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HENSLEE v. PROVENA HOSPITALS

May 12, 2005.

SALLY HENSLEE, as Administrator of the Estate of SHIRLEY J. JOHNSON, Deceased, and KENNETH E. STRECKERT, as Executor of the Estate of Richard A. Johnson, Deceased, Plaintiffs,
v.
PROVENA HOSPITALS, an Illinois Corporation d/b/a PROVENA SAINT JOSEPH HOSPITAL and as PROVENA CONVENIENT CARE; WALTER DRUBKA, M.D.; and ALGONQUIN/LAKE IN THE HILLS FIRE PROTECTION DISTRICT, an Illinois municipal body corporate, Defendants.



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This lawsuit arises out of a tragic event from which Shirley Johnson ("Johnson") suffered brain damage and eventually died. In the afternoon of July 14, 2002, Johnson experienced an allergic reaction to peanut oil and began to have trouble breathing. Johnson's husband brought her to an immediate care center, where she was transferred in an ambulance to a local hospital. By the time Johnson reached the hospital, she was clinically dead, with no blood pressure, no pulse, and no respiration. The Administrator of Johnson's estate and the Executor of her husband's estate (collectively, "Plaintiffs") now bring this suit against three defendants: Dr. Walter Drubka ("Dr. Drubka"), a doctor at the immediate care center; Algonquin/Lake-In-The-Hills Fire Protection District ("Algonquin"), the governmental entity that provided the ambulance and emergency medical service to Johnson; and Provena Medical Hospital ("Provena"), the hospital where she was taken for treatment. All three of the Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. However, this opinion only addresses Defendant Algonquin's motion for summary judgment.

  In Counts IV and VII of her amended complaint, Plaintiff alleges that Algonquin's paramedics willfully and wantonly failed to provide Johnson with appropriate medical care. Algonquin has moved for summary judgment on Counts IV and VII arguing that there is no basis for liability under the Illinois Emergency Medical Services Systems Act, 210 ILCS 50/1, et seq. because there is no issue of material fact to show that the paramedics acted willfully and wantonly. This Court finds that there is a material issue of fact for a jury to decide and therefore denies Algonquin's motion for summary judgment.

  II. FACTUAL BACKGROUND*fn1 On July 14, 2002, Shirley Johnson experienced an anaphylactic reaction*fn2 to food she had consumed and she began to have trouble breathing. Def.'s 56.1 ¶ B2-3. Johnson's husband, Richard Johnson, drove her to the Provena Immediate Care Center ("Immediate Care Center") located in Lake-In-The-Hills. Id. ¶ B4. The Johnsons arrived at the Immediate Care Center at approximately 4:52 p.m. Id. ¶ B5. Richard Johnson entered the center and reported that his wife was having difficulty breathing. Id. He told the doctor at the reception desk, Dr. Drubka, that his wife had a history of peanut allergies and that earlier they had eaten Chinese food. Id.

  The Immediate Care Center called 911 almost immediately after the Johnsons arrived. Id. ¶ B6. The ambulance was dispatched at approximately 4:53 p.m. and arrived on the scene at 4:56 p.m. Id. ¶ B7. The ambulance crew was comprised of Jennifer Pollack (now known as Jennifer Corneliuson) ("Corneliuson"), Jean Noll (now known as Jean Shelby) ("Shelby"), and Terry Corless ("Corless"). Id. ¶ B8. Corky Corless and Erik Busby came to the scene in a fire engine. Id. ¶ B9. Upon arrival of the paramedics, Johnson was seated in the passenger seat of her automobile. Id. ¶ B11. Shelby coordinated Johnson's removal from the car while Corneliuson worked to set up the ambulance. Id. ¶ B13.

  A. THE PARAMEDICS ASSESS JOHNSON'S CONDITION

  The parties disagree as to Johnson's condition when the paramedics first arrived. Though the parties agree that Johnson appeared to be in severe respiratory distress, they disagree over whether Johnson's jaw was clenched and whether she required immediate intubation. Paramedic Shelby testified in her deposition that Johnson's jaw was clenched. Id. ¶ B12; Shelby Dep. at 138-39. Plaintiff relies upon Dr. Drubka, who testified that Johnson's jaw was not clenched and that, in fact, he placed an oral airway in her mouth without any difficulty. Pl.'s 56.1 ¶ 2-3; Drubka Dep. at 74. Plaintiffs also claim that once Johnson was removed from her car and placed on the paramedics gurney, Dr. Drubka informed the paramedics that Johnson needed immediate intubation. Pl.'s 56.1 ¶ 4. Dr. Drubka testified that he offered his services to the paramedics in intubating Johnson, but the paramedics expressly rejected his offer. Id. ¶ 10-12. Defendant Algonquin denies that Dr. Drubka told the paramedics that Johnson needed immediate intubation or that he offered to help. Def.'s Resp. to Pl.'s 56.1 ¶ 10-12, 22, 25. Under Algonquin's "Advanced Life Support Standard Operating Procedures/Standing Medical Orders" ("SOPs"), "[p]hysicians who are present at the scene may choose to offer their services and direct patient care. Such a physician may be allowed to control patient care only when proper identification is shown." SOP at Intro. ¶ 10; Pl.'s 56.1 ¶ 21.

  Due to Johnson's condition, the paramedics classified the call as a "load and go"; a call where, due to the patient's poor condition, a patient is transported to the hospital as quickly as possible. Def.'s 56.1 ¶ B16. The paramedics placed a bag valve mask on Johnson and loaded her into the ambulance. Id. ¶ B17. The purpose of a bag valve mask is to oxygenate the patient while setting up to intubate*fn3 her. Id. ¶ B17.

