a sick patient into a “refusal against medical advice.” In the end, the decision was based on a topic we discuss here on a regular basis: the Public Duty Doctrine and the concept of a “special duty”.

The suit was filed by Anthony Pioli on behalf of the estate of his mother, Anna Pioli, who died in 2016. According to the decision:

  • On October 5, 2016, at approximately 7:17 pm plaintiff called emergency services reporting that his mother, Anna Pioli, suffered from a blood disorder, was shivering, her legs were leaking water and hurting.
  • Emergency Medical Services responded by dispatching a Basic Life Support ambulance to his mother’s residence at 1650 80th Street, in Brooklyn.
  • The Prehospital Care Report Summary states the basis for the dispatch was recorded as “sick” and chief complaint as “not feeling well”.
  • The ambulance with Emergency Medical Technicians Timur Chernichkin & Joseph Deuel arrived approximately six (6) minutes later at Anna Pioli’s residence at 7:23 pm.
  • Upon their arrival plaintiff engaged the EMTs regarding his mother’s physical ailments.
  • The EMT’s then began assessing and examining the patient. They evaluated her mental competency, tended to the discharging fluid and pain in her leg, and inquired about current medication.
  • It was determined that Anna Pioli was alert, oriented but had leg pains, swelling, chills and nausea. She had no fever and “vitals were stable”.
  • The EMT’s concluded their patient was suffering from “edema”, “not in a dire condition”, and bandaged the leg that was discharging fluid.
  • The EMTs further stated that Anna Pioli “should see her primary care physician” the next morning. They stated to her that it would be better that she to wait until the morning and see her primary care physician because “there are more emergencies out there, and emergency rooms are overcrowded.”
  • Anna Pioli then signed a Refusal of Medical Assistance and both technicians left.
  • The EMT’s remained outside the residence in their ambulance in the case circumstances change and after some time left.
  • The next morning plaintiff received a call from his father that Anna Pioli was again not well. “She was out of it.”
  • Upon arriving at the residence, plaintiff called emergency services and mother-Pioli was then transported to NYU Lutheran Medical Center and admitted.
  • On October 11, 2016, five days later, after suffering two cardiac arrests at the hospital Anna Pioli died.
  • On October 25, 2017, plaintiff brought the present suit against the City for wrongful death, careless and negligence in the medical care and treatment rendered to the decedent, and failure to obtain informed consent of the decedent.

The city moved for summary judgment arguing that even if the EMTs were negligent, the city could not be held liable in the absence of a “special duty” owed by the city or the responders to Mrs. Pioli. Often referred to as the public duty doctrine, the concept is that government can only be held liable for negligence when it violates a special duty owed to a certain member of the public. The duty must be greater than the duty that government owes to the public in general. As explained by Judge Rosemarie Montalbano:

  • [W]here a municipality exercises a governmental function, the threshold inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party.
  • Assistance rendered by FDNY EMTs is viewed as “a classic governmental” function, which requires the existence of a special duty.
  • “Without a [special] duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm”.
  • “The core principle underlying this special duty requirement is that to sustain liability against a municipality, the duty breached must be more than that owed the public generally.”
  • The Court of Appeals has recognized that “a special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition.”
  • Plaintiff relies on the second of these situations, arguing that the City voluntarily assumed a special relationship with the decedent beyond the duty that is owed to the general public.
  • Four elements must exist to establish that relationship, including: “(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.”
  • A plaintiff must satisfy each of these factors in order to establish a special relationship.
  • Here, the parties here dispute the second and fourth elements.
  • Regarding the second element, defendant argues that plaintiff cannot claim the EMTs had knowledge that their inaction or failure to bring the deceased to the hospital on evening of October 5th would have caused her harm.
  • Plaintiff claims that the EMTs should have been aware Anna Pioli had an infection.
  • The EMT testimony shows they recommended to her that she see her primary care physician the following morning. There is nothing presented that demonstrates the EMTs had knowledge that Anna Pioli’s condition would have led to her passing within the next six days.
  • Regarding the fourth element, the City argues that the deceased did not justifiably rely to her detriment on any municipal promise.
  • Defendant’s also point that the testimony shows the deceased had ceased taking her medication including oral antibiotics prescribed for her leg infection. Defendant’s also call attention to the RMA.
  • The decedent signed the RMA expressly stating that she did not want to be transported to the hospital.
  • Plaintiff points to his testimony in which he states that his mother asked to go to the hospital; however, the EMTs told the her to wait until the morning to see her primary physician.
  • Plaintiff has not shown the nexus between decedent’s alleged reliance on the EMT’s recommendations to wait till the next morning to see her primary care physician and her demise approximately five to six days later.
  • Notably, plaintiff’s sister testified that after decedent was admitted to the hospital the next morning she went undiagnosed, by physicians, for the following two to three days.
  • Nothing was proffered that a different outcome would have resulted had Anna Pioli been transported to the hospital approximately ten (10) to twelve (12) hours earlier than she had originally done.
  • Accordingly, summary judgment is GRANTED in favor of the City. The case is DISMISSED. The Clerk is ordered to enter judgment accordingly.

Here is a copy of the decision:

It would be easy to look at this ruling and conclude that poor documentation and improper use of RAMAs are not that big of a concern, particularly when we have liability protection via judicially-created rules like the public duty doctrine. That is why I cringe when folks ask me for cases where a fire department has been held liable for things like poor documentation or for RAMA problems. For every case that finds liability there is one like this that blunts it. That is the peril of relying on the outcome of lawsuits to guide us in terms of what we can and should do.

A better approach is to look beyond the legal outcome and focus on harm, in this case harm to Mrs. Pioli. Did the EMTs play a role in unnecessarily hastening Mrs. Pioli’s demise? As I read the facts, it would appear the medics played no role in Mrs. Pioli’s death. If the doctors were unable to properly diagnose and treat her infection the following day or the day after that, a transport 12 hours earlier would not have helped. That does not mean poor documentation or talking a sick person out of a transport while having them sign a RAMA form is advisable.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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