Discretionary EMS Non‑Transport Decisions as Immune Governmental Functions and Strict Expert-Affidavit Requirements in Medical Malpractice Summary Judgment: Commentary on Gumkowski v. Schwaab

I. Introduction

Gumkowski v. Schwaab, 2025 NY Slip Op 07139 (4th Dept Dec. 23, 2025), is a multi‑defendant medical malpractice and wrongful death case arising from the post‑operative death of a young man following cancer surgery. The Appellate Division, Fourth Department, uses this case to:

Reaffirm and apply the stringent summary judgment standards in medical malpractice actions, particularly the requirement that a defendant’s expert affidavit must address each specific negligence theory in the bill of particulars.
Clarify and solidify governmental function immunity for municipal EMS providers, holding that a paramedic’s decision not to transport a 911 caller is a discretionary governmental function immune from liability, even when governed by generally uniform protocols.
Illustrate how partial summary judgment may be granted on discrete theories of liability when a plaintiff’s expert fails to oppose a properly supported defense motion on that theory (here, an alleged failure to transfer to a tertiary care facility).

The decision addresses three distinct groups of defendants:

The Roswell Park defendants (surgeon, physician assistant, nurse) – hospital‑based caregivers during the initial admission and immediate post‑discharge period.
The Town of Tonawanda defendants – municipal EMS and police personnel involved in a 911 response where the decedent declined ambulance transport.
The Catholic Health defendants – an acute care hospital, its corporate parent, and an intensivist at the receiving hospital where the patient ultimately died.

Taken together, the court’s holdings significantly affect:

How medical defendants prepare and structure expert affidavits on summary judgment.
How plaintiffs must craft and respond to multi‑theory malpractice claims.
The extent of municipal exposure for EMS decision‑making, particularly non‑transport decisions.

II. Factual Background

A. Surgical Care and Post‑Operative Course at Roswell Park

The decedent underwent a scheduled retroperitoneal lymph node dissection (a major cancer‑related abdominal surgery) at Roswell Park Cancer Institute on January 4, 2016, performed by defendant Dr. Thomas Schwaab. He remained an inpatient until discharge on January 11, 2016.

During that admission, the decedent repeatedly reported:

Fatigue (“tired”),
Uncomfortable breathing, and
Low back discomfort.

After discharge, he had multiple telephone contacts with Roswell Park personnel, including a January 13, 2016 call to nurse defendant Christine Pieri, in which he reported shallow breathing and lightheadedness.

B. First 911 Call and Non‑Transport by Town EMS

A few hours after the January 13 call to Roswell Park, the decedent called 911 complaining of shortness of breath. Town of Tonawanda paramedics, defendants Kristian Rutenkroger and David Rice, responded. They:

Took his vital signs,
Assessed his condition,
Noted a history of anxiety,
Did not identify “other clinical indications of respiratory distress,” and
Concluded his shortness of breath was caused by anxiety.

According to the plaintiff (the decedent’s mother and estate administrator), the decedent and the paramedics jointly decided that he would not go to the emergency room, and he signed a form acknowledging refusal of treatment/transport.

C. Second 911 Call, Hospitalization, and Death

On the morning of January 15, 2016, at about 11:00 a.m., the decedent told the plaintiff that he felt like he was dying and could not breathe. He again called 911, and this time he was transported by ambulance to Kenmore Mercy Hospital (part of the Catholic Health System), arriving in the emergency department at 12:07 p.m.

He was later transferred to the intensive care unit (ICU) under the care of defendant Dr. Erik Diringer at 3:15 p.m. While Dr. Diringer was preparing to place a central line for anticipated surgery (i.e., treating an emergent condition), the decedent went into cardiac arrest around 5:00 p.m. He was pronounced dead at 5:31 p.m. The cause of death was hemorrhagic shock (catastrophic blood loss).

III. Procedural Posture and Issues on Appeal

The plaintiff commenced a medical malpractice and wrongful death action against numerous defendants, including:

The Roswell Park surgeon, P.A., and nurse;
The Town of Tonawanda, its EMS and Police Department, and the two paramedics;
Kenmore Mercy Hospital, Catholic Health System, Inc., and Dr. Diringer.

