Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
We inquire into the extent of statutory immunity given the City of Chicago where its paramedics allegedly failed to perform an EKG or defibrillation on a patient they had diagnosed as having had a heart attack.
The trial court decided in favor of immunity and granted the City's motion to dismiss the complaint. We conclude the trial court's decision was premature. We vacate the order dismissing the lawsuit and remand this cause for further proceedings.
Plaintiff, Yvonne Antonacci, individually and as special administrator of the estate of James Antonacci, deceased, sued defendant, City of Chicago, alleging that 911 personnel willfully and wantonly mistreated plaintiff's decedent's heart attack, resulting in his death. Defendant filed a 2-619 Motion to Dismiss (735 ILCS 5/2-619 (West 2000)) in lieu of an answer, based on the immunity provisions of sections 10/6-105 and 10/6-106(a) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/6-105, 10/6-106(a) (West 2000)).
Plaintiff filed a second amended complaint on May 3, 2001. She later attached a Physician's Report, pursuant to section 2-622(a)(1) of the Code of Civil Procedure. 735 ILCS 5/2-622(a)(1) (West 2000). No depositions were taken in this case. Defendant concedes in its brief on appeal the allegations in the Physician's Report are a part of the plaintiff's complaint. We look to the second amended complaint and the Physician's Report attached to it for the facts of this case.
The complaint alleged on October 5, 2000, plaintiff's decedent suffered a heart attack *fn1 at his home in Chicago. Plaintiff called 911 and requested an emergency vehicle be dispatched to the home. After two telephone calls to the 911 system, an emergency vehicle with 911 personnel arrived at the home. On arrival, the 911 personnel "began treating plaintiff's decedent," at which time he had a pulse and a heartbeat. Knowing that plaintiff's decedent required defibrillation *fn2 to regulate his heartbeat and failure to defibrillate was likely to result in death or great bodily injury, the paramedics "intentionally and knowingly refused to defibrillate plaintiff's decedent."
The complaint also alleged the 911 personnel refused to run an EKG *fn3 strip on plaintiff's decedent, knowing such a strip was necessary to determine his cardiac rhythm. The 911 personnel knew failure to make this determination would make it impossible to properly determine the course of treatment, creating a strong risk of death or great bodily harm.
Count I of the complaint alleged as a direct and proximate result of the defendant's willful and wanton acts and/or omissions, plaintiff's decedent sustained injuries resulting in his death on October 5, 2000. Count II alleged as a result of defendant's actions and/or omissions, plaintiff's decedent suffered injuries which caused him conscious pain and suffering, and disability and disfigurement before his death on October 5, 2000.
In the Physician's Report attached to the complaint, the physician states his opinion, based on a review of medical records, that plaintiff's decedent suffered a myocardial infarction. The 911 paramedics who responded correctly diagnosed that he had suffered a heart attack and began treating him for that condition. The standard of practice for treatment of a heart attack would be electronic defibrillation unless the performance of an EKG confirmed the patient was in asystole. *fn4 The EKG is the only way the paramedics could have determined if the heart attack suffered by the patient would be refractory *fn5 to defibrillation because of the presence of asystole.
While the paramedic records contain a statement that an EKG was performed and the patient was in asystole, there are no strips or evidence in the record to confirm an EKG actually was performed. Witnesses present at the scene say no EKG was performed. In the physician's opinion, the paramedics deviated from accepted standards of medical practice in failing to perform an EKG and in failing to defibrillate the patient. The physician's report concludes by stating if the patient had been treated in compliance with accepted standards of medical care, he would have survived the heart attack he suffered.
In response to the complaint, defendant filed a section 2-619 Motion to Dismiss. 735 ILCS 5/2-619 (West 2000). In the motion, defendant contended plaintiff's claims were barred by sections 6-105 and 6-106(a) of the Tort Immunity Act. *fn6 745 ILCS 10/6-105, 10/6-106(a) (West 2000).
"Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others." 745 ILCS 10/6-105 (West 2000).
"(a) Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental or physical illness or addiction or from ...