Hammond v Brunswick Hosp. Ctr., Inc.

[*1] Hammond v Brunswick Hosp. Ctr., Inc. 2013 NY Slip Op 50096(U) Decided on January 9, 2013 Supreme Court, Suffolk County Pitts, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 9, 2013
Supreme Court, Suffolk County

The Estate of James Hammond, by its Administratrix, DEBRA A. HAMMOND, and DEBRA A. HAMMOND, individually, Plaintiff,

against

Brunswick Hospital Center, Inc., NORTH LINDENHURST FIRE DEPARTMENT/RESCUE SQUAD, "JOHN" ETHERSON, "S" BOSAK, "JOHN" BARANOWSKI and "S" LUTGENS (first names being unknown and fictitious), Defendants.



04-28446



MCANDREW, CONBOY & PRISCO, LLP

Attorney for Plaintiffs

1860 Walt Whitman Road - Suite 800

Melville, New York 11747

LEWIS JOHS AVALLONE AVILES, LLP

Attorney for Defendant Brunswick Hospital Center

425 Broad Hollow Road

Melville, New York 11747

FUREY, FUREY, LEVERAGE, MANZIONE, WILLIAMS & DARLINGTON, P.C.

Attorney for Defendants North Lindenhurst Fire Department, Etherson, Bosak, Baranowski and Lutgens

600 Front Street, P.O. Box 750

Hempstead, New York 11550

Arthur G. Pitts, J.

Upon the following papers numbered 1 to 32read on this motion for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers1-13 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 14-28 ; Replying Affidavits and supporting papers 29-32 ; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that motion (001) by the defendants, North Lindenhurst Fire Department, Inc., Robert Etherson, Susan Bosak, Andrew Baranowski, and Shawn Lutgens, pursuant to CPLR 3212 for summary judgment dismissing the complaint is denied.

In this medical malpractice action, the plaintiff, Debra A. Hammond, seeks damages personally and derivatively premised upon the negligence of the defendants, for the wrongful death, conscious pain and suffering, and loss of enjoyment of the life of the decedent, James Hammond. On December 15, 2002, at approximately 10:27 p.m., the defendants responded to a "911" call wherein the plaintiff requested emergency medical assistance on behalf of her husband. The plaintiff alleges that the defendants incompetently, inappropriately, and negligently rendered care and treatment to the decedent, failed to have necessary and proper equipment to assist the decedent, and otherwise departed from and failed to use skill and care in monitoring and treating the decedent, and in failing

to directly transport the decedent to Winthrop University Hospital instead of Brunswick Hospital Center. The plaintiff alleges that the decedent was caused to endure pain and suffering and die on December 16, 2002 at approximately 3:20 a.m. as a result of the defendants' delay in the decedent obtaining appropriate and timely treatment.

The pre-hospital care report dated December 15, 2002 describes the plaintiff's decedent as unconscious, unresponsive, lying at the bottom the stairs, bleeding from the back of his head. His pupils were noted to be dilated and non-reactive, with the right pupil larger than the left. He was breathing but snoring and was suctioned for frothy saliva. He was administered oxygen, and his pulse oximetry was 97% on oxygen. During transport, it was noted that the decedent began bleeding from his left ear. The report indicated that the family advised the decedent had been out drinking. The report further indicated that Baranowski was the ambulance driver, Etherson was in charge, and Bosak and Lutgens were present.

