Fagocki Ex Rel. Johnson v. Algonquin/Lake-In-The-Hills Fire Protection District , 496 F.3d 623 ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1685, 06-1522
EDWARD FAGOCKI, as administrator of
the estate of Shirley Johnson, deceased,
Plaintiff-Appellee/
Cross-Appellant,
v.
ALGONQUIN/LAKE-IN-THE-HILLS FIRE
PROTECTION DISTRICT,
Defendant-Appellant/
Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 6015—Morton Denlow, Magistrate Judge.
____________
ARGUED JUNE 8, 2007—DECIDED JULY 13, 2007
____________
Before POSNER, FLAUM, and MANION, Circuit Judges.
POSNER, Circuit Judge. This is a suit for medical malprac-
tice, governed, so far as relates to the appeals, by Illinois
law. A jury awarded the plaintiff $1 million. Both parties
appeal—the defendant arguing that it was entitled to
judgment as a matter of law, the plaintiff arguing that he
2 Nos. 06-1685, 06-1522
was entitled to a larger damages award. The plaintiff’s
appeal is academic on the view we take of the case.
Shirley Johnson, a woman in her fifties weighing 300
pounds, had a severe allergic reaction to peanuts while
eating at a Chinese restaurant. Her husband drove her to
the nearby Provena Immediate Care Center. (“Immediate
care centers,” also called “walk-in clinics,” provide non-
emergency or “minor emergency” services to patients on
a walk-in basis. WebMD, www.webmd.com/a-to-z-
guides/Better-Care-at-Lower-Costs-Do-I-Need-to-Go-to-
the-Emergency-Room (visited June 12, 2007).) When they
arrived, at about 4:53 p.m., a nurse from the center saw
that Mrs. Johnson, slumped in the passenger seat of the
car and already comatose, was having serious difficulty
breathing and her skin was turning blue. Walter Drubka,
a physician at the center, was summoned. He immedi-
ately diagnosed anaphylactic shock and instructed his
staff to call 911, inject Johnson with epinephrine (Johnson
did not have an epipen with her—a syringe loaded with
epinephrine that persons with serious food allergies are
supposed to have with them at all times), and fetch him his
equipment for treating a patient whose airway is blocked,
a common consequence of anaphylactic shock. The equip-
ment included an “Ambu bag,” which is placed over the
patient’s face and forces oxygen into her lungs, and an
endotracheal tube that is put through the patient’s throat
into her trachea, a procedure called intubation.
A team of five paramedics employed by the defendant
came on the scene at 4:56, three minutes after the Johnsons
had arrived at the immediate-care center. With some
difficulty because of Mrs. Johnson’s weight they removed
her from the car and carried her to the ambulance (which
took two minutes), meanwhile being briefed by Drubka,
Nos. 06-1685, 06-1522 3
who was using the Ambu bag on her without success.
“Standing Medical Orders” (SMOs) issued pursuant to
state health regulations for the guidance of paramedics and
others who provide emergency medical treatment autho-
rize a physician at the scene to take control of the patient.
Drubka told the paramedics that Johnson had to be
intubated immediately, and he offered to do so, but they
declined his offer and said “we’ll take care of it from here.”
(They denied at the trial that he made such an offer, but
we must take the facts as favorably to the plaintiff as the
record permits.) One of them, Corneliuson, had per-
formed numerous intubations—at least twice as many as
Drubka—and more recently than Drubka, who had per-
formed his last one a year and a half earlier and who
unlike Corneliuson was unaccustomed to working in the
crowded confines of an ambulance.
Other paramedics in the group went to work administer-
ing (intravenously) to Mrs. Johnson a medicine like epi-
nephrine called Benadryl. They did not try to administer
epinephrine itself even though the Standing Medical
Orders call for it to be administered first, in a case of
anaphylactic shock, and Benadryl second.
Corneliuson could not intubate Johnson because John-
son’s jaws were clenched shut. The paramedics adminis-
tered intravenously a drug called Versed to loosen her
jaws. The record does not indicate when they had clenched.