Various defendants moved for summary judgment to dismiss the complaint and cross‑claims. Supreme Court, Erie County (Licata, J.) denied the motions in substantial part. Three sets of appeals followed:

Appeal No. 1: Roswell Park defendants challenged the denial of summary judgment as to them.
Appeal No. 2:
- The Town defendants challenged the denial of their motion, arguing governmental function immunity.
- The Catholic Health defendants challenged the denial of their motion as to Dr. Diringer.

The Fourth Department:

Affirmed the denial of summary judgment for the Roswell Park defendants.
Reversed as to the Town defendants, holding they were entitled to governmental function immunity and dismissing all claims and cross‑claims against them.
Partially granted the Catholic Health defendants’ motion, dismissing only the theory that Dr. Diringer was negligent in failing to transfer the decedent to a tertiary care facility, while preserving the remaining theories against him for trial.

IV. Summary of the Court’s Holdings

A. Roswell Park Defendants – Motion Properly Denied

The court held that the Roswell Park defendants failed to meet their initial summary judgment burden because their expert affidavit did not address all specific allegations of negligence set forth in the amended bills of particulars. As a result:

Their motion for summary judgment had to be denied,
Regardless of the sufficiency of plaintiff’s opposing evidence.

B. Town of Tonawanda Defendants – Governmental Function Immunity Applies

The court held that:

Ambulance and EMS assistance rendered by municipal first responders is a governmental function.
The decisions made by the paramedics (Rutenkroger and Rice) during the first 911 call – including assessing the decedent’s condition and deciding not to transport him – were discretionary acts involving “reasoned judgment.”
Because those acts were discretionary governmental functions, the Town defendants were entitled to governmental function immunity.
Accordingly, all claims and cross‑claims against the Town, its EMS and Police Department, and the paramedics were dismissed.
Once discretion and immunity are established, the court need not analyze whether the Town owed a special duty to the decedent.

C. Catholic Health Defendants – Partial Summary Judgment Only

For the Catholic Health defendants, the court drew a sharp line between different theories of liability:

They met their initial burden on the claim that Dr. Diringer negligently failed to transfer the decedent to a tertiary care facility.
The plaintiff’s expert failed to address this transfer theory in opposing the motion.
As a result, the court granted partial summary judgment dismissing that specific theory.
However, as to other malpractice theories regarding Diringer’s care and treatment, plaintiff’s expert created triable issues of fact, so the remainder of the claims against him (and the related institutional defendants) survive.

V. Detailed Analysis

A. Summary Judgment in Medical Malpractice: The Roswell Park Defendants

1. Doctrinal Framework and Precedents

The court begins its analysis by reciting well‑established New York law governing summary judgment in medical malpractice actions:

A defendant seeking summary judgment must show either:
- No departure from the applicable standard of care, or
- That any departure did not proximately cause the patient’s injury or death.
This is typically done by submitting a competent expert affidavit.

The court cites and relies on several of its own recent decisions:

Zielinski v Blessios, 227 AD3d 1385 (4th Dept 2024) – confirming the basic burden on a med‑mal defendant to negate either departure or causation through expert proof.
Kristie M. v Mercy Hosp. of Buffalo, 240 AD3d 1228 (4th Dept 2025) – applying the same standard to hospital defendants (reaffirmation of the rule).
McMahon-DeCarlo v Wickline, 224 AD3d 1388 (4th Dept 2024) – again reinforcing the need for a defense expert to address departure and causation.

More importantly for the Roswell Park defendants, the court emphasizes a line of Fourth Department authority requiring that a defense expert affidavit must engage all specific negligence theories set out in the plaintiff’s bill of particulars:

Bubar v Brodman, 177 AD3d 1358 (4th Dept 2019) – “the defendant must submit an expert affidavit that addresses each of the specific claims of negligence raised in plaintiff’s bill of particulars.”
Wulbrecht v Jehle, 89 AD3d 1470 (4th Dept 2011) – expert affidavit that fails to address each alleged departure is insufficient as a matter of law.
James v Wormuth, 74 AD3d 1895 (4th Dept 2010) – when a defendant’s moving papers are insufficient, the motion must be denied “regardless of the sufficiency of plaintiff’s opposing papers.”

