Clarken v. US

• Decision Date: 19 February 1991
• Docket Number: Civ. A. No. 89-1841.
• Citation: 791 F. Supp. 1029
• Parties: Nancy CLARKEN, Individually and as Executrix of the Estate of Matthew J. Clarken, Plaintiff, v. UNITED STATES of America, John Doe, Robert Roe and Martin Doe, (such names being fictitious), Defendants.
• Court: U.S. District Court — District of New Jersey

791 F. Supp. 1029

Nancy CLARKEN, Individually and as Executrix of the Estate of Matthew J. Clarken, Plaintiff, v. UNITED STATES of America, John Doe, Robert Roe and Martin Doe, (such names being fictitious), Defendants.

Civ. A. No. 89-1841.

United States District Court, D. New Jersey.

February 19, 1991.

Kalman Harris Geist, Paterson, N.J., for plaintiff.

Michael Chertoff, U.S. Atty. by Daniel J. Gibbons, Asst. U.S. Atty., Newark, N.J., for defendants.

OPINION

BISSELL, District Judge.

This matter arises before the Court pursuant to the defendant's motion in limine to determine whether the plaintiff must prove gross negligence.

I. FACTS AND BACKGROUND

Plaintiff Nancy Clarken seeks damages for the death of her husband allegedly as a result of the negligence of emergency medical technicians ("EMT's") employed by a government-owned hospital. It is presently scheduled for trial on January 14, 1992.

On March 1, 1987, Matthew Clarken suffered a cardiac arrest while a guest at the Thayer Hotel, located on the campus of the United States Military Academy at West Point, New York. The hotel staff notified Keller Army Community Hospital, and an ambulance was dispatched. The ambulance was staffed by two U.S. Army medics, Privates Carlos Smith and John Stratiff. Defendant alleges that these two medics have training equivalent to that of a New York State basic emergency medical technician.

Mr. Clarken was initially conscious when the medics arrived, but thereafter lost consciousness. He was eventually resuscitated at the Keller Army Hospital, but suffered severe brain damage causing him to remain in a vegetative state until his death on January 6, 1988. The plaintiff has offered six theories to support her claim of negligence:

1. Neither Stratiff nor Smith attempted to take a blood pressure reading after decedent became unconscious.

2. No cardio-pulmonary resuscitation "CPR" was begun until decedent was placed in the ambulance and only after it was ordered by a physician via radio communication between the ambulance and the hospital — approximately six minutes after the need for it clearly was apparent.

3. Decedent vomited but there was no suctioning of the oral cavity nor any placement of any oral airway.

4. The medical personnel deviated from the acceptable standard of care with tragic consequences. These deviations included:

a) Failure to take blood pressure;

b) A failure to secure the airway by inserting an oral airway;

c) A failure to provide supplemental oxygen in a timely manner;

d) A failure to provide supplemental oxygen by the appropriate method, i.e., bag-valve-mask;

e) A failure to initiate CPR in a timely fashion; and

f) A failure to administer proper CPR.

5. Neither decedent's medical history nor the illness which he suffered on March 1, 1987, would have precluded Mr. Clarken from continuing his employment until retirement, had he been properly cared for on March 1, 1987.

6. Neither decedent nor plaintiff contributed to the injuries and losses herein by any improper action or failure to act.

(Pretrial Order at 5-6 (Plaintiff's Contested Allegations)).

The defendant presently moves for an order determining whether plaintiff has to prove gross negligence, rather than ordinary negligence, in order to recover. The basis of this request is defendant's position that under the Federal Tort Claims Act, courts apply the law of the place where the allegedly negligent act occurred, which is New York. Defendant further argues that under New York law, specifically, the Good Samaritan Law found at Section 3013 of the New York Public Health Law, plaintiff cannot recover against voluntary ambulance personnel unless she proves gross negligence.

The plaintiff concedes that New York law applies to this action. However, plaintiff argues that the defendants are not "voluntary ambulance personnel" because they were under a preexisting duty to render emergency service and are therefore not within New York's Good Samaritan Law.

II. DISCUSSION

A. The Parties' Arguments

Section 3013 of the New York Public Health Law provides, in relevant part:

1. Notwithstanding any inconsistent provision of any general, special or local law, a voluntary ambulance service described in subdivision three of section three thousand one of this article and any member thereof who is an emergency medical technician or an advanced emergency medical technician and who voluntarily and without the expectation of monetary compensation renders medical assistance in an emergency to a person who is unconscious, ill or injured shall not be liable for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such medical assistance in an emergency unless it is established that such injuries were or such death was caused by gross negligence on the part of such emergency medical technician or advanced emergency medical technician.

