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Abruzzo v. City of Park Ridge

Court of Appeals of Illinois, First District, Fourth Division

December 19, 2013

JO ANN ABRUZZO, Independent Administrator of the Estate of Joseph Furio, Deceased, Plaintiff-Appellee,
v.
THE CITY OF PARK RIDGE, Defendant-Appellant.

Held [*]

In an action for wrongful death, survival, and family expenses arising from the death of plaintiff’s son after paramedics from defendant city initially came to plaintiff’s residence in response to a 9-1-1 call and then left, and then a different team was called later and transported the son to a hospital where he was pronounced brain dead, the trial court’s judgment for plaintiff on retrial following a remand from the Illinois Supreme Court was affirmed, since the record showed that plaintiff’s complaint was initially dismissed by the trial court on the ground that defendant was immune under the Tort Immunity Act, the appellate court upheld that decision, but the Illinois Supreme Court reversed that judgment, held that the limited immunity provision of the Emergency Medical Services (EMS) System Act applied and remanded the cause for a new trial, and the judgment for plaintiff at the new trial was upheld by the appellate court, since the evidence, including defendant’s admission that the first paramedics who responded did not provide any services, established that they were guilty of an “omission” in providing services for purposes of the Act and exposed defendant to liability.

Appeal from the Circuit Court of Cook County, No. 09-L-1262; the Hon. Clare McWilliams, Judge, presiding.

Richard A. Devine, Scott M. Seaman, and Jason R. Schulze, all of Meckler Bulger Tilson Marick & Pearson LLP, of Chicago, and Jay S. Judge and Michael E. Kujawa, both of Judge, James & Kujawa, LLC, of Park Ridge, for appellant.

Lisa A. Jensen, of Jensen Law Office, LLC, of Rockford, and Frank DiFranco, of DiFranco & Associates, P.C., of Park Ridge, for appellee.

Edward F. Dutton, of Park District Risk Management Agency, of Lisle, for amicus curiae Illinois Governmental Association of Pools.

Panel PRESIDING JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices Quinn and Lavin concurred in the judgment and opinion.

OPINION

HOWSE PRESIDING JUSTICE

¶ 1 Plaintiff, Jo Ann Abruzzo, as independent administrator of the estate of Joseph Furio, deceased, filed a complaint and first amended complaint for wrongful death, survival, and family expenses against defendant, the City of Park Ridge (Park Ridge or the City). The complaint arose from the City's response to a request for emergency services (9-1-1 call) by decedent's father, Larry Furio, for his son Joseph. The City's paramedics responded to a call at Larry Furio's home at approximately 1 a.m. and left without taking Joseph to the hospital. Joseph had been conscious during the first call. Larry Furio called a second time later that same morning and different paramedics responded. Joseph was unconscious. The paramedics transported Joseph to the hospital. Joseph never regained consciousness, was later pronounced brain dead, and was removed from respirators.

¶ 2 Plaintiff's first amended complaint alleged, in part, that in response to the first 9-1-1 call the paramedics failed to evaluate or assess Joseph and as a proximate result, Joseph sustained injuries resulting in death, and the paramedics behaved with wilful and wanton conduct in failing to transport Joseph, a nonresponsive patient. On April 14, 2006, defendant filed a motion to dismiss. Plaintiff filed a response, and on June 9, 2006, defendant filed its reply brief. The trial court granted the motion and on appeal this court held that the City was immune pursuant to sections 6-105 and 6-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/6-105, 6-106 (West 2004)). Abruzzo v. City of Park Ridge, 374 Ill.App.3d 743, 759 (2007) (Abruzzo I).

¶ 3 Sections 6-105 and 6-106 provide absolute immunity from liability to a local public entity for failure to evaluate, diagnose, or prescribe treatment for an illness or physical condition. Abruzzo v. City of Park Ridge, 231 Ill.2d 324, 329 (2008) (Abruzzo II). Our supreme court reversed this court's judgment that absolute immunity under the Tort Immunity Act applies, holding that the limited immunity provision in the Emergency Medical Services (EMS) System Act (EMS Act) (210 ILCS 50/1 et seq. (West 2008)) governs over sections 6-105 and 6-106 of the Tort Immunity Act. Abruzzo, 231 Ill.2d at 348. Our supreme court found that the EMS Act controlled because it was the more specific and more recent statute. Id. The court interpreted the provision of emergency medical services to include preparatory actions integral to providing emergency treatment and found that assessment and evaluation are integral to providing emergency medical services. Id. at 345. The court held that the immunity provision of the EMS Act applied to the allegations in plaintiff's complaint because "[t]he failure to assess or examine is an 'omission' in providing emergency medical services under our interpretation of the immunity provision [in the EMS Act]." Id. at 345. The court remanded the case to the trial court. Abruzzo, 231 Ill.2d at 348.