Dr. Drubka had managed to insert an “oral airway”—a
device for preventing the tongue from blocking the pa-
tient’s airway—into Mrs. Johnson’s mouth while she was
slumped in her car, so her jaws could not have been
clenched then. As Johnson was being transferred from car
to ambulance, she fell off the gurney being used to carry
her, owing to her weight, and the airway fell out. The
4 Nos. 06-1685, 06-1522
paramedics put her into the ambulance and one of them
inserted another oral airway into her mouth. That was at
5:02 and it is at some unknown point after that that her
jaws clenched, preventing Corneliuson from intubating her
until the Versed took effect.
The fact of clenching is critical and so we note that the
plaintiff does not take issue with the statement in the
defendant’s brief (filed first) that “after [Ambu] bagging
Mrs. Johnson, Corneliuson attempted to open her mouth
to intubate, but found her mouth was clenched shut.” The
plaintiff’s brief states that “Versed was administered to
Shirley Johnson because her jaw muscles needed to be
relaxed.” Had Johnson’s jaws not been clenched, there
would have been no reason to give her Versed. The
plaintiff does not argue that the paramedics gave it to her
unnecessarily, and this implies that her jaws were indeed
clenched. In any event, “with immaterial exceptions,
judges do not interrogate factual assertions made by a
party unless his opponent contests them.” Herzog v. Village
of Winnetka, 309 F.3d 1041, 1042 (7th Cir. 2002).
The Standing Medical Orders to which we referred
state that if the drug first used to sedate the patient so
that she can be intubated doesn’t work within a minute,
another drug, Etomidate, should be administered forth-
with. Instead of doing that the paramedics gave Mrs.
Johnson further doses of Versed. With the ambulance now
moving because the paramedics were eager to get Johnson
to a hospital emergency room, a second attempt at
intubation failed, but a third succeeded—or at least the
paramedics thought it had succeeded—at approximately
5:22.
The ambulance arrived at the emergency room some
three minutes later and thus about 29 minutes after the
Nos. 06-1685, 06-1522 5
paramedics had first arrived at the immediate care center.
The staff of the hospital emergency room quickly discov-
ered that the endotracheal tube was in Johnson’s esopha-
gus rather than her trachea. With some difficulty a doctor
re-intubated Johnson properly. But by this time, and
possibly a good deal earlier, she had suffered severe, ir-
reversible brain damage precipitating her into a vegeta-
tive state in which she remained until she was pronounced
dead some two and a half years later. Her medical ex-
penses exceeded $1 million. The estate did not sue the
Chinese restaurant (though Mrs. Johnson had before
going there to eat asked the restaurant’s staff whether its
food contained peanuts and had been told it did not), but
did sue Provena, the owner of both the hospital and the
immediate care center, and Dr. Drubka, along with the
paramedic service. The jury exonerated all but the last.
(Ironically, Provena, though it was a defendant, is the
most likely beneficiary of the verdict. The Johnsons were
not well to do and in all likelihood could not have paid
the huge hospital bill.)
Illinois’s Emergency Medical Services Systems Act
provides that a licensed emergency medical services
provider, such as the defendant paramedic service,
“who in good faith provides emergency . . . medical ser-
vices . . . in the normal course of conducting their activities,
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 . . . constitute willful and wanton
misconduct.” 210 ILCS 50/3.150(a). The purpose of thus
exempting emergency medical providers from liability for
mere negligence is “to encourage emergency response by
trained medical personnel without risk of malpractice
liability for every bad outcome or unfortunate occurrence.
6 Nos. 06-1685, 06-1522
Emergency situations are often fraught with tension,
confusion, and as here, difficult physical locations for
giving medical care. Emergency personnel must not be
afraid to do whatever they can under less than ideal
circumstances.” Gleason v. Village of Peoria Heights, 565
N.E.2d 682, 684 (Ill. App. 1990); see also Bowden v. Cary Fire
Protection District, 710 N.E.2d 548, 552-53 (Ill. App. 1999);
Brock v. Anderson Road Ass’n, 677 N.E.2d 985, 993 (Ill. App.
1997).
At common law, rescuers were fully liable for any
negligence committed by them in the course of the rescue.
