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Estate of Patrick Burns, Deceased, By Richard Burns, Executor v. Neil Williamson

July 12, 2012

ESTATE OF PATRICK BURNS, DECEASED, BY RICHARD BURNS, EXECUTOR, PLAINTIFF,
v.
NEIL WILLIAMSON, AS SHERIFF OF SANGAMON COUNTY, IN HIS OFFICIAL CAPACITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge.

E-FILED Thursday, 12 July, 2012 03:17:45 PM Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on the Motion to Dismiss (d/e 66) filed by Defendants LifeStar Ambulance Service, Inc. (LifeStar), Jamie Rompot, and Barbara Guffey (collectively referred to as the Ambulance Defendants). The Ambulance Defendants assert that the Counts against them should be dismissed because Plaintiff failed to file a sufficient report pursuant to 735 ILCS 5/2-622(a)(1). For the reasons that follow, this Court finds the report sufficient and the Motion is DENIED.

I. FACTS

Plaintiff originally brought this lawsuit, pursuant to 42 U.S.C. § 1983 and state law, against Sangamon County and several Sheriff's deputies alleging cruel and unusual treatment of and excessive force against decedent Patrick Burns. In February 2012, Plaintiff filed a Second Amended Complaint which named as defendants, for the first time, the Ambulance Defendants. The Counts against the Ambulance Defendants alleged state law claims for wrongful death. See Sec. Am. Compl. Count V (LifeStar); Count VI (Rompot); Count VII (Guffey) (d/e 47).

Specifically, Plaintiff alleged that on January 23, 2010, LifeStar received a request for an ambulance. Sec. Am. Compl. ¶¶ 6282, 102. LifeStar dispatched an ambulance with crew members Rompot and Guffey, both of whom were emergency medical technicians (EMT). Sec. Am. Compl. ¶¶ 59, 60, 62, 79, 80, 82, 99, 100, 102. The LifeStar ambulance crew encountered decedent Burns, "who was believed to have suffered an adverse drug reaction, and to have been roughly subdued by police and to have suffered greater than 15 taser shocks." Sec. Am. Compl. ¶¶ 63, 83, 103. Burns was handcuffed with his hands and feet behind him (hogtied). Sec. Am. Compl. ¶¶ 64, 84, 104. Plaintiff alleged that "[w]hen Defendant Deputies finally allowed ambulance personnel to tend to the injuries Patrick Burns sustained in the incident . . . they would not permit the ambulance personnel to place Patrick Burns in the proper restraints for transport in the ambulance and instead kept Patrick Burns 'hogtied' and in the prone position." Sec. Am. Compl. ¶ 10.

Plaintiff further alleged that the ambulance crew placed Burns in the ambulance and transported him to the emergency room at "Springfield Memorial Hospital." Sec. Am. Compl. ¶ 65, 66, 85, 86, 105, 106. "Defendant Deputies Osmer and Roderick rode with Patrick Burns in the ambulance on the way to the hospital and refused to allow ambulance personnel to properly treat Patrick Burns and properly position him to maintain his airway and monitor his vitals." Sec. Am. Compl. ¶ 20.

At 06:46, the ambulance arrived at the emergency room. See Sec. Am. Compl. ¶¶ 68, 88, 108. "Burns was conscious, active, and moving at that time, but was noted to have become 'subdued' and his eyes were slow to react while being wheeled into the emergency room." Id. At 06:53, Burns was first seen by emergency room personnel, "who found him asystolic and not breathing." Sec. Am. Compl. ¶¶ 69, 89, 109. At 07:59, "Springfield Memorial" accepted responsibility for Burns (sometimes referred to as the hand-off of the patient). Sec. Am. Compl. ¶¶ 70, 90, 110. Burns could not be revived. Sec. Am. Compl. ¶ 21. He remained on life support and died in the hospital on January 28, 2010. Sec. Am. Compl. ¶ 22.

