United States District Court, N.D. Illinois, Eastern Division
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,
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
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
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
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 esophagus. Def.'s 56.1 ¶ 33. Plaintiffs deny that the
paramedics took these actions and notes that there is no support
for these assertions in the ambulance report.
C. THE AMBULANCE ARRIVES AT THE HOSPITAL
The ambulance arrived at the hospital at 5:25, approximately
three minutes after the last intubation attempt. Def.'s 56.1 ¶
35. After the medics placed Johnson on the hospital gurney, her
care was turned over to Dr. Richard Urgo, the emergency room
physician. Def.'s 56.1 ¶ 38. A few minutes later, Dr. Urgo told
the paramedics that the endotracheal tube was not in Johnson's
trachea, but rather in her esophagus. Def.'s 56.1 ¶ 39. Dr. Urgo
later testified that when Johnson arrived at the hospital her
condition was clinically dead, with no blood pressure, no pulse,
and no respiration. Pl.'s 56.1 ¶ 35. Dr. Urgo also testified that
Johnson was cyanotic,*fn4 with a badly distended abdomen.
Pl.'s 56.1 ¶ 35. Finally, Dr. Urgo testified that it took him
four attempts and about 20 to 25 minutes before he could
successfully intubate Johnson. Def.'s 56.1 ¶ 46.
Algonquin claims that as Johnson was removed from the
ambulance, her head was jostled, which could explain the change
in the position of the endotracheal tube. Def.'s 56.1 ¶ 36-37.
Plaintiffs deny that Johnson's head was jostled on the gurney
ride and assert that the time it took to transport Johnson from
the ambulance to the place where Dr. Urgo first examined her (which Plaintiffs estimate to be about 60 seconds)
would not be sufficient to allow a misplaced endotracheal tube to
result in her badly distended abdomen. Pl.'s 56.1 ¶ 33, 37.
D. THE BATTLE OF THE EXPERTS*fn5
In support of their theory that the paramedics' conduct was
willful and wanton, the Plaintiffs attached two expert affidavits
to their response brief. The first affiant, Frank W. Nagorka,
J.D., EMT-P ("Nagorka"), is both a licensed attorney in Illinois
as well as a licensed and practicing paramedic. Nargorka Aff. ¶
1. The second affiant, Dr. Frank J. Baker II ("Dr. Baker"), is a
licensed physician in the states of Florida, Indiana, and
Illinois. Baker Aff. at 1. After reviewing the relevant
depositions and other evidence, Nargoka and Dr. Baker opined that
the paramedics had failed to adhere to applicable standards of
care in several ways: by not following Dr. Drubka's orders
regarding the intubation (Nargoka Aff. ¶ 5; Baker Aff. at 5-7);
by not accepting Dr. Drubka's offer to help intubate Johnson even though he was the highest medical authority on the scene (Nargoka
Aff. ¶ 5; Baker Aff. at 5-7); by placing Johnson in the ambulance
instead of moving her into the Immediate Care Center (Baker Aff.
at 7); by failing to manage Johnson's airway immediately (Baker
Aff. at 8); by failing to follow the specific protocols for
intubation (Nargoka Aff. ¶ 8; Baker Aff. at 8-9); by failing to
follow the SOPs in several material ways (Nargoka Aff. ¶ 9; Baker
Aff. at 8); and by mismanaging Johnson's airway (Nargoka Aff. ¶
10: Baker Aff. at 9-10).
Algonquin also attached an affidavit from an expert, Dr. Max D.
Koenigsberg ("Dr. Koenigsberg"). Dr. Koenigsberg is a physician
who is licensed to practice in Illinois. Koenigsberg Aff. ¶ 1. In
his affidavit, Dr. Koenigsberg opined that the paramedics'
actions were within the scope of their training and were not
willful and wanton. Koenigsberg Aff. ¶ 12, 14.
III. LEGAL STANDARDS
Plaintiffs invoke the jurisdiction of the Court pursuant to the
Court's federal question jurisdiction set forth in
28 U.S.C. § 1331. Plaintiffs allege that Defendants violated the Emergency
Medical Treatment and Active Labor Act, 42 U.S.C. §§ 1395, et
seq. The Court therefore has supplemental jurisdiction over the
remaining allegations in the complaint pursuant to
28 U.S.C. § 1357(a). Venue is proper because at all relevant times, the
parties resided and all actions complained of occurred within the
Northern District of Illinois. The parties have also consented to
a Magistrate Judge's jurisdiction under 28 USC § 636 (c)(1).
B. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the record shows that there is no
genuine issue as to any material fact, and that the moving
parties are entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). A genuine issue for trial exists only when "the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted. Id.
at 249-50; see also NutraSweet Co. v. X-L Engineering Co.,
227 F.3d 776, 785 (7th Cir. 2000). In deciding a motion for summary
judgment, the Court must view all evidence in the light most
favorable to the nonmoving party, Germano v. Winnebago County,
Ill., 403 F.3d 926, 927 (7th Cir. 2005), and must draw all
reasonable inferences in the nonmovant's favor. Harper v.
Albert, 400 F.3d 1052, 1067 (7th Cir. 2005).
When a material fact or a set of facts yields competing, but
reasonable, inferences, then there is a genuine issue that
precludes summary judgment. The non-moving party's burden is to
identify facts that are both material and genuinely disputed.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). To be
material, a fact must be outcome determinative under the
substantive law governing the motion. Insolia v. Philip Morris
Inc., 216 F.3d 596, 598-99 (7th Cir. 2000). A "genuine issue"
exists when the party opposing the motion for summary judgment
serves and files, pursuant to Local Rule 56.1, a concise
statement outlining the material facts that require denial of summary
judgment, supported by citations to the evidentiary materials
that support those denials (e.g., affidavits, depositions,
answers to interrogatories, admissions etc.). Fed.R.Civ.P.
56(c). Although the party seeking summary judgment bears the
initial burden of proving that there is no genuine issue of
material fact, Celotex, 477 U.S. at 323, the non-moving party
cannot rely upon the pleadings alone, but must use the
evidentiary tools outlined above to identify the material facts
that show there is a genuine issue for trial. Id. at 324;
Insolia, 216 F.3d at 598.
C. THE ILLINOIS EMERGENCY MEDICAL SERVICES SYSTEMS ACT
Algonquin's liability for its actions in providing emergency
medical care and treatment to Johnson is governed by statute, the
Illinois Emergency Medical Services Systems Act ("EMS Act").
210 ILCS 50/1 et seq. The Algonquin paramedics are a part of an
emergency medical system established by the legislature through
the EMS Act. The purpose of the EMS Act is to provide the state
with a system for emergency medical services. 210 ILCS 50/2.
Under the EMS Act, the Illinois Department of Public Health must
approve individual EMS systems. It is then up to the individual
systems, via the system's EMS Medical Director, to provide
written or verbal directions to its emergency workers.
210 ILCS 50/3.10. Algonquin's System has adopted written Standard
Operating Procedures/Standing Medical Orders, referred to herein
as "the SOPs".
Algonquin's liability for its actions in providing emergency
medical care and treatment to Johnson is governed by the EMS Act.
210 ILCS 50/1, et seq. The EMS Act provides that emergency
medical services providers are immune from civil liability,
except for willful and wanton conduct:
(a) Any person, agency or governmental body
certified, licensed or authorized pursuant to this
Act or rules thereunder, who in good faith provides
emergency or non-emergency medical services during a
Department approved training course, in the normal
course of conducting their duties, or in an
emergency, shall not be civilly liable as a result of
their acts or omissions in providing such services
unless such acts or omissions, including the
bypassing of nearby hospitals or medical facilities
in accordance with the protocols developed pursuant
to this Act, constitute willful and wanton
210 ILCS 50/3.150.
Under the summary judgment standard, this Court must view all
material facts in the light most favorable to the plaintiff.