Nelson v. Union Wire Rope Corp., 199 N.E.2d 769, 773-74
(Ill. 1964); Jackson v. City of Joliet, 715 F.2d 1200, 1202 (7th
Cir. 1983) (Illinois law) (“if you do begin to rescue some-
one you must complete the rescue in a nonnegligent
fashion even though you had no duty of rescue in the
first place”). This made sense when the intervention of an
incompetent worsened the patient’s condition or precluded
intervention by a competent rescuer. Cuyler v. United
States, 362 F.3d 949, 953-54 (7th Cir. 2004); Stockberger v.
United States, 332 F.3d 479, 481 (7th Cir. 2003). But it had a
tendency (as the Illinois cases emphasize) to deter even
competent rescuers from volunteering their services, since
if the rescue failed they might face a lawsuit. Id.; Jennings v.
Southwood, 521 N.W.2d 230, 234 (Mich. 1994). The problem
is especially acute if, as in a case such as this, the rescuer
cannot seek restitution for the benefit conferred by a
successful rescue. Nevertheless if the negligence system
operated with a zero error rate, and if a successful defen-
dant could recoup his attorney’s fees, the rescuer would
have no fear about having to defend against such a suit.
But these conditions are not satisfied. Judges, jurors, and
lawyers make mistakes and litigants in ordinary civil
Nos. 06-1685, 06-1522 7
litigation bear their litigation expenses even when they
win. In addition, an employer is liable, by virtue of the
doctrine of respondeat superior, for the negligent acts of an
employee even if there was no way the employer could
have prevented them.
So Illinois has decided to restrike the balance by exempt-
ing licensed providers of emergency medical treatment
from liability for negligence. They remain liable if they are
“willful and wanton,” but what does that doublet mean?
The definitions in the Illinois cases are not very helpful, in
part because general statements often make a poor match
with specific facts and in part because the definitions are
not uniform. In one case we read that “willful and wanton
misconduct approaches the degree of moral blame attached
to intentional harm, since the defendant deliberately
inflicts a highly unreasonable risk of harm upon others in
conscious disregard of it.” Burke v. 12 Rothschild’s Liquor
Mart, Inc., 593 N.E.2d 522, 530-31 (Ill. 1992); see also
American National Bank & Trust Co. v. City of Chicago, 735
N.E.2d 551, 557 (Ill. 2000); Lynch v. Board of Education, 412
N.E.2d 447, 457 (Ill. 1980). Similarly, Pfister v. Shusta, 657
N.E.2d 1013, 1016 (Ill. 1995), defines “willful and wanton”
as exhibiting “an utter indifference to or conscious disre-
gard for” safety. Yet in another case we find both language
similar to the above and statements that “willful and
wanton” may be synonymous with “gross negligence” and
that “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.” Ziarko v. Soo Line R.R., 641 N.E.2d 402, 406
(Ill. 1994); see also Kirwan v. Lincolnshire-Riverwoods Fire
Protection District, 811 N.E.2d 1259, 1264-65 (Ill. App. 2004).
8 Nos. 06-1685, 06-1522
We get only a little more guidance from cases in which
paramedics are accused of willful and wanton miscon-
duct. Two nearly identical failed-intubation cases exonerat-
ing the paramedics—Brock and Bowden, cited earlier—quote
the high threshold for liability announced in the Pfister
case. In three other cases, the paramedics lost. In American
National Bank & Trust Co. v. City of Chicago, supra, they
had responded to a 911 call by a woman who told the 911
operator that she was having an asthmatic attack and
thought she was dying. The paramedics arrived at the
woman’s apartment, knocked on the door, heard nothing,
and left. The door was unlocked, but they had not bothered
to turn the doorknob. She died. In Prowell v. Legretto
Hospital, 791 N.E.2d 1261, 1262 (Ill. App. 2003), summary
judgment for the defendant was reversed because of
evidence that the paramedics “knew that [the plaintiff’s
decedent, killed when the stretcher she was on collapsed]
was not secured to the stretcher, that the stretcher’s
legs were not locked, that the [paramedics] placed the
stretcher on a pothole, making it highly unstable, and that,
despite their knowledge of the instability of the stretcher,
[they] did not maintain physical contact with the
stretcher.” In the third case, the one closest to ours, the
court ruled that a complaint was sufficient to state a claim
against paramedics when it alleged that “despite defen-
dants’ knowledge prior to their arrival on the scene that
decedent was having difficulty breathing and her throat
was closing due to an allergic reaction, and despite their
training and standard operating procedures and accepted
emergency practices, they waited between seven and
eight minutes to administer two of the necessary med-
ications and never administered the third. In cases of life-
threatening emergencies, seven or eight minutes can be a
significant delay that could amount to ‘utter indifference’
Nos. 06-1685, 06-1522 9
or ‘conscious disregard’ for decedent’s safety.” Kirwan v.
