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 ...