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March 17, 1997


Appeal from the Circuit Court of Lake County. No. 94--L--1093. Honorable Stephen E. Walter, Judge, Presiding.

Released for Publication April 18, 1997.

The Honorable Justice McLAREN delivered the opinion of the court. Thomas and Rathje, JJ., concur.

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The plaintiff, Linda Brock, appeals the dismissal of counts III, IV, and VIII of her second amended complaint against the defendants. The counts allege that the defendants, emergency medical technicians Michael Young, Rodney Feltner, Albert Schlick III, and Robert Rucker (defendants-EMTs), caused the death of the plaintiff's husband, Randall Brock, through negligent and wilful and wanton conduct, when they failed to treat him for heat stroke. The plaintiff also alleged that the defendant, Wauconda fire department (defendant-WFD), was liable based on the doctrine of respondeat superior. The trial court dismissed, finding that the defendants-EMTs and defendant-WFD (collectively defendants) were immune from liability. We affirm.

The following facts are taken from the pleadings and the reports and documents attached to the pleadings. On August 11, 1993, the plaintiff's decedent, Randall Brock, became unconscious as a result of a heat-related illness, while working at a construction site on a hot and humid day. In response to a 9-1-1 emergency call placed at 3:19 p.m., the defendant-WFD dispatched emergency medical technicians (EMTs or paramedics), defendants Michael Young and Rodney Feltner, to the construction site. The defendant-WFD is part of the Lake County emergency medical system. Young and Feltner arrived at the site in an ambulance at 3:23 p.m. Upon arriving, Young and Feltner noted that Randall was lying unconscious and partially unclothed on the floor of the house under construction. The team checked Randall's respiration and noted that he was using his muscles to breathe. At that time they called for additional help. After requesting help, Young and Feltner began taking Randall's vital signs, which included checking Randall's blood-pressure (10 palpitations), his respiration rate (32), his pulse (180), his pupils (mid-line and fixed), and his skin (hot and dry). They attempted to take Randall's temperature, but the thermometer displayed an "error" message. In addition, Young and Feltner checked Randall's lungs, noted that they were clear, and prepared a cardiac hookup. They noted that the electrocardiogram (EKG) recorded a heart rate of 180. Young and Feltner then administered oxygen and started an intravenous (IV) line in Randall's right arm.

At 3:34 p.m., the second team of paramedics arrived, defendants Robert Rucker and Albert Schlick III. At 3:38 p.m., the defendants-EMTs moved Randall into the air-conditioned ambulance and began to transport him to Good Shepherd Hospital. While inside the ambulance, Randall began to vomit what appeared to be saliva. The defendants-EMTs suctioned Randall's airway to remove the vomit, listened to Randall's lungs, started a second IV at a "slow rate," and did a "Chem Strip" which read 110. At 3:40 p.m. the defendants-EMTs contacted Condell Memorial Hospital, one of the resource hospitals for the South Lake County emergency medical system. Condell Hospital gave no orders but requested that the defendants-EMTs attempt to intubate (place a tube down Randall's throat). The defendants-EMTs attempted to intubate twice but were unable because Randall's tongue obstructed the tube. On route to Good Shepherd Hospital, the defendants-EMTs also checked Randall's oxygen level which was at 85% and then administered oxygen which increased the level to 92%. They did another "Chem Strip" which read 110, took vital signs (blood pressure 120, respiration 32, pulse over 200, pupils mid-line and fixed, skin hot and dry), checked Randall's lungs, checked the EKG, and attempted to take his temperature (the thermometer "malfunctioned" again). In addition, the defendants-EMTs were unable to elicit a response to painful stimuli from Randall. At 3:47 p.m. the ambulance arrived at Good Shepherd Hospital. On the way into the emergency room, Randall vomited again. The defendants-EMTs then handed Randall over to the emergency room personnel. On August 23, 1993, Randall died from heat-related injuries.

The defendants-EMTs are a part of an emergency medical system established by the legislature through the Emergency Medical Services (EMS) Systems Act (EMS Act) (210 ILCS 50/1 et seq. (West 1992)). The purpose of the EMS Act is to provide the State with a system for emergency medical services. 210 ILCS 50/2 (West 1992). The purpose of an emergency medical system is to provide prehospital care (210 ILCS 50/2 (West 1992)), that is, "emergency medical services rendered to emergency patients for analytic, resuscitative, stabilizing, or preventative purposes, precedent to and during transportation of such patients to hospitals" (210 ILCS 50/4.16 (West 1992)). Each hospital providing emergency care appoints a project medical director. 210 ILCS 50/4.02, 13 (West 1992). The project medical director is a medical physician who has the ultimate responsibility for patient management. 210 ILCS 50/13, 18 (West 1992). In addition, the EMS Act provides for the licensure of emergency medical technicians. 210 ILCS 50/10 (West 1992). The advanced level EMTs are permitted to perform such functions as cardiac monitoring, electrocardiography, IV therapy, the administration of medications, drugs and solutions, the use of adjunctive medical devices, trauma care, and other procedures authorized by the project medical director. 210 ILCS 50/4.01 (West 1992). In this case, the project medical director authorized certain procedures through written standing orders of procedure (SOPs). The project medical director is authorized to issue SOPs and a protocol to assess the condition of patients which EMTs must follow. See 77 Ill. Adm. Code ยงยง 535.200(c), 535.210(m)(1), (m)(7) (1991).