Therefore, for purposes of this opinion only, the Court accepts
as true the Plaintiffs' factually supported version of events:
when the paramedics arrived, Johnson was in extreme respiratory
distress; the paramedics heard Dr. Drubka say that Johnson was in
need of immediate intubation but did not first attempt to
intubate Johnson until about twelve minutes later; the paramedics
turned down Dr. Drubka's offer to help with the intubation; the
paramedics did not leave for the hospital until sixteen minutes
after they arrived, despite having categorized the call as a
"load and go", and despite the fact that Johnson still had not
been intubated; Johnson's jaw was not clenched, and yet the
paramedics failed in their oral airway and intubation attempts;
the paramedics did not, on several separate occasions, follow the
District's SOPs; and on their third attempt at intubation, the
paramedics misdirected the tube and placed it in Johnson's
esophagus instead of in her trachea. The issue is whether, if the
Plaintiffs prove their version of the events, a jury could find that the paramedics' actions rose to the level of
willful and wanton misconduct.
A. ILLINOIS COURTS DEFINE "WILLFUL AND WANTON" CONDUCT
The Illinois Supreme Court most recently defined willful and
wanton misconduct within the meaning of the EMS Act as follows:
A wilful or wanton injury must have been intentional
or the act must have been committed under
circumstances exhibiting a reckless disregard for the
safety of others, such as a failure, after knowledge
of impending danger, to exercise ordinary care to
prevent it or a failure to discover the danger
through recklessness or carelessness when it could
have been discovered by the exercise of ordinary
American Nat'l Bank & Trust Co. v. City of Chi.,
735 N.E.2d 551
, 557 (Ill. 2000) (quoting Ziarko v. Soo Line R.R. Co.,
641 N.E.2d 402
, 405 (Ill. 1994).
The Illinois Supreme Court has described willful and wanton
conduct as a hybrid between negligent and intentionally tortious
behavior. Ziarco, 641 N.E.2d at 406. There is a "thin line"
between simple negligence and willful and wanton acts. Id.
"Under the facts of one case, willful and wanton misconduct may
be only degrees more than ordinary negligence, while under the
facts of another case, willful and wanton acts may be only
degrees less than intentional wrongdoing. Id. Thus, willful and
wanton behavior "does not occupy a precise point on the continuum
of liability between negligent and intentional conduct." Hill v.
Galesburg Community Unit School Dist. 205, 805 N.E.2d 299, 305
Alternatively, the Illinois Supreme Court has also described
two types of willful and wanton conduct: `intentional' and `reckless'. Poole v. City of
Rolling Meadows, 656 N.E.2d 768, 771 (Ill. 1995). These two
types of willful and wanton conduct are distinguished by the
actor's mental state. Intentional willful and wanton conduct is
committed with "actual" or "deliberate" intent to harm. Illinois
Pattern Jury Instructions, Civil, No. 14.01 (1995). By contrast,
reckless willful and wanton conduct falls in between actual
intent and mere negligence. Poole, 656 N.E.2d at 771. The
Illinois legislature and the Illinois Supreme Court have defined
reckless willful and wanton conduct as conduct committed with
"utter indifference" to or "conscious disregard" for the safety
of others. Local Governmental and Governmental Employees Tort
Immunity Act, 745 ILCS 10/1-210; Pfister v. Shusta,
657 N.E.2d 1013, 1016 (Ill. 1995). In American National, the Illinois
Supreme Court described the required mental state as a "reckless
disregard" for the safety of others. American National,
735 N.E.2d at 557.
Whether willful and wanton conduct has been committed in any
given case requires close scrutiny of the facts as disclosed by
the evidence. O'Brien v. Township High School District 214,
415 N.E.2d 1015, 1018 (Ill. 1980). The Illinois Supreme Court, in
American National, provided two examples of conduct from which
a "reckless disregard" for the safety of others can be inferred.
The first is "a failure, after knowledge of impending danger, to
exercise ordinary care to prevent it." American National,
735 N.E.2d at 557. The second is "a failure to discover [a] danger
through recklessness or carelessness when it could have been
discovered by the exercise of ordinary care." Id.
An example of the second type of willful and wanton conduct is
found in American National. The plaintiff in American National had an asthma
attack and called 911 requesting paramedics. The Illinois Supreme
Court found that the lower court erred in granting the
defendant's motion to dismiss because a jury could find willful
and wanton conduct on the part of the City of Chicago. The court
relied upon the fact that a 911 dispatcher and the responding
paramedics failed to follow applicable standards of their
professions, leading to the plaintiff's death. First, the
dispatcher failed to stay on the phone with the caller even after
she said, "I think I'm going to die. Hurry." American Nat'l,
735 N.E.2d at 557. According to the plaintiff's complaint, the
dispatcher's actions were in conflict with applicable standards;
she should have stayed on the line with the plaintiff. Id.
