Appeal from the Circuit Court of Cook County 93 L 4313 Honorable Philip L. Bronstein, judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
The issue on appeal is whether the trial court, in granting summary judgment in favor of the defendants, correctly rejected application of the lost chance doctrine. Under the lost chance doctrine, proximate causation exists if plaintiff can show to a reasonable degree of medical certainty that defendant's conduct proximately increased the risk of harm or lost chance of recovery. Holton v. Memorial Hospital, 176 Ill. 2d 95, 119, 679 N.E. 2d 1202 (1997).
Defendants prevailed on mirror motions for summary judgment. The only argument raised by each defendant was that plaintiff could not prove proximate causation as a matter of law because Roy Meck had less than a 50% chance of surviving his heart attack absent the alleged misconduct of the defendants.
Plaintiffs contend that summary judgment must be reversed because, after the judgment in defendants' favor, the Illinois Supreme Court in Holton v. Memorial Hospital reconciled the traditional concept of proximate causation with the lost chance doctrine and held that the lost chance doctrine does not lower plaintiff's burden of proving causation. Holton, 176 Ill. 2d at 119.
The Holton case reviewed application of the lost chance doctrine in the context of a request by defendant to reverse the judgment entered upon the jury's verdict alleging that the plaintiffs failed to establish that the conduct of the defendant proximately caused plaintiff's injuries. Although unlike Holton, in this case we review application of the lost chance doctrine in the context of a summary judgment motion, we find Holton instructive.
The lost chance doctrine as applied in Holton recognizes that proximate causation in a medical malpractice case exists if plaintiff can show that defendant's malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery to the injured party. Holton, 176 Ill. 2d at 119.
Applying the reasoning of the Holton case, we find there is a genuine issue of material fact as to whether defendants' alleged willful and wanton conduct proximately caused the death of Mr. Meck. We believe this issue raises questions that should be resolved by the trier of fact. We hold that to sustain the burden of proving proximate cause, a plaintiff is not required to establish that the decedent had a greater than 50% chance of survival absent the defendant's alleged misconduct. We emphasize this application of the lost chance doctrine does not relax or lower plaintiff's burden of proving causation.
For the reasons that follow, we find that the trial court erred in granting defendants' motions for summary judgment and we reverse and remand for further action consistent with this opinion.
On the morning of March 14, 1993, Roy Meck, age 36, suffered cardiac arrest in his home in Berwyn. Mrs. Meck immediately telephoned for help from her neighbors, Maureen and Paul Gardner. Mrs. Gardner is a registered, intensive-care unit (ICU) nurse at MacNeal Hospital and is certified in advanced cardiac life support (ACLS). Mr. Gardner is a Berwyn fire fighter who is certified in cardiopulmonary resuscitation (CPR). Mr. and Mrs. Gardner rushed to the Meck home to find Mr. Meck lying on the floor in the kitchen. Mr. Gardner called 9-1-1.
Mr. Meck's face was blue, he had no pulse, no chest movement, no sign of breathing and his mouth was full of vomit. The Gardners cleared the vomit from Mr. Meck's mouth and began CPR within approximately one minute of the cardiac arrest. They checked twice for a pulse, but at no point from the time they started CPR until defendants arrived 12 or 13 minutes later did they detect a pulse or independent ventilations.
The City of Berwyn had three ambulances on March 14, 1993. Unit 95 and Unit 96 were advanced life support vehicles, each of which was staffed by two paramedics employed by Paramedic Services of Illinois (PSI). Unit 97 was a basic life support vehicle and was staffed by emergency medical technicians (EMTs) employed by the City of Berwyn.
Berwyn EMT Unit 97 and PSI Unit 95 arrived minutes after receiving Mr. Gardner's call. The Berwyn EMTs arrived first. PSI paramedics arrived 28 seconds later.
The EMTs found Mr. Meck lying on the kitchen floor of his home. When they arrived, the Gardners were already administering CPR to decedent. Defendants state that at this time Mr. Meck was in cardiac arrest, unconscious and "unresponsive." He had no pulse, no blood pressure and was not breathing. His pupils were dilated and his skin was blue in color. The paramedics estimated that Mr. Meck's "downtime" had already been 5 to 10 minutes by the time they arrived.
The PSI paramedics stated they defibrillated Roy Meck within seven minutes of his collapse, intubated him and were able to establish a pulse and blood pressure. PSI transported him to MacNeal Hospital with a normal pulse and normal sinus rhythm. However, although Mr. Meck's heart was resuscitated and he was delivered to the hospital alive and with a normal pulse, by the time he arrived at MacNeal he had suffered severe neurological damage. Mr. Meck began to have seizures and died four days later.
Plaintiff's fourth amended complaint contains six counts, all of which allege willful and wanton misconduct on the part of defendants. Count I alleges willful and wanton misconduct of PSI under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 1996)). Count II alleges willful and wanton conduct on the part of PSI under the Survival Act (755 ILCS 5/27-6 (West 1996)). Count III alleges willful and wanton conduct on the part of PSI under the Rights of Married Persons Act (Family Expense Act) (750 ILCS 65/15 (West 1996)). Count IV alleges willful and wanton misconduct of the City of Berwyn under the Wrongful Death Act. Count V alleges willful and wanton misconduct on the part of the City of Berwyn under the Survival Act. Count VI alleges willful and wanton misconduct of the City of Berwyn under the Family Expense Act.
Plaintiff argues that the paramedics and EMTs violated their respective standards of care by, inter alia, willfully and wantonly engaging in the following misconduct or actions inconsistent with their training: (1) failing to provide oxygen; (2) failing to use an appropriate stretcher; (3) failing to use suction; (4) failing to provide basic CPR; (5) defibrillating Mr. Meck only once before ...