Debra Hammond testified to the extent that on the night of December 15, 2002, she had last seen the decedent at about 6:30 p.m. when he left to attend a holiday party. At about 10:15 p.m., she heard a bang, and she and her daughter found the decedent lying at the bottom of the twelve basement steps. The floor onto which he fell was cement covered by linoleum tiles. Her daughter called 911, and she stayed with the decedent who was lying face up. She observed a small amount of blood on the back of his head. His eyes were closed, and he was breathing, but he did not speak. The police and North Lindenhurst Fire Department responded. She asked the EMTs to take her husband to Good Samaritan Hospital, but they refused and told her they were going to Brunswick Hospital because it was the closest. They remained at her home for about ten to fifteen minutes prior to transport. Plaintiff Hammond continued that after the decedent arrived at Brunswick Hospital he [*2]was transported by Catholic Charities ambulance to Winthrop Hospital later that night. Although she left Brunswick Hospital and arrived at Winthrop Hospital at about 1:00 a.m., her husband did not arrive at Winthrop Hospital until about 3:00 a.m.

Andrew Baranowski avers that he was a volunteer member of the North Lindenhurst Fire Department on December 15, 2002, was not an emergency medical technician, and drove the North Lindenhurst Fire Department ambulance on December 15, 2002 to 917 North Erie Avenue, Lindenhurst, and from there to Brunswick Hospital. He further avers that he did not assess James Hammond; did not render any care and/or treatment to him; was not involved in any decision making concerning the care and treatment rendered; and did not determine to which hospital the decedent was to be transported.

Shawn Lutgens testified to the extent that he has been a volunteer for North Lindenhurst Fire Department for 9 ½ years since September 1, 2002. He received his fire training at the fire academy in Yaphank, but received no first aid training, and received no additional training from North Lindenhurst Fire Department. After he finished his probationary training, he received CPR training, then became part of the ambulance crew. In December 2002, he was still on probation. On December 15, 2002, he, Andrew Baranowski, Sue Bosak, and Bob Etherson were on the ambulance crew and responded to the 911 call to the decedent's home. Upon arrival, he remained outside until instructed to bring in a reeves (stretcher) to carry the decedent up the steps, and assisted in carrying the decedent up the steps from the basement floor. The decedent was then placed on a stretcher in the back of the ambulance.

Susan Bosak testified that she has been a registered nurse since 1998 and is a certified emergency medical technician (EMT) since 2001. As an EMT, she was required to follow Suffolk County Life Support Policies and Procedures in responding to the call on December 15, 2002. She was not an advanced life support provider (ALS). She learned that Mr. Hammond died and was surprised as she did not think his condition was as serious as it was

until they arrived at Brunswick. She further testified that a patient with a Glasgow Coma Scale of less than eight would be transported to a trauma center; however, other factors are considered as well, such as the mechanism of injury and nature of illness. She stated that although the decedent had a Glasgow Coma score of three, on a scale of three to fifteen, in that he had no spontaneous eye movement, no verbal or motor response, and was unconscious, they transported the decedent to Brunswick Hospital. The first responder, Captain Ralph Oswald, an advanced life support provider (ALS), arrived at the decedent's home shortly after they did, and was responsible for making the decision to transport the decedent to Brunswick Hospital. She followed his order, though she thought the decedent should be transported to a trauma center instead, and took the decedent to Brunswick to reach medical care the quickest. She stated that Mr. Hammond could have been transported to either Good Samaritan Hospital which was a trauma center, or to Brunswick which was not a trauma center. She thought Oswald passed a comment that the decedent was drunk; however, she stated, that it was not important to her as the decedent would not be treated any [*3]differently if he were, and the hospital was aware of his condition. She believed Oswald minimized the decedent's complaints because he thought the decedent had been drinking. She testified that Oswald made the decision not to ride in the ambulance as an ALS with the decedent.

Robert Etherson testified to the fact that in 2002 he was an EMT in basic life support (BLS) and had been a volunteer for the North Lindenhurst Fire Department since March 2001. He and Sue Bosak assessed the decedent upon arrival to the decedent's home, and a few minutes later, Ralph Oswald, a Captain with the highest position one could hold as a volunteer rescuer, responded to the scene. Etherson also testified that they asked Oswald if they could take the decedent to Good Samaritan Hospital. Etherson stated that if it had been up to him (Etherson), he would have taken the decedent to Good Samaritan Hospital. While Etherson was still in the basement prior to transporting the decedent, he heard discussion wherein Oswald stated that he thought the decedent was drunk and was unconscious from the drinking. Oswald also stated that the decedent was "only drunk." Etherson also indicated that the decedent had the lowest Glasgow score, three, and ordinarily that score would indicate that the person would be taken to Good Samaritan. However, he could not overrule Oswald's decision to take the decedent to Brunswick Hospital.