Plaintiff alleged that the Ambulance Defendants committed the following acts or omissions which were wanton, were wilful, or exhibited a reckless disregard for the safety of others: (a) failing to adequately notify the emergency room personnel of the condition of the patient and/or failing to indicate the need to meet the patient promptly upon arrival; (b) failing to properly or adequately monitor Burns; (c) failing to monitor or treat Burns when he became subdued and his eyes became slow to react; (d) placing or transporting Burns on his belly in a hogtied position; (e) placing or transporting Burns on his belly in a hogtied position when the EMTs knew of Burns' recent trauma and likely drug use; (f) allowing Burns to remain on his belly in a hogtied position after he became subdued and his eyes became slow to react; (g) allowing Burns to remain on his belly in a hogtied position for approximately seven minutes after entering the emergency department; (h) allowing Burns to remain on his belly in a hogtied position for approximately seven minutes when it became apparent that the emergency room personnel could not or did not accept the hand-off of the patient for that period; (i) failing to adequately monitor or treat Burns in the approximately seven minutes before he was seen by emergency room personnel; (j) failing to adequately notify the emergency personnel of the decline of the condition of Burns, including that he stopped breathing, his heart stopped beating, and/or that he was being kept hogtied on his belly. Sec. Am. Compl. ¶¶ 71, 91, 111 (a) through (j).

In addition, Plaintiff alleged that LifeStar (k) failed to adequately train or supervise its ambulance crews to meet the expected needs of emergency care and/or the state or national standards for such personnel; and (l) failed to properly provide trained or certified paramedics for its ambulance services. Sec. Am. Compl. ¶ 71 (k),(l).

Plaintiff's counsel filed for each Ambulance Defendant an affidavit, pursuant to 735 ILCS 5/2-622, asserting that counsel consulted and reviewed the facts of the case with a health care professional who determined there is a reasonable and meritorious cause for filing the action. See Affidavits (d/e 46-2, 46-3, 46-4). Plaintiff also attached a report (d/e 46-5) but later filed a supplemental report (d/e 69-1). That supplemental report, authored by John F. Conlon, DO, CPE, MBA, provides as follows:

Again, I am a physician licensed to practice medicine in DE, NJ and PA, and I am currently in the practice of emergency medicine. I have supervised emergency care for 12 years, and am familiar with the type of patient and emergency presented in this case. I have reviewed the records concerning care provided to Patrick Burns, including the ambulance records, coroner report, statement of EMTs, and the medical records of Springfield Memorial Hospital regarding the transport, arrival, intake, and initial care to this patient. There is a known danger when a medical care provider is dealing with a patient suspected of extreme drug reaction, and after being traumatically subdued and restrained in a "hog-tied" manner, of the possibility of death or serious injury due to respiratory distress or arrest when the patient is left face down. The standard of care requires that the responsible care provider keep the patient on their side or otherwise off the belly, and/or carefully monitor their respiration and mental condition. Although the patient was apparently placed on his side in the ambulance, this was apparently not done after arrival at the hospital. This is well established, and keeping a patient in this condition on his belly without monitoring was unreasonable and would be expected to have the result it did. After the review, it is my opinion that until a formal hand off from the EMTs to the ER occurred (a verbal report from EMTs to staff and the patient being moved to a hospital stretcher), the responsibility for this patient remained with the EMTs. From the record, it appears the first time the ER staff encountered the patient, he was asystolic and not breathing. Therefore, based on the record I currently have, I have the opinion that there is a reasonably and meritorious basis to proceed with a suit against the EMT or ambulance personnel who are identified in the records as Jamie Rompot and Barbara Guffey, but otherwise whoever had the patient in their control while he was hog-tied and on his belly and stopped breathing. I reserve the right to alter any of these opinions if I am provided additional or contradictory information in the future.

II. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). For purposes of the motion, this Court must accept as true all well-pleaded allegations contained in the complaint and draw all inferences in the light most favorable to the non-moving party. Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 533 (7th Cir. 2011). To avoid dismissal for failure to state a claim, the complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). That statement must be sufficient to provide the defendant ...


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