These cases collectively stand for a rigorous, plaintiff‑friendly proposition: a med‑mal defendant must comprehensively negate every pleaded negligence theory in order to shift the burden to the plaintiff. If the defense expert leaves any theory unaddressed, the motion fails outright.

2. Application to the Roswell Park Defendants

The court assumes, “arguendo,” that the Roswell Park defendants’ expert laid a sufficient evidentiary foundation (qualifications, familiarity with the standards, etc.). The critical defect, however, is that:

“the expert failed to address each of the claims of negligence on the part of the Roswell Park defendants raised in the amended bills of particulars.”

Therefore, the affidavit was “insufficient to support a motion for summary judgment as a matter of law” under Wulbrecht. Because the defense failed to meet its initial burden:

The court is not permitted to weigh the sufficiency of plaintiff’s opposing expert submissions.
Summary judgment must be denied as a matter of procedural law, per James v Wormuth.

The decision does not detail the specific unaddressed allegations, but in practice these often concern:

Failure to appropriately evaluate and respond to specific complaints (e.g., shortness of breath, back pain),
Premature discharge,
Failure to arrange proper follow‑up or provide adequate discharge instructions,
Failure to recognize or investigate signs of an evolving post‑operative complication (such as internal bleeding).

Because at least some of these theories were not met head‑on by the Roswell Park expert, the defendants never shifted the burden to plaintiff, and the case against them proceeds toward trial.

3. Significance

The Roswell Park segment of the decision is a stark reminder that:

Defendants must carefully map every expert opinion to each allegation in the bills of particulars (including amendments).
Generic “global” assurances of proper care are inadequate.
If even one significant alleged departure is left unaddressed, defendant may suffer a complete loss of its summary judgment motion.

For plaintiffs, this approach:

Reinforces the strategic value of pleading a detailed bill of particulars,
Gives them a powerful procedural lever to defeat summary judgment when the defense expert submission is incomplete.

B. Governmental Function Immunity and EMS Decision‑Making: The Town Defendants

1. Governmental vs. Proprietary Functions

The court next turns to the Town of Tonawanda defendants’ claim of immunity. New York law distinguishes between:

Governmental functions – classic public safety and public health services provided to the public at large (e.g., police, fire, EMS); and
Proprietary functions – services that could just as easily be provided by private actors (e.g., operating a hospital in some contexts, maintaining facilities).

A municipality is generally not immune for proprietary acts, but may be immune for governmental acts, especially when those acts are discretionary rather than strictly ministerial.

The court relies on:

McLean v City of New York, 12 NY3d 194 (2009) – the foundational Court of Appeals decision on governmental/proprietary function and special duty analysis.
Applewhite v Accuhealth, Inc., 21 NY3d 420 (2013) – specifically addressing EMS services; the Court of Appeals held that “ambulance assistance rendered by first responders” is a “classic governmental, rather than proprietary, function.”

In Gumkowski, the Fourth Department follows Applewhite, reiterating:

“Ambulance assistance rendered by first responders ... should be viewed as a classic governmental, rather than proprietary, function.”

2. Discretionary vs. Ministerial Acts

Even within governmental functions, immunity is not automatic. New York distinguishes:

Discretionary acts – involving “the exercise of reasoned judgment which could typically produce different acceptable results.” These acts are generally immune.
Ministerial acts – involving “direct adherence to a governing rule or standard with a compulsory result.” These may yield liability if performed negligently when a special duty exists.

This distinction comes from:

Tango v Tulevech, 61 NY2d 34 (1983) – classic authority defining discretionary vs. ministerial government action.

3. Recent Clarification in Morales and Its Use Here

The Fourth Department gives particular weight to:

Morales v City of New York, 235 AD3d 595 (1st Dept 2025) – a First Department decision clarifying that a generally uniform approach to EMS assessment and care does not change the discretionary nature of first responders’ actions or the governmental character of their function.

This is critical because plaintiffs often argue that detailed EMT/paramedic protocols transform EMS decisions into ministerial acts (mere “checklists” with no judgment). Morales rejects that argument, and the Fourth Department explicitly “adopts” that view:

“As the First Department recently made clear, ‘a generally uniform approach in assessment and care does not change the discretionary nature’ of a first responder’s actions or the governmental function they provide.”