Ralph Oswald testified to the extent that he attended a basic EMT/paramedic course in 1975 or 1976, basic CPR in 1977, and EMT critical care to become an advanced medical technician in 1977. He joined the North Lindenhurst Fire Department as a volunteer member in 1972, and remained active until his resignation in 2008. On December 15, 2002, the North Lindenhurst Fire Department followed the Suffolk County protocol, which he stated is based on the New York State protocol. He believed that in 2002, when a patient demonstrated signs or symptoms of a head, neck, or spinal injury, consideration should be given to taking a patient to a level 1 trauma center. He did not believe that a Glasgow Coma score, by itself, would indicate whether or not a patient had a trauma. He couldn't remember if there were any guidelines outlining if a patient had a head injury or Glasgow, if they should be considered a trauma patient, but stated that if there were signs and symptoms that a patient presented with indications of a head, neck, or neurological injury, that the patient is considered a trauma patient and would be taken to the closest facility for care. Oswald continued that he could not recall if in 2002, if a patient has a head injury and a Glasgow score, if the patient should be taken to a trauma center, and in 2002, Brunswick Hospital was not a trauma center.

He continued that Robert Etherson, as the EMT, accepted this call and the responsibility for the transport of the patient. However, he continued, the EMTs always yield to the senior person with the most experience, and he (Oswald), as Captain, was the senior person with more experience than Etherson, Lutgens, and Bosak. He arrived shortly after the ambulance did, and after the crew did their assessment, and upon his arrival, the crew yielded to

him. He stated, he did not take charge at the scene, but recommended that the decedent be taken to Brunswick Hospital prior to transport, as it was the closest facility. Oswald further testified that if Etherson wanted to overrule his decision, that he could have taken the decedent to a trauma center. [*4]Oswald stated he would not disagree if Etherson stated that it was Oswald's decision to transport the decedent to Brunswick, and if Etherson testified that the decedent should have been transported to Good Samaritan, that he should have taken him there. Oswald testified that although the protocol is to get the patient to the right facility where they need to be treated, that it is not clear cut despite the criteria that a patient with a head trauma and a Glasgow of less than eight should be taken immediately to a trauma center.

Oswald continued that he wanted a rapid transport, although he believed that there was no neurosurgeon available at Brunswick. He then testified that a patient who might have a brain injury and require neurosurgical intervention needs to be transported to a trauma center. He thought that due to the alcohol ingestion, that the decedent might vomit and should be transported to the closest facility for further evaluation and care if necessary. Despite the airway concern, he did not feel it was necessary for him to ride in the ambulance, although he was the ALS provider who could provide care if the need arose. He denied ever saying that the decedent was drunk, but later stated that he may have said that the decedent has been drinking. Oswald continued that he was aware that Brunswick would not be able to treat the decedent neurologically after his discussion with Bosak. He agreed that if the decedent had fallen, struck his head, was bleeding from the back of his head, and had a Glasgow Coma score of 3 or under, that he should have been transported to a trauma center. He also stated that if the decedent was unresponsive, bleeding from the back of his head, pupils dilated and unresponsive, was a strong indication that required the patient go to a level 1 trauma center. He did not know the amount of alcohol the decedent had ingested, but stated that he had the smell of alcohol. He then stated that the Glasgow determination of 3 by Bosak and Etherson did not represent what he saw, as dead people get a 3. He then stated that with a score of 3, it was indicative that a person could lose his airway, or have seizures, and require resuscitation. He also felt that the symptoms of a head or neck injury could be missed by possible alcohol ingestion.