¶ 4 This appeal arises from the trial of the matter following remand by our supreme court. Following trial, the jury returned a verdict in favor of plaintiff and awarded damages totaling $5, 187, 500. For the reasons set forth below, we affirm the verdict and judgment.

¶ 5 BACKGROUND

¶ 6 Following remand by our supreme court, the matter proceeded to a trial before a jury on plaintiff's first amended complaint.

¶ 7 Larry Furio, Joseph's father, testified that he picked his son up from his mother's house and took him home at approximately 11:15 p.m. on October 30, 2004. Two weeks earlier, Joseph had finished an inpatient drug rehabilitation program. Sometime after Joseph went to bed, Larry heard a gasping sound from Joseph's room. Larry went to Joseph's room to find Joseph "like blue" and "gasping for breath." He was purple around the mouth and clammy. Joseph made a few more gasping noises and then no sound. Joseph was not breathing. Larry could not wake him so he attempted cardiopulmonary resuscitation (CPR). Joseph still did not waken so Larry dialed 9-1-1 while continuing to attempt CPR. At some point, Joseph was able to say some words but his speech was slurred, he appeared groggy, and his eyes were glassy. Before paramedics arrived, Larry was able to ask Joseph if he had used any drugs and Joseph responded he had not. Paramedics arrived while Larry was still on the phone with the 9-1-1 operator. Larry Furio testified he told paramedics he thought the problem could be asthma and he believes that he told them he had been attempting CPR.

¶ 8 Larry testified that when he entered Joseph's room after paramedics arrived, he shook Joseph and Joseph sat up and asked what those people were doing here. Larry testified he told Joseph he (Larry) had come into his room and Joseph was purple, could not breathe, and Larry could not wake him up. Joseph then said to his father, "dad, it's these pills that I'm taking, they make me tired." Larry testified that one of the paramedics was in the room when Joseph made the statement about the pills. Larry testified that in response, "the paramedic kind of rolled his eyes like with an attitude, like why would you bother calling us, like he was put out." Larry stated someone said words to the effect of "He looks alright I guess." and left. Larry testified that as the paramedics left he made a sarcastic comment that "gosh, I'm sorry I bothered you."

¶ 9 William Peterson was a paramedic employed by defendant on October 31, 2004, and is still so employed. He and paramedic Franzen were dispatched to Larry Furio's home at approximately 1:06 a.m. on the morning of October 31, 2004. Paramedic Peterson testified that he was required to follow the standard operating procedures (SOPs) of the Saint Francis EMS system. Those SOPs include a general patient assessment. Peterson testified that according to the general assessment SOP, as part of the primary survey he was required to assess circulation by comparing pulses and checking capillary refill. Peterson did not check Joseph's pulses or his capillary refill. Plaintiff impeached Peterson with his deposition testimony in which Peterson stated that if Joseph's father indicated Joseph was having difficulty breathing and had a history of asthma, he would be required to follow the SOP for asthma. Peterson testified that Joseph's father never stated that his son was having trouble breathing. But he did testify that when the call was dispatched, the call was for a 15-year-old with difficulty breathing.

¶ 10 Peterson denied that Joseph's father told the paramedics that his son was unconscious and not breathing, and he denied later telling his battalion chief that was what Joseph's father said. At trial, Peterson testified that Joseph's father told them it was a false alarm and that their services were not needed. Peterson testified at trial that he entered the home and walked down a hallway toward Joseph's bedroom without having any conversation with his father on the way, and he never entered the bedroom. Joseph's father entered the bedroom with Franzen and a police officer. Peterson could see Joseph in the bedroom sitting up on his arms in the bed. Joseph said something similar to "Why are these people here?" and "I just want to go back to sleep." Peterson stayed approximately 10 seconds before leaving to meet a fire engine that also responded to the call. He never returned.