The written SOPs applicable required the defendants-EMTs to (1) provide a "primary survey and management," which includes checking the patient's airway, breathing, and circulation; (2) provide a secondary survey and continued management," which includes: obtaining vital signs, applying chest electrodes, monitoring cardiac rhythm, establishing an IV line with 250cc D5W or normal saline; (3) perform a 90-second survey, which includes evaluating the head, face, nose, ears, neck, sternum, ribs; monitoring and recording breath sounds and listening for heart sounds; and monitoring and recording sensory and circulatory integrity in all extremities; and (4) transmit patient information to the hospital and prepare for transport.

Counts III through VII of the plaintiff's second amended complaint alleged wilful and wanton conduct and negligence on the part of the defendants-EMTs. Count VIII sought recovery from the defendant-WFD based on the theory of respondeat superior. The defendants filed an amended motion to dismiss the counts directed against these defendants in plaintiff's second amended complaint, arguing, pursuant to section 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(9) (West 1992)), that they are immune from liability and, pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1992)), that the plaintiff failed to plead wilful and wanton conduct. The trial court granted the defendants' motion, finding immunity based on the following statutes: (1) section 2--201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2--201 (West 1992)); (2) section 1 of the Law Enforcement Emergency Care Act (Emergency Care Act) (745 ILCS 20/1 (West 1992)); and (3) section 17(a) of the EMS Act (210 ILCS 50/17(a) (West 1992)). The plaintiff appeals the dismissal of counts III (wilful and wanton conduct against defendants-EMTs), IV (negligence against defendants-EMTs), and VIII (respondeat superior against defendant-WFD).

The standards guiding our review of the trial court's decision to grant the defendants' sections 2--615 and 2--619 motions (735 ILCS 5/2--615, 2--619 (West 1992)) are clear. Section 2--615 of the Code provides for dismissal based on "defects in [the] pleadings" in that the complaint is "substantially insufficient in law." 735 ILCS 5/2--615 (West 1992). On review of a section 2--615 dismissal, we must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, sufficiently sets forth a cause of action on which relief may be granted. DiBenedetto v. Flora Township, 153 Ill. 2d 66, 69-70, 178 Ill. Dec. 777, 605 N.E.2d 571 (1992); T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083, 199 Ill. Dec. 467, 634 N.E.2d 306 (1994).

Section 2--619(a)(9) of the Code provides for dismissal if "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2--619(a)(9) (West 1992). Thus, the moving party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter which avoids or defeats the claim. T&S Signs, Inc., 261 Ill. App. 3d at 1083.

For purposes of sections 2--615 and 2--619 motions, all well-pleaded facts in the complaint are deemed admitted and only the legal sufficiency of the complaint is at issue. Sisk v. Williamson County, 167 Ill. 2d 343, 346, 212 Ill. Dec. 558, 657 N.E.2d 903 (1995); Kubian v. Alexian Brothers Medical Center, 272 Ill. App. 3d 246, 250, 209 Ill. Dec. 303, 651 N.E.2d 231 (1995). However, exhibits attached to the complaint become part of the complaint and will also be considered. Abbott v. Amoco Oil Co., 249 Ill. App. 3d 774, 778-79, 189 Ill. Dec. 88, 619 N.E.2d 789 (1993). Thus, "the trial court may consider pleadings, depositions, and affidavits." Zedella v. Gibson, 165 Ill. 2d 181, 185, 209 Ill. Dec. 27, 650 N.E.2d 1000 (1995). Further, an exhibit attached to a complaint controls, and a motion to dismiss does not admit allegations of the complaint if such allegations are in conflict with the facts disclosed in the exhibit. Zedella, 165 Ill. 2d at 185; Abbott, 249 Ill. App. 3d at 779. We review the granting of both sections 2--615 and 2--619 motions to dismiss de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 189 Ill. Dec. 31, 619 N.E.2d 732 (1993); Joseph v. Collins, 272 Ill. App. 3d 200, 206, 208 Ill. Dec. 604, 649 N.E.2d 964 (1995). "The question on appeal is 'whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.'" Zedella, 165 Ill. 2d at 185-86, quoting Kedzie, 156 Ill. 2d at 116-17. We believe dismissal in this case was proper.

The plaintiff argues that neither section 2--201 of the Tort Immunity Act (745 ILCS 10/2--201 (West 1992)) nor section 1 of the Emergency Care Act (745 ILCS 20/1 (West 1992)) provides immunity for the defendants-EMTs. The plaintiff asserts that section 17(a) of the EMS Act (210 ILCS 50/17(a) (West 1992)) is the only immunity provision applicable to the defendants-EMTs. The defendants argue that the trial court ...

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