* * * * * *

4. A certified emergency medical technician or advanced emergency medical technician, whether or not he is acting on behalf of an ambulance service, who voluntarily and without the expectation of monetary compensation renders medical assistance in an emergency to a person who is unconscious, ill or injured shall not be liable for damages alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such medical assistance in an emergency unless it is established that such injuries were or such death was caused by gross negligence on the part of such emergency medical technician or advanced emergency medical technician.

(Public Health Law, § 3013(1)). The relevant definitions are as follows:

3. "Voluntary ambulance service" means an ambulance service (i) operating not for pecuniary profit or financial gain, and (ii) no part of the assets or income of which is distributable to, or enures to the benefit of, its members, directors or officers except to the extent permitted under this article.

* * * * * *

6. "Emergency medical technician" means an individual who meets the minimum requirements established by regulations pursuant to section three thousand two and who is responsible for administration or supervision of initial emergency medical assistance and handling and transportation of sick, disabled or injured persons.

(Public Health Law, § 3001(3), (6)).

The United States argues that these provisions shield the medics from liability except to the extent that plaintiff proves gross, rather than ordinary, negligence. The medics were on duty for the Army, and received Army pay. (Defendant's Br. at 4). The medics were actually hospital orderlies, who manned ambulances whenever use of the ambulance was necessary. (Id. at 1). The U.S. Army did not charge the plaintiff for emergency medical services, does not earn a profit from such services, and does not offer such services to the public in general except on an emergency basis. (Id. at 4). "None of the assets or revenue of Army medical facilities enures to the benefit of any of the U.S. Army's personnel." (Id.)

In addition, the United States argues that the fact that the medics receive ordinary Army salary does not take this ambulance service out of the Good Samaritan Law. (Id. at 7-8). In particular, "they are paid for fulfilling various medical functions within the military medical service, principally those of hospital orderlies, and only incidentally do they provide emergency ambulance service to civilians." (Id. at 8). Finally, the United States argues that the policy underlying the Good Samaritan Law would be served by protecting these defendants from liability for ordinary negligence:

The Army's medical services are provided for the military community at West Point, and are not offered to the general public. Defendant is protected from liability when providing medical services to military personnel. Ferres v. United States, 340 U.S. 135, 146 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950). The military has no duty to care for civilians who become ill while visiting military facilities. See Adamowicz v. Claridge Hotel, 135 A.D.2d 769, 522 N.Y.S.2d 884 (N.Y.App.Div., 2d Dept.1987) (casino guest who suffered heart attack alleged negligence by casino-employed EMT's; held no duty at common law to render aid to a sick guest, therefore casino protected by New Jersey Good Samaritan law); Clark v. State, 195 Misc. 581, 590, 89 N.Y.S.2d 123 132 (N.Y.Ct.Claims 1949) (state has no duty to render aid under New York law); Bunting v. United States, 662 F.Supp. 971 (D.Alaska 1988 1987) aff'd, 884 F.2d 1143 (9th Cir.1998 1989) (Coast Guard, in providing medical aid to civilian airman rescued from sea, is comparable to a private company with helicopter service and private clinic for its employees, and has no duty to rescue the civilian or provide care), aff'd, 884 F.2d 1143 (9th Cir.1989). The purpose of New York's Good Samaritan Law is to encourage volunteers to provide emergency medical services for the public's benefit. If defendant is to be encouraged to open its facilities to civilians defendant should be protected in the same manner as any other community's voluntary service is protected.

(Id. at 8-9). Thus, the United States argues that the plaintiff must prove gross negligence, rather than ordinary negligence, in order to recover.

In opposition, the plaintiff argues that the Good Samaritan Law does not protect these medics because the statute does not protect those who have a pre-existing duty to act. (Plaintiff's Br. at 6). Plaintiff argues that "it was in the normal course of the duties of Specialists Stratiff and Smith to render emergency assistance to individuals injured or ill within the jurisdiction of Keller Army Hospital." (Id. at 8).

Plaintiff relies on several cases in support of her position that an EMT with a pre-existing duty to act is not within the Good Samaritan statute. First, plaintiff contends that...