Specific EMS Protocols May Create Triable Questions of Special Duty and Governmental Immunity

Introduction

I.M. v City of New York addresses municipal liability and medical malpractice arising from an emergency twin delivery. Denise Bryant went into labor at home and called 911. FDNY emergency medical technicians arrived shortly before the first twin, E.M., was born. Empress Ambulance Service paramedics arrived several minutes later. Bryant was transported to a hospital, where the second twin, I.M., was delivered approximately 40 minutes after E.M.

I.M. was diagnosed with serious conditions, including hypoxic ischemic encephalopathy, a brain injury caused by insufficient oxygen. Plaintiffs alleged that the responders delayed I.M.’s birth by failing to conduct an on-scene or ambulance delivery and by either directing Bryant not to push or failing to tell her to push.

The central issues were whether the City owed plaintiffs a special duty, whether governmental function immunity protected the FDNY EMTs’ conduct, and whether conflicting expert opinions concerning the governing REMAC protocols precluded summary judgment for Empress.

Summary of the Opinion

The First Department modified Supreme Court’s order only to dismiss the negligent hiring, training, and retention claim against the City because plaintiffs did not oppose that portion of the City’s motion. It otherwise affirmed the denial of summary judgment.

• Special duty: Factual questions remained as to whether the FDNY EMTs knew that failing to attempt an on-scene delivery—or allegedly instructing Bryant not to push—could cause harm.
• Governmental function immunity: The City did not establish as a matter of law that the challenged conduct actually resulted from discretionary decision-making. The parties disputed whether the REMAC protocols imposed a mandatory course of action.
• Empress’s malpractice liability: Empress made a prima facie showing through its medical expert, but plaintiffs’ paramedic and obstetrical experts raised factual disputes concerning departures from the standard of care and causation.
• Dissent: Justices Pitt-Burke and Chan would have dismissed the complaint against the City because they regarded the EMTs’ decision to transport Bryant as a protected exercise of reasoned discretion.

Analysis

The Special-Duty Requirement

Emergency ambulance response by the FDNY is a governmental function. A municipality performing such a function generally is not liable to an individual unless it owed that person a special duty distinct from its duty to the public.

Under Cuffy v City of New York, a voluntarily assumed special relationship requires:

1. an affirmative municipal undertaking on behalf of the injured person;
2. municipal knowledge that inaction could lead to harm;
3. direct contact between municipal agents and the injured person; and
4. justifiable reliance on the municipal undertaking.

The City challenged only the second element. The majority held that the EMTs’ knowledge of REMAC protocols, together with the competing expert interpretations of those protocols, permitted an inference that they knew or should have known that inaction could endanger I.M. Direct testimony admitting awareness of the risk was unnecessary because knowledge may be established circumstantially.

Governmental Function Immunity

Even when a special duty exists, a municipality may be immune if the challenged governmental conduct resulted from discretionary decision-making. The relevant distinction is between:

• Discretionary conduct: reasoned judgment that can produce more than one acceptable result; and
• Ministerial conduct: adherence to a governing rule that leaves little or no room for personal judgment.

The REMAC multiple-birth protocol directed responders to deliver each child under the emergency-childbirth protocol, clamp and cut the first child’s umbilical cord before the next birth, and begin transport if the second birth did not occur within 10 minutes.

Plaintiffs contended that these provisions required the EMTs to attempt delivery for 10 minutes before transport. The City maintained that the protocol allowed the EMTs to assess whether birth was imminent and to choose immediate transport. Because experts disagreed over what the protocol required, the majority found unresolved questions about whether the EMTs exercised protected discretion or instead disregarded mandatory directives.

The majority emphasized that emergency medical work is not categorically discretionary. Courts must examine the specific conduct on which liability is based and determine whether that conduct actually arose from reasoned judgment.

Empress and the Competing Experts

Empress’s expert emergency physician explained the applicable standard of care, why the paramedics complied with it, and why their conduct did not cause I.M.’s injuries. This satisfied Empress’s initial summary-judgment burden.

Plaintiffs responded with detailed opinions from a paramedic and an obstetrician-gynecologist. Those experts identified alleged protocol violations and connected them to the delay, oxygen deprivation, and resulting injuries. Because the expert submissions presented competing, adequately supported accounts, resolving the dispute would require credibility determinations reserved for the factfinder.

The Partial Dissent

The dissent accepted, for purposes of its analysis, that a factual dispute might exist over special duty. It nevertheless concluded that governmental function immunity barred the claims against the City.

In the dissent’s view, the EMTs assessed that I.M. was not crowning and that Bryant did not have an urge to push. They then made a reasoned choice to transport her and transferred care to Empress five minutes after E.M.’s birth. The REMAC protocols guided that assessment but did not eliminate professional judgment or require a 10-minute attempt at delivery. Thus, even if transport proved medically mistaken, the decision remained discretionary and immune from liability.