Second, the paramedics who arrived at the caller's apartment,
believing that they were responding to a heart attack victim,
knocked on the unlocked door and then left the scene when they
received no response. Id. at 553, 557. These actions went
against the "vital and basic precepts of their training" which
dictated that rescue personnel should "Try Before You Pry", or
"attempt to open a shut door by turning the knob before engaging
in destructive methods to gain access, or before exiting the
scene altogether". Id. at 557.
American National was thus a case where the defendants
"failed to discover [a] danger through recklessness or
carelessness when it could have been discovered by the exercise
of ordinary care". The court noted: "If the paramedics had been
following these vital and basic precepts of their training, as
alleged, they would have found the victim inside the residence,
and perhaps then they could have saved her life." Id. at 558.
Similarly, in Kirwan v. Linconshire-Riverwoods Fire Protection
Dist., 811 N.E.2d 1259 (Ill.App.Ct. 2004), the court found that the plaintiff's
allegations were sufficient under the EMS Act to survive a motion
to dismiss based upon the claims that the paramedics had not
followed applicable procedures. Kirwan, 811 N.E.2d at 1264-65.
Kirwan involved very similar facts to this case; the paramedics
in Kirwan responded to a person suffering from an allergic
reaction to nuts and the patient later died. Id. at 1261. The
plaintiff's primary allegation was that the paramedics waited
between seven and eight minutes to administer two of the
necessary medications and never administered the third, despite
knowing that a patient was having difficulty breathing due to an
allergic reaction, and "despite their training and standard
operating procedures and accepted emergency practices." Id. at
1264. The court noted: "In cases of life-threatening emergencies,
seven or eight minutes can be a significant delay that could
amount to `utter indifference' or `conscious disregard' for
decedent's safety." Id. The court noted that "[w]hether a
defendant's breach of a legal duty amounts to willful and wanton
conduct is ordinarily a question of fact." Id. at 1264.
Other Illinois appellate courts have similarly noted that a
defendant's failure to follow procedures and applicable standards
could lead to a finding of willful and wanton conduct and
therefore preclude summary judgment. See Washington v. City of
Evanston, 782 N.E.2d 847 (Ill.App.Ct. 2002). In Washington,
the Illinois Appellate Court for the First District found that
summary judgment was appropriate and that the defendant doctor's
actions in assisting paramedics in the delivery of a breech baby
was not willful and wanton conduct because he did not violate the
SOPs, instructions, or guidelines. Washington,
782 N.E.2d at 854. Although in that case, there was not willful and wanton
conduct, the court noted: "Deviations from established guidelines and instructions on how
to respond to an emergency call have been found sufficient to
create a question for the trier of fact to determine whether a
defendant's conduct was willful and wanton." Id. at 853 (citing
American National, 735 N.E.2d at 558).
Algonquin cites numerous cases where Illinois courts have found
that paramedics' conduct, as a matter of law, did not constitute
willful and wanton conduct. See Bowden v. Cary Fire Protection
Dist., 710 N.E. 548 (Ill. 1999) (finding, as a matter of law,
that paramedics' conduct in treating an asthma patient who later
died was not willful and wanton because they provided "extensive
care" and because their conduct was "in conformity with the
written SOPs governing the treatment of asthma patients");
Tornabene v. Paramedic Svs. of Ill., 731 N.E.2d 965
(Ill.App.Ct. 2000) (superceded on other grounds, Turner v. Williams,
762 N.E.2d 70 (Ill.App.Ct. 2001)) (finding reversible error due to
an erroneous jury instruction which could have led the jury to
believe that willful and wanton conduct was similar to mere
negligence); Brock v. Anderson Road Assoc., 677 N.E.2d 985
(Ill.App.Ct. 1997) (abrogated on other grounds, Albers v.