Here, the defendants seek summary judgment dismissing the complaint on the basis that there was no special relationship between them and the decedent in that the decedent was unconscious upon their arrival to his home. They assert that there is no basis for determining that a special relationship existed as the decedent was unaware that any assistance was being offered to aid him, and that the emergency medical personnel did not place the decedent in a worse position.

There exists a narrow class of cases in which the court has recognized that an exception to the general rule that a municipality may not be held liable for injuries resulting from the failure to provide police protection, and have upheld tort claims based upon a "special relationship" between the municipality and the claimant. The elements of this "special relationship" are (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 (Cuffy v City of New York, 69 NY2d 255, 513 NYS2d 372 [1987]). These government functions include providing fire, police and ambulance services (Larato v City of New York, 8 NY3d 79, 828 NYS2d 280 [2006]). Here, it is determined that there was a special relationship established between the municipality and [*5]the claimant.

In addressing the first prong of the test, as set forth above, it is determined that there was an assumption by the municipality, through promises and actions, of an affirmative duty to act on behalf of the decedent who was

injured. There was also an assumption relative to decedent's wife who relied upon the defendants to act according to their duties and responsibilities, to follow protocol, and to take the decedent to a trauma center. However, non-party Captain Oswald refused to do so, being of the opinion that the decedent was drunk and might vomit on the way to the hospital, despite the ability of the BLS providers to suction the decedent in the ambulance, as they did. The adduced testimonies and evidentiary submissions establish that the defendants arrived at the scene in response to the emergency call, evaluated and assessed the decedent's condition, ascertained he had fallen and had a head injury, provided back and cervical spine support, and undertook to transport the decedent to a hospital where he could obtain medical care and treatment. Although the defendants argue that the decedent was unconscious and had no indication that he has being assisted by the EMTs, the evidentiary submissions demonstrate that the decedent pulled back when Oswald pressed on his sternum, and that his legs moved when he was being placed on the back board. There was additional testimony that the decedent responded to his wife by squeezing her hand twice. Thus, the defendants have not demonstrated that there was no affirmative duty to act on behalf of the injured decedent.

It is determined that there was knowledge on the part of the municipality's agents that inaction could lead to harm. This was demonstrated by the defendants' determination that the decedent had a head injury due to a fall on the basement steps onto a cement floor, that he was not responsive verbally, that his pupils were dilated, and that he had a Glasgow Score of three, indicating the severity of his condition. Thus, when EMTs Etherson and Bosak determined that the decedent should be transported to a trauma center, and Oswald instructed them to take him to Brunswick Hospital instead, despite requests by the decedent's wife to take the decedent to Good Samaritan, it was known that failure to transport the decedent to the trauma hospital could delay treatment and cause harm. Despite the Glascow Score of three, as determined by the BLS providers, and Oswald's concerns that the decedent could vomit on the way to the hospital, Oswald, as an ALS, did not accompany the decedent in the ambulance. Oswald testified that he knew Brunswick Hospital was not a trauma hospital and might not be able to care for and treat the decedent. Oswald, in making that determination in part, testified based upon his experience with his son, he assumed that not transporting the decedent to a trauma center would not make a difference in the decedent's outcome. Thus, Oswald deviated from protocol, knowing that such deviation could lead to harm to the decedent, and he abandoned the decedent by not escorting him to a trauma hospital and instead instructing the BLS crew to take the decedent to Brunswick Hospital which he believed could not provide the level of care needed.