By relying on Morales, the Fourth Department signals that:

Standardized EMS protocols do not eliminate professional judgment.
Paramedic assessments remain discretionary because multiple reasonable interpretations and decisions can arise from the same clinical data.

4. Application to the Paramedics’ Non‑Transport Decision

The Town defendants argued that the actions of paramedics Rutenkroger and Rice — assessing the decedent’s symptoms and concluding that his shortness of breath stemmed from anxiety, leading to a mutual decision not to transport — were discretionary EMS decisions.

The court agreed, finding:

The assessment of the decedent’s condition, including interpretation of vitals and history, involves clinical judgment.
The determination whether to transport is itself a discretionary professional judgment subject to multiple reasonable courses of action.

The court also references:

Kinsey v City of New York, 141 AD3d 420 (1st Dept 2016), lv denied 28 NY3d 907 (2016) – supporting the principle that even if EMT/paramedic decisions are alleged to be mistaken, they remain discretionary governmental actions not actionable in damages.

Echoing Morales and Kinsey, the court characterizes plaintiff’s allegations as going to the quality of EMS care – i.e., whether they misdiagnosed anxiety vs. a more serious condition, or should have insisted on transport:

“Plaintiff’s contentions pertain ‘to the quality of the care rendered by [Rutenkroger and Rice and,] even if such decisions prove to be erroneous, they do not cast the [Town] in damages.’”

Because the EMS actions were both:

Governmental in nature (EMS first response), and
Discretionary in character (assessment and transport decision),

the Town defendants are entitled to governmental function immunity.

5. Special Duty Analysis Dispensed With

A common feature of municipal liability in New York is the special duty requirement: when the municipality is performing a governmental function, a plaintiff usually must show that the municipality owed a duty to the plaintiff above and beyond the duty owed to the general public. This can arise from:

Statutes,
Direct contact and reliance,
Voluntary assumption of an affirmative duty to act, etc.

However, the Fourth Department, following the Second Department in:

Walker-Rodriguez v City of New York, 231 AD3d 1090 (2d Dept 2024),

holds that when municipal employees’ actions are discretionary and immune, the court need not reach the question whether a special duty existed:

“Because the actions of the Town’s employees were discretionary, this Court need not address the issue of whether a special duty was owed to decedent.”

The sequence is:

Is the function governmental? (Yes – EMS response.)
Discretionary immunity applies → case ends as to the municipality and its employees.

There is no need to analyze special duty if the immunity bar is already dispositive.

6. Impact on Municipal EMS Liability

The impact of this holding is substantial:

For municipalities and EMS agencies:
- Non‑transport decisions following a 911 call – even if harshly criticized as wrong or negligent – are likely shielded by governmental function immunity, provided they are grounded in clinical judgment.
- The existence of standardized EMS protocols does not convert these judgments into ministerial tasks.
- Municipal exposure for pre‑hospital assessment and triage is significantly narrowed.
For plaintiffs:
- Claims framed solely as “poor assessment,” “wrong diagnosis,” or “improper non‑transport” by EMS personnel will be sharply limited when municipal immunity is invoked.
- To overcome immunity, plaintiffs would likely need to show something outside discretionary clinical judgment – for example, a complete failure to respond, or actions outside the scope of EMS authority – which is rare.

Gumkowski thus reinforces and extends a protective shield around municipal EMS decision‑making in the Fourth Department, in line with recent First and Second Department authority.

C. Partial Summary Judgment and Unopposed Theories: The Catholic Health Defendants

1. Multiple Theories of Liability in One Malpractice Claim

The Catholic Health defendants (Kenmore Mercy Hospital, Catholic Health System, Inc., and Dr. Erik Diringer) faced multiple theories of liability, including:

Claims relating to their treatment of the decedent upon arrival and during ICU care.
A specific claim that Dr. Diringer was negligent in failing to transfer the decedent to a tertiary care facility (a higher‑level, specialized center).

The court notes that they met their initial burden on the motion “including by addressing plaintiff’s claim regarding Diringer’s alleged failure to timely transfer the decedent to a tertiary care facility.”