¶ 11 Peterson testified that under the SOP a primary survey of airway, breathing, and circulation (ABCs) is made and, based on those, he is to determine how much further to go within his assessment of the patient. Peterson testified he did a visual assessment while looking at Joseph, but did not do a hands-on assessment. Peterson could determine that Joseph had a patent airway and was breathing from the fact that he was sitting up and talking and based on the color of his skin, which is an indication that oxygen is perfusing through his body. Peterson has seen people's skin that was discolored from a lack of oxygen. The lips start to turn blue, the skin will become pale and, depending on the severity, the skin may take on an ashen, grayish-blue color. Peterson could see that Joseph's skin appeared to be a normal color. Peterson also testified that circulation can be checked visually without checking the subject's capillary refill. A capillary refill test involves squeezing the nail bed of a finger and counting the time required for color to return to the nail bed. Peterson testified he did not believe it was necessary to do a capillary refill test on Joseph because he was breathing and had the proper skin color. Peterson testified that he would only compare pulses to check circulation if he were working farther down into the secondary survey, but it is not something that is done if on visual examination circulation appears normal. The next step in the primary survey is to check for disability, which is to determine the patient's level of alertness. Peterson testified Joseph appeared to be alert based on his knowing that there were other people in the room and his question to his father as to who the people in his room were and why they were there. The SOP for primary assessment instructs paramedics to determine patient status, which Peterson testified means to determine whether in fact there is a patient. Peterson testified that from what he observed he determined they actually did not have a patient, at which point he would not continue to do the secondary survey. Peterson testified:

"I believe that we didn't have a patient. The father, whatever he thought, when he made the phone call, when we got there he stated that he overreacted to whatever that situation was. He said the boy was fine. The boy said he was fine, asking what these people were doing here.

We made a determination that we did not have a patient to treat any further."

¶ 12 Peterson received no information regarding any attempt at CPR on Joseph, no information regarding suspected drug use, and no information that Larry Furio had trouble waking his son. If Peterson were on a call and was aware that CPR had been performed on the patient, he would further evaluate the patient and find out why CPR was performed. If he was aware of a history of drug abuse, if there was a question as to whether the patient was conscious, or if the patient was having difficulty breathing, it would affect the assessment that he does. Also, if there was information about the patient taking medications or a question of how much the patient took, or if the patient took the wrong medication, that information would affect what Peterson did. Peterson testified he had no information to indicate that Joseph was on medications on October 31, 2004.

¶ 13 Peterson did not ask Joseph's father what he had done for his son before paramedics arrived, if Joseph was taking medication, had a history of asthma, or was on drugs. Peterson did not ask Joseph if he was having difficulty breathing because he did not think it was necessary. Peterson did not feel there were any questions to ask based on visually assessing Joseph, what his father said to the paramedics, and what Joseph said. Peterson did not check Joseph's pulse, blood pressure, or temperature. He did not place a pulse oximeter on Joseph's finger to determine if Joseph was getting enough oxygen.

¶ 14 Peterson testified he is not required to automatically follow a certain protocol based on a dispatch. Instead, he is to react and treat the person based on what he sees and how that person presents to him. He is not supposed to initiate treatment for something he does not see when he is there. Peterson did not see evidence that there was any difficulty breathing. Peterson testified that if a father informs him that his son is having difficulty breathing or has a history of asthma, then under the asthma SOP Peterson would be required to do a pulse oximetry reading, assess and record vital signs and breath sounds, and transport the child. Peterson did none of those things for Joseph.

¶ 15 Howard Franzen testified that he was working for defendant as a firefighter/paramedic on October 31, 2004. He believes that he was the paramedic in charge for the call to Larry Furio's home. He was required to follow the Saint Francis standard operating procedures. The event that lead to the 9-1-1 call was either not breathing or difficulty breathing. The call came to him as a child unconscious and "sounds like asthma." Franzen remembered that Joseph's father did not say anything when they arrived at his home. Larry Furio led Franzen to Joseph's bedroom, the lights came on, and Joseph sat up in bed. Franzen testified Larry Furio asked Joseph if he was okay and Joseph responded yes. Franzen observed the verbal exchange between Larry and Joseph. Larry Furio told his son he thought Joseph was having an asthma attack. Franzen testified Joseph denied that he was having an asthma attack.

¶ 16 Franzen asked Joseph if he was okay and Joseph said "I want to go back to sleep." Joseph also said something similar to "Yes, I'm fine." Franzen did not ask Joseph any other questions. Larry Furio said something to Franzen similar to "see there, he's fine." Franzen recalled that once it was established that Joseph was okay Franzen told everyone they were leaving. Larry Furio said that he was sorry for the false call, and Franzen responded that if he needed 9-1-1 or if he was in doubt to call them back.

¶ 17 Franzen testified that after "looking at it over time" he feels he did do a primary assessment based on his observations. He did not check the oxygen level of Joseph's blood or check Joseph's vital signs. Franzen testified he assessed Joseph's airway, breathing, and alertness based on the fact that Joseph was talking with his father and answering questions appropriately. Franzen testified he assessed Joseph's circulation by observing the color tone of his skin and that Joseph appeared to be perfusing normally. Franzen testified that the SOP recommends comparing pulses to do a circulation assessment. Franzen testified that he also observed Joseph's pupils and they did not raise any concerns. Franzen observed Joseph to be alert because he responded to stimuli of questions and the light coming on in his room, and Joseph was responsive. Franzen testified that he assessed Joseph to be alert to person, place, and time. Franzen testified that by the end of the 1 a.m. call, his final determination was that Joseph "was somebody in–that was sleeping and was awoken by his father and there was no patient."