It is determined that there was direct contact between the municipality's agents and the injured party when the defendants assisted with evaluating, assessing and treating the decedent, and [*6]transporting him for additional care and treatment. Although the defendants argue that they had no direct contact with the decedent because the decedent was unconscious, this argument is belied by Oswald's testimony that the decedent pulled back when he pressed on his sternum, and that his legs moved when he was being placed on the backboard. There was additional testimony that the decedent responded to his wife by squeezing her hand twice. Additionally, in Larato v City of New York, 25 AD3d 184, 808 NYS2d 145 [1st Dept 2005], the court held that the "direct contact" requirement of the four-prong test applied in cases where a municipality is sued for negligent failure in the performance of services, may actually be satisfied where there is a close relationship between the interest of the caller and the person in need. Here, that direct contact requirement is determined to have been satisfied by the relationship of the decedent and the plaintiff, namely that they were husband and wife, thus demonstrating a close relationship between the caller and the person in need.

In addressing the fourth prong, it is determined that there was justifiable reliance on the municipality's affirmative undertaking and its obligation to follow the New York State BLS protocols. With a Glasgow Coma score of three, the defendants were obligated to take the decedent to a trauma facility as his score was under

fourteen. The 1998 New York State Department of Health, Bureau of Emergency Medical Services Policy Statement, submitted by the plaintiff, provides that it is the express policy of the Department that a patient, in need of emergency medical care, be taken to the nearest appropriate health care facility capable of treatment the illness, disability or injury of the patient. A patient's choice of hospital or other facility should be complied with unless contraindicated by state, regional or system/service protocol or the assessment by a certified EMS provider shows that complying with the patient's request would be injurious or cause further harm to the patient. The EMT should fully document the patient's request and the reasons for the alternate destination decision, including any medical control consultation. Here, the plaintiff's request was not documented and the defendants have not demonstrated that the plaintiff was in cardiac arrest, had an unmanageable airway, or that someone from Medical Control directed that the plaintiff not be taken to a trauma facility. Moreover, there was justifiable reliance by the plaintiff that the defendants' affirmative undertaking would include transporting the decedent to the appropriate facility, yet, the defendants refused to transport the decedent to Good Samaritan Hospital, a trauma center.

Based upon the foregoing, it is determined that a special relationship existed as the elements of the four prong test have been demonstrated, thus exposing the defendants to potential liability in this action. In addition, there are factual issues as to the reasonableness of the defendants' actions which preclude summary judgment as to liability.

The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852, 678 NYS2d 503 [2d Dept 1998], app denied 92 NY2d 818, 685 NYS2d 420 [1999]). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor [*7]in producing the alleged injury (see Derdiarian v Felix Contracting Corp., 51 NY2d 308, 434 NYS2d 166 [1980]; Prete v Rafla-Demetrious, 224 AD2d 674, 638 NYS2d 700 [2d Dept 1996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury (see Fiore v Galang, 64 NY2d 999, 489 NYS2d 47 [1985]; Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 [2d Dept], app denied 92 NY2d 814, 681 NYS2d 475 [1998]; Bloom v City of New York, 202 AD2d 465, 609 NYS2d 45 [2d Dept 1994]).

To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendant's acts or omissions were a competent-producing cause of the injuries of the plaintiff (see Lifshitz v Beth Israel Med. Ctr-Kings Highway Div., 7 AD3d 759, 776 NYS2d 907 [2d Dept 2004]; Domaradzki v Glen Cove OB/GYN Assocs., 242 AD2d 282, 660 NYS2d 739 [2d Dept 1997]).

The defendants' expert, Mark Henry, M.D. affirmed that he is licensed to practice medicine in New York and is board certified in emergency medicine. He set forth his work experience, and familiarity with issues involved in this action, as well as the records and materials which he reviewed in rendering his opinion. He set forth his opinion within a reasonable degree of medical certainty that the volunteer emergency medical technicians of the North Lindenhurst Fire Department did not demonstrate reckless disregard for the decedent's safety by not taking the decedent to a trauma receiving facility. He stated that based upon their assessment and judgment, the personnel were concerned with the possibility of losing the patient's airway during the transport of the decedent, whom they believed was intoxicated, and therefore brought him to the nearest emergency room, Brunswick Hospital. They

suctioned the decedent, assessed his respiratory and heart rate, his level of consciousness, examined his pupils, and skin, and unsuccessfully attempted to obtain a blood pressure. Due to their findings, there was no need to intubate the decedent as he was breathing on his own, and there was no cyanosis or respiratory distress.