  B. THE PARAMEDICS LOAD JOHNSON INTO THE AMBULANCE

  Once Johnson was loaded into the ambulance, the parties disagree on exactly what happened and why. A report created by the paramedics at the conclusion of the call (hereinafter referred to as the "Ambulance Report"), id. ¶ B40, shows that the paramedics arrived at the Immediate Care Center at 4:56 p.m., left for the hospital at 5:12 p.m., and arrived at Provena St. Joseph Hospital at 5:25 p.m. Pl. Exh. E at 50. However, there are several areas of dispute surrounding the treatment Johnson received during the thirty minutes she remained in the ambulance, including: 1) the reason for two failed IV attempts; 2) the reason for a failed placement of an oral airway; 3) the amount of time Johnson was in the ambulance before the paramedics attempted to intubate her; 4) the reason for two failed intubation attempts; and 5) whether the final intubation attempt was successful.

  The Ambulance Report reflects that the paramedics attempted to place an IV in Johnson three times: once at 5:01, again at 5:04, and finally, with success, at 5:06. Def.'s 56.1 ¶ B18, 22-23. Algonquin argues that the IV placement was unsuccessful because Johnson was "extremely obese" and her vascular system was shutting down, a fact the Plaintiffs deny. Def.'s 56.1 ¶ B19. The parties also dispute whether the paramedics administered epinephrine to Johnson. Def.'s 56.1 ¶ B18. Epinephrine is "used in the treatment of bronchial asthma" and "acute allergic disorders" because it results in the "relaxation of bronchiolar [and other] muscle". STEDMAN'S MEDICAL DICTIONARY 585 (26th Ed., 1995). According to the SOPs, paramedics responding to a patient with "Severe Systematic Reaction/Anaphylactic Shock" should administer epinephrine as one of the initial steps in patient care. SOPs at 9; Pl.'s 56.1 ¶ 26. Algonquin claims that the paramedics administered epinephrine, citing the sworn testimony of two of the paramedics, but the Plaintiffs argue that they didn't administer epinephrine because there is no indication of it in the Ambulance Report. Def.'s 56.1 ¶ B18.

  The Ambulance Report further reflects that the paramedics twice attempted to place an adjunct oral airway in Johnson: once unsuccessfully at 5:02 p.m., and again, successfully at 5:04 p.m. Pl. Exh. E at 51. The cause of the failed first attempt at placing an oral airway is disputed: Algonquin claims that it was unsuccessful because Johnson's teeth were clenched; Plaintiffs again deny that Johnson's jaw was clenched based upon Dr. Drubka's testimony. Def.'s 56.1 ¶ B20; Pl.'s 56.1 ¶ 2. The Ambulance Report does indicate that the paramedics administered the drug "Versed" three times: at 5:09 p.m., 5:16 p.m., and again at 5:20 p.m. Pl. Exh. E at 50. "Versed" is a sedative; under the SOPs it is listed as the first sedative paramedics should give a patient prior to intubation. SOPs at 8; Pl.'s 56.1 ¶ 23. Algonquin claims that the Versed was given in an attempt to relax Johnson's jaw; the Plaintiffs merely admit that the Versed was administered. Def.'s 56.1 ¶ B23, 24. The SOPs also state that "[i]f not sedated sufficiently to intubate in 60 seconds: ETIMODATE 0.5 mg/kg IVP." SOPs at 8. Plaintiffs argue that the ambulance was equipped with Etimodate at the time of the incident and therefore Algonquin failed to comply with standard operating procedure. Pl.'s 56.1 ¶ 23-24.

  The parties also disagree on the amount of time Johnson was in the ambulance before the paramedics attempted to intubate her. Algonquin claims, based upon the testimony of paramedic Corneliuson, that Johnson was in the ambulance between three and five minutes before the paramedics made the first attempt to intubate her. Def.'s 56.1 ¶ B21. Plaintiffs argue that Johnson was in the ambulance for about twelve minutes before the intubation attempt, based upon the ambulance report which indicates that the first intubation attempt was unsuccessful at 5:10 p.m. Def.'s 56.1 ¶ B26. The parties do agree that the ambulance left the Care Center at 5:12, before a successful intubation. Def.'s 56.1 ¶ B27.

  On the way to the hospital, the Ambulance Report indicates that the paramedics tried to intubate Johnson again at 5:18 p.m. without success. Def.'s 56.1 ¶ B28, 29. Again, the parties disagree as to the reason for the failed intubation attempts: Algonquin argues that Johnson's teeth were clenched, making intubation impossible, and the Plaintiffs claim it was because the paramedics failed to comply with the SOPs. Def.'s 56.1 ¶ 30; Pl.'s 56.1 ¶ 32.

  At 5:22, the Ambulance Report indicates that the paramedics attempted another intubation. Algonquin claims that this attempt was successful, Def.'s 56.1 ¶ 32, while the Plaintiffs believe that the paramedics "carelessly" placed the tube in Johnson's esophagus instead of her trachea. Def.'s 56.1 ¶ 32. Algonquin claims that after the tube was placed, the paramedics applied a device called a capnographer to the end of the bag valve mask which confirmed that the tube was placed correctly, and that Shelby listened to the stomach and lungs to confirm that there was no air entering the stomach through the ...


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