Lincolnshire-Riverwoods Fire Protection District, supra, 811
N.E.2d at 1264. Of course “could” in the last sentence is
critical, as the only issue was the sufficiency of the plead-
ing.
Our plaintiff’s best evidence is the paramedics’ failure to
detect that the final effort at intubation, which the para-
medics thought successful, had failed. It may not have
failed; instead the endotracheal tube may have become
dislodged while Johnson was being moved from the
ambulance to the hospital emergency room. But there is
some evidence, which the jury was entitled to credit, that
it was inserted incorrectly in the first place, into her
esophagus rather than into her trachea. No one supposes
an incorrect insertion itself, in a moving ambulance,
negligent. Nor is there evidence that Dr. Drubka is a more
competent intubator than paramedic Corneliuson—
indeed, had she stood aside for him to do the intubation
and he had botched it, the plaintiff would be arguing
that she should have ascertained that he had done fewer
intubations than she and none within the last year and a
half or ever in the cramped interior of an ambulance. The
contention by one of the plaintiff’s experts (a contention
abandoned by the plaintiff in this court) that the paramed-
ics should have brought Johnson into the immediate care
center for intubation because it was roomier than the
ambulance and the lighting was better is specious, since
the detour would have significantly delayed getting
Mrs. Johnson to the hospital emergency room.
There are, however, procedures for checking that the
endotracheal tube is in the right place, and so the para-
medics’ failure to detect the misplacement of the tube may
have been negligent. But such a failure would not amount
10 Nos. 06-1685, 06-1522
to willful and wanton misconduct without circumstances
of aggravation. And of that the only evidence is the testi-
mony of one of the plaintiff’s experts that “I could see
nowhere in their record that they confirmed the tube
placement by chest rise, [or] by that little device you could
put on the end of the tube that changes colors if you are in
the proper place in the trachea.” Given the pressure of time
under which the paramedics were laboring, the failure to
have made a written notation of having checked for the
correct placement of the tube is too thin to justify an
inference of willful and wanton misconduct.
And suppose the paramedics had detected the incorrect
placement (if the tube was placed incorrectly, as we’re
assuming). There is no evidence they would have had an
easier time successfully re-intubating than the emergency-
room physician, so at best Johnson would have been
intubated a minute or two before she was intubated in the
emergency room. There is no evidence that that minute or
two would have prevented her descent into a vegetative
state.
The plaintiff insists that a defendant can be liable for
aggravating a preexisting injury, and that of course is true.
But the defendant can be liable only for the aggravation,
and not for the consequences of the original injury—the
consequences the victim would have suffered even if the
defendant had committed no tort. Tedeschi v. Burlington
Northern R.R. Co., 668 N.E.2d 138, 140-41 (Ill. App. 1996);
Gruidl v. Schell, 519 N.E.2d 963, 967 (Ill. App. 1988); Reising
v. United States, 60 F.3d 1241, 1244 (7th Cir. 1995) (Illinois
law). If willful and wanton misconduct occurred only
after Mrs. Johnson had lapsed into an irrevocable vegeta-
tive state, she has no claim for damages.
Nos. 06-1685, 06-1522 11
Passing to another of the plaintiff’s contentions vulnera-
ble to the point just made, we find no evidence
that administering epenephrine at the first opportunity
would have made a difference to Johnson’s breathing,
for by then anaphylactic shock had shut down her
airway. And as for the failure to administer Etomidate
after the first dose of Versed failed to unlock her jaws,
this could not even be negligence because the only rele-
vant difference between the two drugs—according to the
plaintiff’s own expert—is that Etomidate causes uncon-
sciousness while Versed does not, and she was already
unconscious. The purpose of the Versed was to cause her
jaws to unclench—and was accomplished.