Dr. Henry stated that starting an intravenous would have only delayed transfer, and upon arrival at Brunswick Hospital, the decedent's blood pressure was 178/84, and Brunswick Hospital started the intravenous. He continued that Suffolk County ALS protocols do not provide standing orders for any medication to be given. Dr. Henry stated that the total transport time to the hospital was four minutes, and during that time, the EMT's noticed the right pupil had become larger than the left. Bleeding did not begin from the decedent's left ear until arrival at the hospital. Dr. Henry stated that the decision not to deviate to a trauma receiving facility, once these signs were noted, was appropriate. He continued that had the technicians contacted Medical Control, they would have been directed to get immediate help from the emergency staff at Brunswick Hospital. [*8]

The defendants' expert, Dr. Henry, did not address the issue of whether or not the decedent should have been taken to Good Samaritan Hospital rather than Brunswick Hospital. Dr. Henry only addresses the issue that upon arrival at Brunswick, the decision not to deviate to a trauma facility was acceptable. Dr. Henry, does not comment on the care and treatment which could have been rendered at Good Samaritan as opposed to Brunswick, and whether or not receiving the care available at a trauma center could have made a difference in the decedent's outcome. Although Dr. Henry refers to the Suffolk County protocols, he does not set forth those protocols upon which he relied in opining that the defendants complied with the same. Dr. Henry does not set forth the standard of care for a patient, whom Oswald stated was "stable," with a head injury, bleeding from the skull, dilated pupils, frothing from the mouth, possible alcohol ingestion, and a Glasgow Coma scale of under eight, and whether or not a trauma center was the appropriate facility to transport the decedent to initially. There are credibility issues and factual issues concerning who made the decision to transport the decedent to Brunswick Hospital, Etherson or Oswald, and whether or not Etherson could have overridden Oswald's "recommendation" to take the decedent to Brunswick Hospital. There are further factual issues concerning why Oswald, as the ALS at the scene, did not accompany the decedent to the hospital in case of a compromised airway, which Oswald stated was a basis for transporting the decedent to Brunswick Hospital. Thus, the defendants have not established prima facie entitlement to summary judgment dismissing the complaint on the issue of liability.

In opposition, the plaintiff has submitted the affirmation of her expert physician, Robert H. Meyer, M.D., a physician licensed to practice medicine in the State of New York and a diplomate of the American Board of emergency medicine since 1996. Dr. Meyer has set forth his education and training, and work experience and has further provided a copy of his resume. He set forth the materials and records which he reviewed, as well as various literature regarding pre-hospital care and treatment and his familiarity with the New York State protocols regarding ALS and BLS and the guidelines for field triage of injured patients, as well as other materials. It is Dr. Meyer's opinion within a reasonable degree of medical certainty that the defendants were reckless, careless, and grossly negligent in the care and treatment of the decedent, James Hammond, and that such negligence decreased the decedent's chances of recovery, survival, and his ability for proper and timely treatment, causing a delay in definitive treatment for several hours. Dr. Meyer also opined that the defendants' negligence was a substantial factor in causing the decedent's death.