Breen, 806 N.E.2d 667, 674 (Ill. 2004)) (holding that
paramedics' conduct in treating a patient who later died of heat
stroke was not willful and wanton because the paramedics conduct,
while perhaps negligent, was "commensurate with the SOPs");
Gleason v. Village of Peoria Heights, 565 N.E.2d 682
(Ill.App.Ct. 1991) (finding the defendant village not liable for the
actions of its paramedics as there was not evidence of willful
and wanton conduct).
On their face, the Illinois courts' rulings in Bowden,
Tornabene, Brock, and Gleason, are seemingly inconsistent with the conclusions reached in
American National, Kirwan, and Washington. After all,
Bowden, Tornabene, Brock, and Gleason all involved paramedics
whose patients suffered extremely negative outcomes, and yet the
courts found that the paramedics' actions were not willful and
wanton based upon the statutory protection afforded by the EMS
Act. As the Brock court noted:
It is quite unfortunate that in this instance the
defendants-EMTs were unable to save [the plaintiff's]
life. However, "the legislature intended to encourage
emergency response by trained medical personnel
without risk of malpractice liability for every bad
outcome or unfortunate occurrence." Further, when a
tragic event occurs, it is only with hindsight that
one can see what might have been done to prevent the
tragedy. However, we must evaluate the
defendants-EMTs' conduct in light of the
circumstances in which they found themselves and not
under the unassailable illumination of hindsight.
Brock, 677 N.E.2d at 993.
On closer inspection however, these cases are all easily
distinguishable from the cases discussed supra: in Bowden and
Brock, the paramedics provided extensive care and followed
applicable standards. In Bowden, the Illinois Supreme Court
found that the paramedics' conduct was not willful and wanton
after highlighting, step by step, the "extensive care and
treatment" provided to the patient by the paramedics and then
noting that the paramedics had followed the applicable SOPs.
Bowden, 710 N.E.2d at 553-54. Again in Brock, the court first
identified all of the steps the paramedics took to provide care
to the patient and then noted that these steps were all
commensurate with the SOPs. Brock, 677 N.E.2d at 993.
Tonabene and Gleason are also easily distinguishable from
American National, Kirwan, and Washington. In Tornabene,
the Illinois appellate court reversed a lower court's judgment awarding the plaintiff wrongful death damages based upon
the defendant paramedics' willful and wanton conduct. The
appellate court based its decision, however, on its finding that
the lower court's jury instruction on willful and wanton was
faulty; the instruction could have led the jury to believe that
willful and wanton conduct was too similar to mere negligence.
731 N.E.2d at 971. In Gleason, the appellate court merely ruled
that the factual evidence established that the defendant village
and paramedics had acted with no more than simple negligence.
Gleason, 565 N.E.2d at 684.
To summarize, the Illinois Supreme Court has defined willful
and wanton conduct as "a failure, after knowledge of impending
danger, to exercise ordinary care to prevent it" or "a failure to
discover [a] danger through recklessness or carelessness when it
could have been discovered by the exercise of ordinary care."
American National, 735 N.E.2d at 557. The Illinois case law
strongly suggests that a fact-finder can find that a defendant's
conduct is willful and wanton if the defendant fails to follow
applicable guidelines and procedures. American Nat'l,
735 N.E.2d at 557; Kirwan, 811 N.E.2d at 1264-65; Washington,
782 N.E.2d at 853.
B. THERE IS AN ISSUE OF MATERIAL FACT AS TO WHETHER THE
PARAMEDICS' CONDUCT WAS WILLFUL AND WANTON
Plaintiffs argue that their witnesses and evidence can support
a finding that the Algonquin paramedics' actions constituted
willful and wanton conduct. First, contrary to applicable medical
standards, the paramedics refused to follow Dr. Drubka's orders
to immediately intubate Johnson and refused his offer of help.
Next, despite the fact that the paramedics knew Johnson was in extreme respiratory distress, they
failed to intubate her immediately or give her the necessary
drugs to do so. Then, despite the fact that they had labeled the
call a "load and go", the paramedics waited for twelve to
fourteen minutes before leaving the Immediate Care Center parking
lot. Further, during the time that Johnson was in the ambulance,
the paramedics also failed to follow the applicable SOPs
regarding her treatment. Last, the Plaintiffs assert that the
paramedics actions were willful and wanton in attempting the
third intubation because 1) they failed to use Etimodate, as
required by the SOPs when Versed is ineffective; 2) there is no
documented evidence that they checked to make sure the placement
was proper, such as using an EtCO2 monitoring device; and 3) they
failed to recognize that the oxygen tube was inserted into
Johnson's esophagus instead of her trachea.
