Kathleen Gumkowski, as Administrator of the Estate of Gregory Gumkowski, deceased, and Kathleen Gumkowski, individually v. Thomas Schwaab, M.D., et al.
Attorneys and Parties
Brief Summary
Medical malpractice involving post-operative care, emergency medical services (EMS) response, hospital critical care management, and governmental function immunity for first responders.
Supreme Court, Erie County denied the Town defendants' and the Catholic Health defendants' motions for summary judgment, and denied in part the Roswell Park defendants' summary judgment motion.
The denial of summary judgment to the Town defendants was reversed and the claims against them dismissed; the denial to the Catholic Health defendants was reversed in part to dismiss the failure-to-transfer theory against Dr. Diringer; the remainder of the order was otherwise affirmed.
The Town defendants established governmental function immunity because the paramedics' assessment and transport decision were discretionary acts; plaintiff's expert failed to rebut the Catholic Health defendants on the discrete transfer-to-tertiary-care theory; and the Roswell Park defendants' expert failed to address each alleged departure in the bills of particulars, defeating their prima facie showing.
Background
Decedent underwent a retroperitoneal lymph node dissection at Roswell Park Cancer Institute on January 4, 2016, performed by Dr. Thomas Schwaab. During his admission until discharge on January 11, he reported fatigue, uncomfortable breathing, and low back discomfort. After discharge, he made several calls to Roswell Park, including to nurse Christine Pieri on January 13, reporting shallow breathing and lightheadedness. Later that day, he called 911 for shortness of breath; Town of Tonawanda paramedics Kristian Rutenkroger and David Rice assessed him, concluded symptoms were anxiety-related in the absence of clinical respiratory distress, and the decedent signed a refusal of transport. On January 15, he again called 911, was transported to Kenmore Mercy Hospital, admitted to the ICU under Dr. Erik Diringer at 3:15 p.m., suffered cardiac arrest around 5 p.m. during preparation for central line placement for surgery, and was pronounced dead at 5:31 p.m. of hemorrhagic shock.
Lower Court Decision
The Supreme Court, Erie County denied the Town defendants' summary judgment motion; denied the Catholic Health defendants' motion as to claims against Dr. Diringer; and denied in part the Roswell Park defendants' motion for summary judgment.
Appellate Division Reversal
The Appellate Division modified the order by granting the Town defendants' motion in full, dismissing the complaint and all cross-claims against them, and by granting in part the Catholic Health defendants' motion to dismiss the claim that Dr. Erik Diringer negligently failed to transfer the decedent to a tertiary care facility. The court otherwise affirmed, including the denial of summary judgment to the Roswell Park defendants and the remaining claims against Dr. Diringer.
Legal Significance
The decision reinforces that EMS responses by municipal first responders are classic governmental functions and discretionary medical judgments within those responses are protected by governmental function immunity, obviating any special duty analysis when established (Applewhite v Accuhealth; Morales v City of New York; Tango v Tulevech; McLean v City of New York). It also underscores two summary judgment principles in medical malpractice cases: (1) a defendant's expert must address each specific alleged departure in the bills of particulars to meet the prima facie burden; and (2) where a movant meets its burden on a discrete theory, the plaintiff must specifically rebut that theory or face partial summary judgment.
Municipal paramedics’ discretionary patient assessment and transport decisions are immune from liability as governmental functions, while hospitals and physicians may obtain partial summary judgment on unopposed negligence theories; med-mal defendants must have expert affidavits that address every alleged departure, or their motions will fail regardless of the plaintiff’s opposition.