Dr. Meyer continued that the North Lindenhurst Fire Department, through its agents, servants, and/or employees, Ralph Oswald, Susan Bosak, and Robert Etherson, have contradicted each other as to the facts and circumstances of the call in response ot James Hammond. He stated that the testimony shows a basic lack of

knowledge of the EMS protocols as well as the proper response to a patient in Mr. Hammond's condition. Dr. Meyer stated that Ralph Oswald, as Captain of the Fire Department and an ALS provider, failed to perform a proper assessment of the decedent; failed to make any entries regarding his evaluation, assessment and findings; failed to ride in the ambulance with the decedent to the hospital; and passed the treatment of Mr. Hammond off to two first year BLS trained EMTs. Dr. [*9]Meyer continued that all the EMTs agreed that Mr. Hammond should have been transported to a trauma center if he had respiration of 20, a pulse of 52, and GCS of three. The testimony, he stated, demonstrates that there was a minimization of the complaints based upon a history of alcohol intake, demonstrating a clear lack of care for the patient and a reckless disregard for the patient's well-being. Dr. Meyer opined that there was a reckless disregard for the well-being of the decedent by sending him to a non-trauma facility, when he was bleeding from the head, had a GCS of three and a possible fractured skull. He opined that when faced with a choice that the decedent could be drunk or have a head injury with a hematoma, the emergency responders must err on the side of caution, and transport the patient to a trauma center.

Dr. Meyer stated that the testimony that Oswald did not touch or lay his hands on Mr. Hammond, and did not assess him, yet instructed that he be transported to a non-trauma facility incapable of treating a closed head trauma, demonstrated a reckless disregard for the safety and well-being of the decedent. Dr. Meyer further stated that Ms. Bosak, as a nurse by profession and an EMT, abdicated her responsibility by allowing Oswald, who did not make a full assessment of the decedent, to make a decision to transport the patient to a non-trauma facility. Dr. Meyer continued that the New York State BLS protocols clearly indicate that Mr. Hammond, who was suffering with a major trauma with a GCS of three, needed to be transported to a trauma center, and that his condition did not fall within the exceptions listed in the protocols requiring him to be taken to the nearest facility. He stated that the failure to follow such protocols and not to transport the decedent to a trauma center departed from the rules and constituted gross negligence.

Dr. Meyer continued that if a Glasgow Coma scale is less than 14, the Triage Decision Scheme requires that the patient be taken to a trauma center, which issue was not addressed by defendants' expert, Dr. Henry, who was a member of the expert panel in 2011 to the CDC for guidelines for field triage of injured patients in identifying patients at the greatest risk for severe injury and in the need of treatment at trauma centers. Dr. Meyer continued that the report prepared by that panel outlined that treatment of severely injured trauma patients at trauma centers has a profound impact on the patient's survival. He continued that the National Study on the Costs and Outcomes of Trauma identified a twenty five percent reduction in mortality for severely injured patients who received care at a level one trauma center rather than at a non-trauma center. Dr. Meyer also opined that Dr. Henry failed to mention in his affirmation the violation of the New York State protocols and the Field Triage Decision Scheme. Dr. Meyer continued that the decision to transport to a trauma facility should have been made at the decedent's home. Mr. Hammond's pupils were dilated and non-reactive, with the right being larger than the left; and the only change which occurred in route to the hospital was bleeding from the left ear as properly noted in the report. That finding, he stated, is confirmatory of a skull fracture and brain injury warranting the need for neurosurgical treatment.

The plaintiff has also submitted the affirmation of A. Robert Tantleff, M.D., a physician licensed to practice medicine in New York State and board certified in radiology, diagnostic radiology, and radiographic imaging. He set forth his education, training and work experience, and the materials and records which he reviewed. He stated that the records show that a CT of the brain [*10]was done on December 15, 2002 at 11:09 p.m. at Brunswick Hospital, confirming a large acute right subdural hematoma which needed immediate definitive treatment. He continued that Mr. Hammond remained at Brunswick Hospital for three and a half hours after the CT scan of the brain without receiving definitive treatment or relief of the pressure on his brain, during which time the bleed continued and Mr.