"Whether specific acts amount to willful and wanton conduct is
ordinarily a question of fact for the jury, and only in an
exceptional case will the issue of willful and wanton misconduct
be taken from the jury's consideration or be ruled on as a
question of law." Prowell v. Loretto Hosp., 791 N.E.2d 1261,
1265 (Ill.App.Ct. 2003). In this case, the Plaintiffs have
raised issues of material fact which, if true, could be found by
the jury to amount to willful and wanton conduct on the part of
the paramedics and therefore summary judgment is not appropriate.
Under the American National standard, this case raises the
question of whether the paramedics failed, after being informed
of an impending danger, to exercise ordinary care to prevent it.
American National, 735 N.E.2d at 557.
1. Dr. Drubka's Order to Intubate and Offer of Assistance For example, Dr. Drubka testified that when the paramedics
arrived he gave them a history of Johnson's medical condition and
told them that she required immediate intubation and offered to
help. Drubka Dep. at 66, 69. He was told by the paramedics that
they were just going to call the resource hospital (St. Joe's)
and get going. Id. Dr. Drubka stepped down from the ambulance
and the paramedics closed the doors. According to Dr. Drubka,
this was at approximately 4:58 p.m. Id. By their own records,
the paramedics did not leave the Immediate Care Center until 5:12
p.m. and Johnson was still not intubated. The Plaintiffs have
offered two expert opinions which both say that a paramedic's
failure to accept a doctor's offer of help and a failure to
follow his medical orders is against the applicable standard of
care. Nagorka Aff. ¶ 5; Baker Aff. at 6.
Such a failure to follow applicable medical standards could
allow a jury to find that the paramedics' actions were willful
and wanton. American Nat'l, 735 N.E.2d at 557; Kirwan,
811 N.E.2d at 1264. As in Kirwan, the paramedics were aware that a
patient who was deprived of oxygen for so long could suffer
irreparable brain damage or even die. Their failure to allow Dr.
Drubka to assist in the intubation, could be considered in
"reckless disregard" of Johnson's well-being. Therefore, whether
Dr. Drubka offered to assist the paramedics and whether he told
them that Johnson needed to be immediately intubated is an issue
of material fact which prevents summary judgment.
2. The Paramedics' Failure to Follow Applicable SOPs
Another issue of fact which, if true, could be found by the
jury to amount to willful and wanton conduct is the assertion
that the Algonquin paramedics failed to follow the applicable SOPs regarding Johnson's treatment. The Plaintiffs
assert that the paramedics did not comply with the SOP for
"Severe Systematic Reaction/Anaphylactic Shock" because they gave
only one round of epinephrine even though the SOP called for
administering epinephrine until the patient's condition improves.
Further, the Plaintiffs assert that there is no evidence that the
paramedics used any of the other pharmacological agents like
Albuterol or Dopamine. Pl. Mot. Exh. 1 ¶ 9.
The Plaintiffs also claim that the paramedics did not follow
the SOP that governs intubation, specifically, the "Conscious
Sedation/Conscious Sedated Intubation" SOP. First, the paramedics
failed to use Etimodate, as required by the SOPs when Versed is
ineffective. Second, they did not check to make sure the
placement was proper, such as using an EtCO2 monitoring device.
Third, they failed to recognize that the oxygen tube was inserted
into Shirley esophagus instead of her trachea.
Under American National, the failure to follow the applicable
SOPs could amount to willful and wanton conduct.
735 N.E.2d at 557. Whether the paramedics did indeed fail to follow the
applicable SOP or whether this failure amounted to willful and
wanton conduct on the part of the paramedics is a question for
For the reasons set forth in this opinion, Algonquin's Motion
for Summary Judgment is DENIED. In addition, Algonquin's Motion
to Strike the Affidavits of Frank W. Nagorka, and Dr. Frank J.
Baker II is DENIED without prejudice. SO ORDERED.