2. The Role of the Plaintiff’s Expert in Opposing Summary Judgment

Once the Catholic Health defendants satisfied their initial burden on this transfer theory, the burden shifted to the plaintiff to demonstrate triable issues of fact, typically through a contrary expert affidavit. New York law is clear that:

If a plaintiff’s expert does not address a specific defense theory that has been properly negated by the moving party, that particular theory of liability may be dismissed on summary judgment.

The court relies on:

Van Hook v Doak, 227 AD3d 1537 (4th Dept 2024) – where plaintiffs failed to address certain theories in expert opposition, the court granted partial summary judgment on those unaddressed theories.

Here, the Fourth Department applies Van Hook almost verbatim:

“Insofar as ‘plaintiff’s expert failed to address th[at] legal theor[y] in opposition to the motion,’ the Catholic Health defendants were entitled to partial summary judgment on that theory of liability.”

3. Dismissal of the Tertiary Transfer Theory, Survival of Others

The practical effect:

The failure to transfer to a tertiary care facility theory is dismissed with prejudice as a matter of law.
Other theories of alleged malpractice by Dr. Diringer – presumably:
- Timing and appropriateness of diagnostic work‑up;
- Hemodynamic monitoring and resuscitation;
- Response to signs of hemorrhagic shock;
- Timing of surgical intervention preparations;
remain because plaintiff’s expert created triable issues of fact on those points.

Thus, the Catholic Health defendants obtain a targeted narrowing of exposure rather than a full dismissal.

4. Broader Lessons

For defendants:

It is effective to segment and explicitly address each theory of liability in the moving papers; each theory can then rise or fall separately on summary judgment.
Defendants can obtain meaningful partial victories even when a full dismissal is unattainable.

For plaintiffs:

It is critical that the plaintiff’s expert match the defense submission theory‑for‑theory. Silence on any theory that the defense has properly challenged may be treated as concession.
Experts should be carefully instructed to review the bill of particulars and defense motion, and to explicitly address each alleged departure and causation link.

VI. Complex Concepts Simplified

Several legal concepts in the opinion can be difficult without legal training. Below is a brief, plain‑language explanation of the key doctrines.

1. Summary Judgment in Medical Malpractice

Summary judgment is a pre‑trial procedure where one side argues that, even if all the facts most favorable to the other side are assumed, the case can be decided as a matter of law without a trial. In medical malpractice:

The defendant (doctor, hospital) must first produce evidence (usually an expert affidavit) showing:
- They did not deviate from accepted medical practice, or
- If they did, it did not cause the patient’s injury or death.
If they do that properly, the plaintiff must respond with an opposing expert, explaining how:
- The care fell below accepted standards, and
- That deviation was a substantial factor in causing the injury.
If the defendant’s initial papers are inadequate (e.g., fail to address specific allegations), the motion is denied regardless of the plaintiff’s response.

2. Bill of Particulars

A bill of particulars is a formal document where the plaintiff lists, in detail, each act or omission they claim was negligent. It gives the defense notice of the precise allegations. In a case like this, the bill of particulars might allege:

Failure to respond properly to shortness of breath,
Failure to timely diagnose internal bleeding,
Failure to hospitalize or transfer, etc.

The defense expert must address each of these items to succeed on summary judgment.

3. Governmental vs. Proprietary Functions

When a city, town, or public agency is sued, the law asks: was it doing something only governments typically do (governmental), or something that private entities also routinely do (proprietary)?

Governmental: policing, firefighting, EMS response – services for the public’s general safety and welfare.
Proprietary: running a parking lot, operating a commercial‑type hospital, etc.

Governments have more immunity for governmental acts, especially when they involve discretion.

4. Discretionary vs. Ministerial Acts

Discretionary act – one that involves judgment, choice, and multiple potentially reasonable options. Example: A paramedic deciding, based on symptoms and vitals, whether to transport a patient immediately, observe on scene, or suggest follow‑up care.
Ministerial act – one that is purely mechanical, following a specific rule with no room for judgment. Example (hypothetical): A clerk entering a fixed date into a system exactly as prescribed by a statute.

Under New York law, governments are immune from liability for discretionary acts in the performance of governmental functions, even if the judgment call later appears mistaken, provided it was not irrational or in bad faith.