¶ 18 Franzen testified to an earlier statement in which he said that Larry Furio said in his presence that he thought his son was having trouble breathing or was not breathing. Franzen testified that if Joseph had actually not been breathing, that would not be a false alarm. Franzen did not ask Larry Furio if Joseph was unresponsive prior to their arrival or what led him to believe Joseph was unresponsive or not breathing. Franzen asked neither of them about an asthma attack and did not know Larry Furio had attempted CPR. Franzen never received any information regarding illegal drug use or CPR being performed before paramedics arrived.

¶ 19 On the date in question there was an SOP for asthma that he would be required to follow if he had information that the patient was not breathing and had asthma. When he arrived at Larry Furio's home, nothing indicated to Franzen that he should begin following the asthma protocol because Joseph's breathing did not appear to be stressed and his color seemed appropriate.

¶ 20 Franzen testified that the SOPs required a primary survey which includes checking circulation. A secondary survey requires a Glasgow Coma Scale, which requires a systolic blood pressure. The primary survey, according to Franzen, is to determine if you have a patient or not. When the primary survey is done, either there is not a patient or there is more to be assessed. The secondary survey is only done under certain circumstances. Franzen testified he did a visual primary assessment.

¶ 21 Plaintiff called Dr. David Tan as an expert witness. Dr. Tan testified to a reasonable degree of medical certainty that Joseph was suffering from an opiate toxidrome from drug ingestion at the time of the first 9-1-1 call. An opiate toxidrome refers to a group of findings, signs, or symptoms that together suggest a given diagnosis. Dr. Tan testified that if you put several signs and symptoms together, it suggests an overdose of some kind, typically of the opiate family. He also testified that "how the patient presents can often be predicated upon how much of the substance was used, when it was used, how much tolerance they have." Dr. Tan testified to the signs that Joseph was suffering from an overdose when his father dialed 9-1-1 at approximately 1 a.m. Plaintiff asked Dr. Tan's opinion as to "whether[, ] if the paramedics had done an initial assessment[, ] that would have revealed signs, symptoms, and a history of a potentially life-threatening situation; namely, opiate intoxication." Dr. Tan opined that had the paramedics exercised "even a basic management of that scene, " they would have gathered information that "would have alerted the paramedic[s] to the fact that there was a medical emergency here that require[d] transport to a hospital." Dr. Tan opined that regardless of why Joseph was transported to the hospital, if he had been transported at 1:06 a.m., Joseph would have survived.

¶ 22 Dr. Tan stated his opinion to a reasonable degree of medical certainty as to what caused Joseph's death. Dr. Tan testified: "DR. TAN: More likely than not, Mr. Furio resuscitated [Joseph] enough to the point where he actually was awake when professional rescuers arrived. After they left, however, at some point in time from the time they left to the next morning when he was found dead, essentially, he probably went back into that–lapsed into an opiate-induced coma."

¶ 23 On cross-examination, Dr. Tan confirmed his opinion that Joseph had ingested opiates before the 1 a.m. 9-1-1 call. When asked whether he knew at what time Joseph ingested any opiates, Dr. Tan responded as follows:

"DR. TAN: Well, what I know is that at the time of his initial presentation, again, based on the 9-1-1 call and what happened, that at 1:06, I can say that he most likely had opiates on board at the time.
Q. [Defense attorney:] You do not know at what time he ingested those opiates?
A. No, I do not know exactly what time he took them."

¶ 24 Defendant's counsel asked Dr. Tan about the effect of taking opiates and whether other signs, such as stumbling from his father's car when he picked Joseph up, would be present if Joseph had taken sufficient opiates to stop his breathing at 1:06 a.m. Dr. Tan testified "for example, if he took a short-acting opiate, I don't know that he would last until 1:06, versus a much longer-term opiate, it may have taken an hour, hour and a half for his clinical symptoms to show itself again." Later in defense counsel's cross-examination, the following exchange occurred:

"Q. [Defense attorney:] So you're not able to pinpoint whether between the 1:06 call and the 9:00 a.m. call whether Joe had ingested any additional drugs?
A. [Dr. Tan:] I have no evidence to say either way that he took more drugs after 1:06 a.m. I just know that at the time of the 9-1-1 call at 1:00 a.m., he ...

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