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Tornabene v. Paramedic Services of Illinois

June 14, 2000


Appeal from the Circuit Court of Cook County No. 93 L 10220 Honorable Loretta C. Douglas, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Defendant appeals a substantial jury verdict for plaintiff. Plaintiff cross- appeals. We reverse and remand for a new trial because the jury received a nonpattern jury instruction on willful and wanton negligence that misstated the law in Illinois.

To resolve the principal issue in this case we must examine language contained in a nonpattern jury instruction tendered by plaintiff. Defendant objected to the instruction, but the objection was overruled and the instruction was submitted to the jury as a definition of willful and wanton misconduct. The instruction defined willful and wanton misconduct as: "a course of action which shows an utter indifference to or conscious disregard for the safety of others, or a course of conduct involving a failure, after knowledge of an impending danger, to exercise ordinary care to prevent a danger." Plaintiff insists the language accurately states Illinois law. We disagree.

The record reveals the following facts relevant to the issues raised in this appeal. Rose Marie Tornabene, the decedent, was a 57-year-old woman with a 35-year smoking history. Tornabene suffered a pneumothorax or collapsed lung in 1987, resulting in surgery. Tornabene was also diagnosed with chronic obstructive pulmonary disease, also known as emphysema. Tornabene's doctor believed that the disease had spread to both lungs.

Tornabene had difficulty breathing on August 23, 1992. She woke up coughing at 4 a.m. Jill Cook, Tornabene's daughter, called paramedics at about 4:05 a.m. Defendant Paramedic Services of Illinois (PSI) arrived at about 4:12 a.m.

Paramedics Stephen Swiatkiewicz and Patricia Hutton went to Tornabene's bedroom. Tornabene was in distress and signaling that she could not breathe. Cook testified she told Hutton that her mother had emphysema and had suffered a collapsed lung in 1987.

The paramedics measured Tornabene's vital signs, blood pressure and pulse, then put an oxygen mask on her. Tornabene was uncooperative and repeatedly pulled the mask off. Her condition worsened as the paramedics prepared to take her to the hospital. They struggled with her to secure her to a stretcher. The paramedics spent 10 minutes in the house before taking her to the ambulance.

Tornabene was connected to a heart monitor and an EKG machine in the ambulance. Readings of her vital signs showed that her blood pressure, pulse and respiratory rate had dropped, symptoms of respiratory distress. The paramedics then tried to intubate her and assist her breathing with a bag valve mask. Tornabene lost consciousness in the ambulance, at about 4:25 a.m., 13 minutes after the paramedics had arrived at her house.

Paramedic Hutton called Resurrection Hospital and spoke to Nicoletta Ronstadt, an emergency room and mobile intensive care nurse (MICN). Hutton told Ronstadt about Tornabene's respiratory arrest, history of emphysema, shortness of breath, chest pain and unsuccessful attempts to intubate. The call ended at 4:28 a.m. Ronstadt did not tell the paramedics to immediately transport the patient because she knew they were treating the respiratory arrest. Hutton managed to reintubate Tornabene and assist her breathing at about 4:29 a.m.

Hospital records show that Tornabene arrived at the hospital at 4:35 a.m. in full cardiac arrest. Dr. Netanel Herscovitch, the emergency room physician, began CPR at 4:36 a.m. Tornabene became asystolic and unsalvageable at 4:45 a.m. Dr. Herscovitch decompressed Tornabene at 4:47 a.m. She was pronounced dead at 4:51 a.m.

Dr. Herscovitch examined Tornabene's Xrays with the paramedics and told them that Tornabene's right lung had collapsed. He then told the family of Tornabene's death. Dr. Herscovitch told them that if Tornabene had arrived 10 minutes earlier, he could have saved her.

Plaintiff filed suit against PSI, the individual paramedics, Resurrection Hospital, Dr. Herscovitch and nurse Ronstadt. Plaintiff alleged negligence and willful and wanton conduct against PSI and the paramedics. Plaintiff settled with the hospital, emergency room doctor and nurse for $750,000 before trial. These parties were then dismissed with prejudice.

At a pretrial conference, PSI asked the court for a complete setoff against the hospital settlement in the event of a verdict for plaintiff. Plaintiff's attorney said she was not prepared to address the issue. The court said the issue would be resolved later.

PSI moved for summary judgment on the negligence counts, relying on the statutory immunity in the Emergency Medical Services (EMS) Systems Act (210 ILCS 50/17(a) (West 1994)). The court granted the motion. The case went to trial only on PSI's alleged willful and wanton conduct. Plaintiff moved, in limine, to exclude evidence of Tornabene's smoking history and application for disability benefits. The court granted the motion. The court denied PSI's motion to limit the number of plaintiff's witnesses and to exclude Dr. Herscovitch's statement to the family. But the court reserved ruling on PSI's Rule 213(g) objection to expert testimony on salvageability. 166 Ill. 2d R. 213(g). The court told PSI the motion could be renewed at trial. PSI did not renew the motion, choosing not to call an expert witness on the issue, which might have led to the introduction on cross-examination of Tornabene's smoking history and application for disability benefits.

The evidence at trial established that pneumothorax happens when air escapes from a lung into the chest cavity. A pneumothorax is either spontaneous or trauma-induced. A spontaneous pneumothorax can happen to a person suffering from lung disease, such as emphysema.

Evidence was also introduced that pneumothoraxes are either "simple" or "tension." A "simple" pneumothorax does not compromise breathing. A "tension" pneumothorax causes pressure to build in the chest cavity. As a result, the lungs take in less air and the heart contracts. Symptoms of a tension pneumothorax include shortness of breath, chest pain, agitation, increased respiratory rate, decreased breath sounds and rapid heart rate. The treatment for a trauma or spontaneous tension pneumothorax is a needle decompression. The condition is fatal if untreated. A spontaneous tension pneumothorax is rare.

The evidence also established that PSI paramedics are required to follow the standing operating procedures (SOP) in their emergency medical services (EMS) system. The SOP are printed guidelines paramedics follow to treat patients in the field when a doctor is not present.

PSI is part of the Good Samaritan EMS system. The Good Samaritan SOP manuals are color coded. Respiratory problems are on blue pages. Trauma-induced injuries are found on green pages. Tension pneumothorax is listed in the green "Chest Injuries" section. Paramedics are instructed to perform a needle decompression for a trauma-induced tension pneumothorax. The SOP do not include guidelines for treating a nontraumatic, spontaneous tension pneumothorax. Dr. Joseph Hartman, the project medical director of the Good Samaritan EMS system, testified that because spontaneous tension pneumothoraxes are rare, paramedics are authorized to decompress only at the direction of a doctor. Dr. ...

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