5. Special Duty

A special duty is a duty that a municipality owes to a particular person, beyond what it owes to everyone else. It can arise when:

The government explicitly promises to protect someone and they reasonably rely on that promise; or
Statutes create such a duty; or
The government voluntarily undertakes specific action directly on behalf of that person.

In many municipal liability cases, a plaintiff must show:

The function was governmental, and
A special duty existed, and
The acts were negligent and not protected by discretionary immunity.

In Gumkowski, because the acts were deemed discretionary and immune, the court did not need to examine whether a special duty existed.

6. Tertiary Care Facility

A tertiary care facility is a high‑level, specialized hospital with advanced capabilities (e.g., complex surgery, organ transplant, specialized ICUs). A claim that a doctor failed to transfer a patient there alleges that the doctor should have recognized that the patient’s condition required a higher level of specialized care than the current hospital could provide.

VII. Broader Impact and Future Implications

A. For Medical Defendants and Their Counsel

Expert Affidavit Precision: The Roswell Park segment reinforces a disciplined approach:

Chart every alleged negligence claim in the bill of particulars.
Ensure the defense expert opinion has a discrete, explicit response to each one (both on standard of care and causation).
Review amendments carefully; an amended bill of particulars can introduce new theories that must be addressed.

Failure to do so can render an otherwise strong summary judgment motion legally insufficient on its face.

Segmented Summary Judgment: The Catholic Health segment confirms the strategic value of moving for:

Partial summary judgment on particular theories of liability;
Narrowing the scope of trial, expert testimony, and potential verdict exposure even where a full dismissal is not achievable.

B. For Plaintiffs’ Attorneys

Detailed Pleading: A carefully detailed bill of particulars increases the defendant’s burden on summary judgment.
Holistic Expert Oppositions: Plaintiffs must instruct experts to address all defense arguments and all theories pled. Failure to respond to a particular theory (e.g., failure to transfer) can lead to its dismissal even if other theories survive.

C. For Municipalities and EMS Providers

Expanded EMS Immunity: The Town defendants’ victory underlines that:

Paramedics’ on‑scene clinical assessments and transport decisions are discretionary acts in a governmental function.
Such acts are immune from suit even when plaintiffs argue the care was substandard or “wrong”.
Standardized EMS protocols do not strip these acts of their discretionary character.

Municipalities can rely on this decision in the Fourth Department to defend suits arising from:

Alleged failure to transport,
Alleged misassessment of urgency,
Alleged delay in responding to or escalating care on scene.

D. Inter‑Departmental Harmonization

The Fourth Department’s reliance on Morales (1st Dept) and Walker-Rodriguez (2d Dept) helps harmonize New York’s intermediate appellate courts on:

Viewing EMS as a classic governmental function;
Treating protocol‑based EMS clinical decision‑making as discretionary;
Ending the analysis once discretionary governmental function immunity is found, without reaching special duty, in appropriate cases.

This alignment enhances predictability for litigants statewide and signals to the Court of Appeals that the departments are converging on a uniform approach.

VIII. Conclusion

Gumkowski v. Schwaab is an important Fourth Department decision at the intersection of medical malpractice and municipal liability. Its key contributions are:

For med‑mal summary judgment:
- Reaffirming that defense expert affidavits must respond to each specific alleged departure in the bill of particulars. Any gap is fatal to the motion, regardless of plaintiff’s opposition.
For municipal immunity and EMS:
- Holding that EMS non‑transport and triage decisions by paramedics are discretionary governmental acts protected by governmental function immunity, even under uniform protocols.
- Clarifying that once such discretion is established, courts need not undertake special duty analysis.
For multi‑theory malpractice claims:
- Demonstrating that defendants can win partial summary judgment on specific theories (e.g., failure to transfer to tertiary care) when plaintiffs’ experts fail to engage those theories in opposition.

In practical terms, the decision:

Strengthens plaintiffs’ procedural footing against incomplete medical defense motions,
Sharply limits municipal exposure for paramedic judgment calls in pre‑hospital settings, and
Encourages precise, theory‑by‑theory litigation strategy on both sides of complex medical malpractice cases.

As medical care increasingly involves complex handoffs among surgeons, specialty cancer centers, EMS, and community hospitals, Gumkowski offers a clear blueprint for how New York courts will allocate responsibility – and immunity – across that continuum of care.