The plaintiff might have been able to mount a some-
what stronger argument for liability than he did. Mrs.
Johnson’s jaws could not have clenched until sometime
after 5:02, when the second airway was placed in her
mouth. That was four minutes after the paramedics had
placed her in the ambulance. It could be argued that it
was negligent of them or worse not to attempt to intubate
her within that period. But the plaintiff does not make
this argument. Instead he presses the factually unsup-
portable claim that the paramedics were willful and
wanton in failing to try to intubate her until 13 minutes
had elapsed since their arrival. Apart from the two
minutes it took to place her in the ambulance, the plaintiff
concedes that during some part of the remaining 11
minutes Mrs. Johnson’s jaws were clenched and intuba-
tion therefore impossible. So no reasonable jury could
have found that the paramedics failed culpably for 11
minutes to try to intubate her.
It is not proper for an appellate court in an adversary
system of civil justice to quarry the record for good factual
12 Nos. 06-1685, 06-1522
arguments which a party failed to make and to which,
therefore, his opponent had no occasion to respond. “It is
the parties’ duty to package, present, and support their
arguments.” Roger Whitmore’s Automotive Services, Inc. v.
Lake County, 424 F.3d 659, 664 n. 2 (7th Cir. 2005). In any
event a finding that the four-minute delay in trying to
intubate Mrs. Johnson before the earliest time at which
her jaws clenched was willful and wanton could not be
sustained on this record. Dr. Drubka left the ambulance at
4:59 and until he left was in charge of the patient (as the
plaintiff concedes and indeed asserts) as the only physician
present. This left only three minutes before Johnson’s jaws
may have clenched shut. The Ambu bag was on Mrs.
Johnson’s face, and standard medical procedure requires
that before intubation is attempted the patient be oxygen-
ated for three minutes. There is no evidence that
Corneliuson knew how long the Ambu bag had been on
Johnson’s face or how much oxygen she had received.
Apparently even with the airway so far shut down as to
necessitate intubation, the Ambu bag can force some
oxygen into the patient’s lungs.
The Versed, moreover, was administered intravenously.
The plaintiff does not deny that the paramedics had
difficulty locating a vein for this purpose because when an
obese person loses oxygen her veins tend to “collapse.” Nor
does he question that the Versed had to be administered
intravenously to be effective. There is no evidence it could
have been administered intravenously and taken effect
before 5:09, when the first attempt at intubation was made.
In similar circumstances a delay in intubation was held to
be, as a matter of law, not willful and wanton within the
meaning of Texas’s counterpart to Illinois’s Emergency
Medical Services Systems Act. Dunlop v. Young, 187 S.W.3d
828, 829-30 (Tex. App. 2006).
Nos. 06-1685, 06-1522 13
But, argues the plaintiff (again skirting the issue of
causation), the important thing is that the paramedics
violated the Standing Medical Orders. That is both a
wrong argument (see McCoy v. Hatmaker, 763 A.2d 1233,
1236-38 (Md. Ct. Spec. App. 2000)) and a bad one. It is
wrong because the SMOs are by their terms to be followed
only “as circumstances allow,” and here they did not allow,
as will often be the case. Suppose Dr. Drubka were a
psychiatrist who had never performed an intubation but
thought Mrs. Johnson would be a good patient to practice
on. Corneliuson would not have been violating the stan-
dard of care set forth in SMOs by refusing to let him do it.
The argument is bad rather than just unsound because
of the perverse incentive it would create if accepted.
Affirming the judgment in this case on the ground that
compliance with the Standing Medical Orders is manda-
tory would send a signal to paramedics that they have a
safe harbor from lawsuits if they comply with the SMOs to
the letter, whatever the consequences for the patient. The
Illinois legislature and courts would not want us to send
such a signal; it would preserve the statutory immunity at
the cost of needlessly endangering persons in desperate
need of emergency care.
The estate has no case as a matter of law. The judgment
is reversed with directions to enter judgment for the
defendant.
REVERSED.
14 Nos. 06-1685, 06-1522
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-13-07