Hammond's condition grew progressively worse. When Mr. Hammond arrived at Winthrop University Hospital, the CT scan of the brain taken there demonstrated hemorrhages in the pons, cerebellum, and brain stem which were not shown in the Brunswick Hospital CT scan, and were secondary hemorrhages related to the prolonged pressure on the decedent's brain. As a result of the brain injury, Mr. Hammond died. His chances of survival were significantly decreased by the failure to render prompt and definitive treatment of the subdural hematoma and to transport to a trauma center. The failure to do so was a deviation from good and accepted practice and substantial factors in the death of James Hammond.

Plaintiff has also submitted the affidavit of her expert witness, Jonathan Best, owner of Disaster by Design, a company involved in the preparation and response to emergency situations. He has served as an adjunct faculty member for the Academy for Counter Terrorist Education at the national Center for Bio Readiness, and at the Yale Center for Emergency Preparedness and Disaster Response. He set forth that he was the Executive Director of Westchester EMS/Stellaris Health System, Sr. Vice President of the Regional Medical Transport in New York City, Director of the Office of Emergency Services for the City of Bridgeport, as well as other agencies. He is currently an EMS Field Coordinator for the Connecticut Department of Public Health in Emergency Preparedness. He stated that he is fully familiar with the national standards for emergency medical service care and treatment of patients in both basic and advanced life support, as well as the New York State Emergency Medical Technician's Program. He set forth the materials and records which he reviewed and opined that the defendant, North Lindenhurst Fire Department, through its agents and employees, were grossly negligent in responding to the call involving Mr. Hammond, in that they exercised a complete disregard for the safety of the decedent and failed to exercise even the slightest care in the assessment and transport of the decedent, resulting in a delay in definitive treatment, which decreased his chances of survival, and was a substantial factor in his death.

Best continued that the Glasgow Coma score of three determined at the Hammond household, is a clinical scale for assessing coma, in use since 1974. A score of three indicates a deep coma out of a score of 15 for normal consciousness. In 1986, the American College of Surgeons developed a field Triage Decision Scheme for EMS systems across the United States that upon a score of less than fourteen, requires that the patient be immediately transported to a trauma center, and that criteria continues today. In this case, it would have required that the decedent be transported to Good Samaritan Hospital rather than Brunswick Hospital, which does not have the capabilities to treat a head injury. Best continued that there was a lack of command, a failure to properly transport, an under-triaging of the decedent, resulting in the decedent's death. [*11]

Best indicted that the three exceptions to the rule that a patient with a head trauma a Glasgow score of three be transported to a trauma center are if the decedent is in cardiac arrest, if he has an unmanageable airway, or if an online medical control physician directs that he be taken to Brunswick, and that none of those conditions existed. Medical control was never contacted, the decedent's airway was not unmanageable, and he was not in cardiac arrest and remained stable even when delivered at Brunswick. Oswald, the only ALS at the scene capable of intubating the decedent, did not ride in the ambulance if he felt that the decedent might have an airway problem, which was the basis for transporting the decedent to Brunswick Hospital. Best further stated that the defendants minimized the decedent's injuries as they felt he had been drinking. It is Best's opinion that the defendants were grossly negligent in violating the applicable protocols and guidelines in not taking the decedent to a trauma center, and that they delayed in the transport of the decedent to a trauma center, thus delaying treatment at an appropriate facility, substantial factors in the decedent's ultimate death.

Based upon the foregoing, there are questions of fact with respect to the reasonableness of the defendants' actions, and such questions are properly left to the fact finder (Matroianni as Public Administrator of the Goods, Chattels and Credits of Adell P. Swiggett, deceased v County of Suffolk, 91 NY2d 198 [1997]). Here, questions of fact exist as to the reasonableness of the decision not to transport the decedent to the nearby available trauma center. There are further factual issues relating to the inconsistent testimonies of the defendants, whether the defendants appropriately followed protocol, and whether their actions, and alleged failures to act, rose to the level of gross negligence, thus precluding summary judgment.

In view of the foregoing, the motion by defendants for summary judgment dismissing the complaint is denied.

Dated: January 9, 2013__________________________________________

J.S.C.