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THE COMPLAINT ALLEGED DECEDENT, WHO WAS SUFFERING SHORTNESS OF BREATH, SHOULD HAVE BEEN PROVIDED AN ADVANCE LIFE SUPPORT AMBULANCE; THE COMPLAINT SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the complaint alleging decedent, who was suffering shortness of breath, should have been provided an advance life support (ALS) ambulance sounded in medical malpractice, not negligence. Therefore the 2 1/2 year statute of limitations applied and the action was time-barred:

… [T]he allegations in the complaint sound in medical malpractice rather than ordinary negligence. Plaintiffs seek to hold defendant liable for its failure to provide decedent with an advance life support (ALS) ambulance after being advised that decedent was suffering from shortness of breath. The type of ambulance provided by defendant “bears a substantial relationship to the rendition of medical treatment,” and thus plaintiffs’ claims must be viewed within a medical malpractice framework … . The dispatcher would need to understand the significance of “shortness of breath,” have specialized knowledge of the equipment or devices that could treat or care for the possible conditions arising from this symptom and be familiar with accepted practice in providing an ALS ambulance … . Trofimova v Seniorcare Emergency Med. Servs., Inc., 2023 NY Slip Op 05997, First Dept 11-21-23

Practice Point: Where the complaint alleges the need for and failure to provide an ambulance with advance life support, it sounds in medical malpractice, not negligence.

 

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