2020 IL App (1st) 191812
Ill. App. Ct.2020Background
- On Oct. 12, 2014 Amanda Gary suffered a severe asthma attack; EMS responded and recorded an initial pulse-ox of 54%. She lost consciousness and was transported to the ambulance.
- Paramedics administered assisted ventilations, established an intraosseous line, gave Versed, and Pierce intubated Amanda about 12–14 minutes after loss of consciousness.
- Paramedics relied on visualization of the tube passing the vocal cords, diminished lung sounds, absence of abdominal sounds, chest rise, and a positive CO2 detector; they did not record post-intubation pulse-ox readings.
- At hospital arrival Amanda had no pulse; ER staff found the endotracheal tube in the esophagus, reintubated her, and she later died after brain injury from hypoxia.
- Plaintiff (administrator of estate) sued for wrongful death, alleging willful and wanton misconduct; City moved for summary judgment under the EMS Act immunity; trial court granted summary judgment and excluded plaintiff’s pre-discovery expert affidavit.
- The appellate court affirmed: although a misintubation and lack of pulse-ox monitoring could be negligence, the record showed extensive, reasonable emergency efforts and no evidence of utter indifference required for willful and wanton misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EMS Act immunity bars suit absent willful and wanton conduct | Gary: alleged paramedics acted willfully and wantonly by delaying intubation, misplacing tube, and not monitoring SpO2 | City: EMS Act immunizes good-faith emergency care; only willful and wanton conduct removes immunity | Court: EMS Act bars suit unless willful and wanton proven; affirmed immunity here |
| Whether evidence created a triable issue of willful and wanton misconduct (misintubation + no post-intubation pulse-ox) | Gary: incorrect tube placement and failure to obtain post-intubation pulse-ox readings show conscious disregard | City: paramedics used multiple accepted checks (visualization, lung/abdominal sounds, CO2, chest rise) under chaotic emergency conditions | Held: Even if misintubation occurred, facts show extensive, reasonable efforts; errors may be negligent but not willful and wanton |
| Whether City’s training (de-emphasis on pulse oximetry) constitutes willful/wanton policy | Gary: training discouraged reliance on pulse ox and thus endangered patients | City: training followed accepted protocols; treating physicians confirmed limits of pulse oximetry | Held: No evidence City knew training imperiled patients or recklessly ignored the danger; training not willful and wanton |
| Admissibility/weight of plaintiff’s 2-622 expert affidavit (Dr. Ortinau) | Gary: affidavit opined deviations from standard of care and causation | City: affidavit was formed pre-discovery and not reliable after full record; trial court should exclude or give it little weight | Held: Trial court declined to consider the affidavit; appellate disposition does not rely on it and affirms summary judgment for City |
Key Cases Cited
- American Nat'l Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274 (2000) (failure to locate/treat a 911 caller can present willful and wanton claim)
- Bowden v. Cary Fire Protection Dist., 304 Ill. App. 3d 274 (1999) (extensive emergency care inconsistent with willful and wanton misconduct)
- Fagocki v. Algonquin/Lake-In-The-Hills Fire Prot. Dist., 496 F.3d 623 (7th Cir. 2007) (incorrect intubation or failure to detect it may be negligent but not willful and wanton absent aggravating circumstances)
- Williams v. Manchester, 228 Ill. 2d 404 (2008) (summary judgment reviewed de novo)
- Meck v. Paramedic Servs. of Ill., 296 Ill. App. 3d 720 (1998) (analysis of proximate causation and survival-chance issues)
- Prowell v. Loretto Hosp., 339 Ill. App. 3d 817 (2003) (willful and wanton liability where known hazard and inattentive conduct caused injury)