After a three-week trial, a jury in the Bronx recently awarded a brain-damaged woman $172 million on May 28, 2014. The plaintiff, Tiffany Applewhite, suffered severe and life-altering brain injuries in 1998, when she was just a twelve-year old girl, which left her permanently unable to speak, paralyzed, and as her lawyer said, “trapped in her own body.” To this day, Tiffany requires the use of a feeding tube, a wheelchair and wears diapers. Prior to the incident, Tiffany was a straight-A student and was applying to the prestigious Stuyvesant High School in Manhattan.
The injuries stemmed from an incident in 1998 when Tiffany went into anaphylactic shock after a home nurse gave her a steroid injection for a recurring eye condition, known as uveitis. After the injection, Ms. Applewhite had a seizure, followed by cardiac arrest. Her mother immediately called 9-1-1 and the City dispatched two EMTs employed by the New York City Fire Department.
The EMTs arrived at the Bronx apartment in a basic life support ambulance, which was not equipped to properly treat Ms. Applewhite. The EMTs failed to bring oxygen, a defibrillator, or epinephrine, all of which were required to stabilize Ms. Applewhite, and had failed to arrange for backup assistance before their arrival on the scene. One EMT began CPR, while the other called for an advanced life support (ALS) ambulance.
As they waited for an ALS ambulance, Tiffany’s condition deteriorated and her mother pleaded with the EMTs to take Tiffany to Montefiore Hospital, which was only a few minute drive from the apartment. However, the EMTs ignored the mother’s request, and instead conducted CPR, while continuing to wait for the ALS ambulance, which did not arrive until twenty minutes later. Once the ALS ambulance arrived, they administered epinephrine, gave Ms. Applewhite oxygen and transported her to Montefiore Hospital.
The case was originally dismissed by the New State Supreme Court, Bronx County, as the Court found that the Applewhite’s could not prove that the City was liable for the injuries. Under New York law, a municipality, such as the City of New York, will only be liable for personal injuries, if a “special duty” existed when the City was performing its governmental functions. Such “governmental functions” include city services such as garbage collection, police protection, and ambulance services by emergency medical technicians in response to 9-1-1 calls. The Supreme Court found that the City did not owe the Applewhite’s a “special duty” when it responded to their emergency situation.
The Applewhite’s appealed the decision, and the Appellate Division, First Department, reversed the order of the Supreme Court, and found that it should be for a jury to determine whether such a “special duty” existed. The Appellate Division decision was upheld by the Court of Appeals, the highest state court in New York, in a June 2013 decision. The Court of Appeals stated that a “special duty” may arise where the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally, which required the plaintiff to prove four elements: 1) an assumption by the municipality, through its 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.
The Court of Appeals held that a jury could find that the four elements were met since the mother asked the EMTs to take Tiffany to Montefiore Hospital once she realized that the EMTs’ treatment would be limited to CPR. Yet, the EMTs merely continued CPR and stated that they were awaiting the arrival of the ALS ambulance. The Court found that a jury should be asked whether the EMTs assumed an affirmative duty in deciding to have ALS paramedics undertake more sophisticated medical treatment rather than transport the child to the hospital sooner and whether Ms. Applewhite’s mother justifiably relied on the EMTs alleged assurances rather than seek an alternative method to transport Tiffany to a nearby hospital.
After the Court of Appeals decision, the case was reinstated and proceeded to trial. Prior to the trial, the City continued to dispute wrong-doing and refused to settle. However, the evidence adduced at trial, including testimony that the two City EMTs were disciplined by the City for their actions in relation to this case, caused the City to offer a modest settlement amount which was rejected by the plaintiff. After a two-day jury deliberation, the jury returned a verdict of $172 million.
The City plans on appealing this verdict. According to a Fay Leoussis, Chief of the Tort Division in the City Law Department, while the City acknowledges, “this is a tragic case,” the City believes “the jury’s verdict is not consistent with the law.”
The verdict came only one week after New York City Mayor Bill De Blasio announced a plan to overhaul the City’s ordered a review of the City’s emergency response system.
If you have sustained a brain injury as a result of the negligence of another, please contact us.