Precedents Cited

Authorities Central to the Majority

Applewhite v Accuhealth, Inc.

Established that municipal emergency medical response is a classic governmental function and that liability therefore requires a special duty. It supplied the framework for analyzing both special duty and governmental immunity.

Cuffy v City of New York

Provided the four-part test for a special relationship created through a municipality’s voluntary undertaking. The dispute centered on the second element: knowledge that inaction could cause harm.

Artemiou v City of New York

Supported the conclusion that competing expert opinions about first responders’ obligations may create factual questions unsuitable for summary judgment.

Coleson v City of New York

Supported the use of circumstantial evidence to establish municipal agents’ knowledge that inaction could lead to harm.

Sciortino v Leo

Also supported proving knowledge through circumstantial evidence concerning what responders should have known under the circumstances.

Valdez v City of New York

Required the City to show that the particular challenged conduct actually resulted from discretionary decision-making. It also directed courts to focus on the conduct underlying liability rather than broadly labeling an entire governmental activity discretionary.

Tango v Tulevech

Supplied the definition of discretionary conduct as the exercise of reasoned judgment capable of producing different acceptable results.

Morales v City of New York

Held that a generally uniform approach to emergency assessment does not necessarily transform discretionary conduct into ministerial conduct. The majority distinguished it because the plaintiffs in Morales had not identified a specific violated directive, while the plaintiffs here relied on particular REMAC provisions.

Buckner v St. Luke's Roosevelt Hosp. Ctr.

Illustrated the expert showing required for a medical-malpractice defendant to establish prima facie entitlement to summary judgment. Empress met that initial burden.

Labby v Cummings and Diaz v NYU Langone Med. Ctr.

Established that adequately supported, conflicting expert opinions present factual and credibility issues that cannot be resolved on summary judgment.

Authorities Emphasized by the Dissent

Ferreira v City of Binghamton

Confirmed that a municipality engaged in discretionary governmental conduct may invoke immunity even when the plaintiff establishes a special duty.

McLean v City of New York

Reinforced the distinction between potentially actionable ministerial conduct and immune discretionary governmental conduct.

Haddock v City of New York

Recognized that immunity depends not merely on whether an act could involve discretion, but whether discretion was actually exercised.

Kinsey v City of New York

Supported the dissent’s position that on-scene choices by emergency personnel may constitute protected discretionary decision-making.

Kralkin v City of New York

Cited for the proposition that courts need not decide special duty when the EMTs’ actions were discretionary and therefore immune.

DiMeo v Rotterdam Emergency Med. Servs., Inc.

Likewise treated the special-relationship question as irrelevant where the governmental conduct was discretionary.

Complex Concepts Simplified

Special duty

A duty owed specifically to an injured person, rather than merely to the public generally. It is necessary before a municipality may be liable for ministerial negligence in performing a governmental function.

Governmental function immunity

Protection from liability for governmental decisions involving genuine judgment and choice. A poor discretionary decision may still be immune.

Ministerial act

An act governed by a mandatory rule or procedure that leaves little room for individual judgment.

Prima facie entitlement to summary judgment

An initial showing, based on admissible evidence, that the moving party should prevail unless the opponent produces evidence of a genuine factual dispute.

Proximate cause

A sufficiently direct causal connection between the alleged negligence and the injury.

Loss of chance

A medical-malpractice theory alleging that negligence reduced the patient’s opportunity for a better outcome, even if the underlying condition already carried serious risks.

Dueling experts

Conflicting expert opinions that are each adequately supported. A judge ordinarily may not choose between them on summary judgment.

Potential Impact

The decision makes clear that the existence of emergency medical judgment does not automatically establish governmental immunity. When plaintiffs identify a specific protocol that arguably dictates a course of action, factual disputes over the protocol’s meaning and application may prevent a court from classifying the conduct as discretionary on summary judgment.

The ruling also permits the knowledge component of a special duty to be inferred from training, governing protocols, and surrounding circumstances. Future municipal-liability cases are therefore likely to focus closely on the wording of emergency-response policies, responders’ familiarity with them, and whether those policies are mandatory or merely advisory.

In medical-malpractice litigation, the decision reaffirms that detailed expert opinions addressing the standard of care, departure, and causation will ordinarily require a trial when they directly conflict.

The holding is procedural rather than a final determination of negligence. It establishes only that the City and Empress were not entitled to dismissal on the existing record; plaintiffs must still prove duty, departure, causation, and damages.

Conclusion

I.M. v City of New York holds that specific EMS protocols, interpreted differently by qualified experts, can create triable questions about both a municipality’s special duty and the discretionary character of emergency medical decisions. The ruling narrows the circumstances in which governmental immunity may be resolved as a matter of law, while preserving immunity where responders actually exercise protected judgment. It also confirms that well-supported expert conflicts concerning emergency medical care and causation belong to the factfinder rather than the summary-judgment court.