Ruiz v. The City of Chicago ( 2006 )

FOURTH DIVISION
FILED: JUNE 29, 2006
1-04-1740, 1-04-2591 (Consolidated)
OMAYDA RUIZ, Individually and as Independent ) Appeal from the
Administrator of the Estate of HAROLD ) Circuit Court of
SEPULVEDA, Deceased ) Cook County.
)
Plaintiff-Appellant, )
)
v. ) No. 00 L 9461
)
THE CITY OF CHICAGO, a Municipal Corporation, ) Honorable
) Mary A. Mulhern,
Defendant-Appellee ) Judge Presiding.
)
(IGNACIO FORNARIS, Individually and as Agent, )
Servant and/or Employee of NORWEGIAN )
AMERICAN HOSPITAL d/b/a PRO-HEALTH )
MEDICAL CENTER, INC. )
)
Defendant). )
JUSTICE MURPHY delivered the opinion of the court:
On August 21, 1999, Harold Sepulveda died as the result of a severe asthma
attack. As administrator of the estate of Harold Sepulveda, plaintiff filed suit against the
City of Chicago (the City) alleging that paramedics took an unreasonable amount of
time to arrive at the scene and failed to properly treat Harold. Plaintiff also alleged that
Dr. Ignacio Fornaris failed to properly treat Sepulveda from the age of four until his
death. Finally, plaintiff advanced a product liability claim against Schering-Plough
Health Care Products, Inc. (Schering-Plough), alleging the inhaler it manufactured was
ineffective.
Plaintiff voluntarily dismissed Schering-Plough after the company demonstrated
1-04-1740, 1-04-2591 (Consolidated)
its inhaler was not defective. Also prior to trial, Fornaris filed a contribution claim
against plaintiff alleging that she was negligent in caring for Sepulveda. The City filed a
motion in limine to bar plaintiff=s two expert witnesses that were to opine that the
paramedics did not comply with the standard of care for the situation. The trial court
granted the City=s motion and subsequently granted its motion for a directed verdict
because plaintiff no longer had an expert to establish the standard of care, the threshold
element of a medical malpractice claim.
The jury returned a verdict against Dr. Fornaris and awarded plaintiff $4 million
for the wrongful death count and the estate $4.25 million on the survival count.
However, the jury found plaintiff 35% at fault; thus, her damages were reduced to $2.6
million. Plaintiff then settled with Fornaris for the $1 million limit on his insurance policy.
Counsel for plaintiff was awarded costs and attorney fees of $262,500 pursuant to
section 2-1114 of the Code of Civil Procedure (735 ILCS 5/2-1114 (West 2004)) and
costs of $29,374.32 for a total of $291,874.32. In addition, $10,000 was to remain in the
client trust account for purposes of plaintiff=s appeal. With plaintiff=s approval, counsel
petitioned the trial court for an enhancement of fees to 33 1/3% or $333,333. Therefore,
$70,833.33 was also set aside and placed in an interest-bearing escrow account
pending this appeal.
Plaintiff now appeals the trial court=s granting of the City=s motions. Plaintiff=s
counsel appeals the denial of his petition for an enhanced fee. This court consolidated
these two claims and for the following reasons, affirms the trial court.
3
1-04-1740, 1-04-2591 (Consolidated)
I. BACKGROUND
According to records from the City of Chicago Office of Emergency
Communications (OEC), on August 21, 1999, at 1:18:59 a.m., a call was received for
assistance with a child having an asthma attack at 1438 North Artesian Avenue.
Plaintiff made this 911 call to request help for her 10-year-old son Harold Sepulveda,
who was having a severe asthma attack. Plaintiff stated that it was the worst attack
Sepulveda had ever had. Plaintiff tapped on the side of his chest, administered a
nebulizer and made him walk around to exercise his lungs. Plaintiff then went to the
outside door of their apartment building to wait for the paramedics.
Paramedics Johnny Musa and Kerry Pakucko, along with student trainee Ken
Cardenas, responded to the call from the fire station located at West Potomac Avenue
and North Western Avenue. According to the OEC records, the paramedics were
aboard ambulance A44 en route to plaintiff=s apartment at 1:21:08 a.m. and arrived at
1438 North Artesian Avenue at 1:26:23 a.m. The OEC records also indicate that two
additional 911 calls were made from plaintiff=s apartment at 1:22:43 a.m. and 1:24:53
a.m. These two calls were made by plaintiff=s sister, who remained in the apartment
with Sepulveda.
Musa was a regular driver on ambulance runs in other areas of the city and had
been assigned to this fire station as a one-day substitute for another paramedic. The
paramedics were informed that they were responding to a call about an asthmatic child
located in the second-floor apartment at 1438 North Artesian Avenue. Although the fire
4
1-04-1740, 1-04-2591 (Consolidated)
station was approximately three blocks from plaintiff=s apartment, the paramedics took
over five minutes to arrive because Musa first missed North Artesian Avenue. After
missing this turn, Musa was unable to turn north for two streets as they were one-way
streets in the wrong direction. Musa stated that ambulance drivers are to avoid
speeding and driving the wrong way down a one-way street. Eventually, worried about
the delay, Musa made the turn north on North Rockwell Avenue, then turned and
traveled the wrong way on a one-way street to again go the wrong way on North
Artesian Avenue and reach plaintiff=s apartment.
Upon arrival, the paramedics came upon plaintiff, who was standing in the street.
Plaintiff told the paramedics that Sepulveda was very sick and had been having an
asthma attack for two days. The paramedics grabbed oxygen, a jump bag and a
monitor, and ascended the stairs to plaintiff=s apartment. Musa testified that plaintiff=s
apartment was poorly lit and that they found Sepulveda in the living room, slumped over
a sofa. They placed him on the sofa and determined that he was not breathing and did
not exhibit a pulse.
Musa picked Sepulveda up and carried him downstairs to the rig while he
performed cardiopulmonary resuscitation (CPR) and Pakucko performed ventilations on
Sepulveda with the ventilator bag. Musa admitted they could have intubated Sepulveda
in the apartment; however, as the apartment was dark, the rig was a better place to
work and this also eliminated the risk of the tube becoming dislodged when carrying him
down to the ambulance. In the rig, Pakucko intubated Sepulveda and Musa started an
5
1-04-1740, 1-04-2591 (Consolidated)
intravenous line, connected the monitor and EKG machine, and administered
epinephrine and atropine.
At 1:37:38 a.m., Musa drove the ambulance from 1438 North Artesian Avenue to
St. Elizabeth Hospital while Pakucko continued to administer CPR. They arrived at the
emergency room at St. Elizabeth Hospital approximately two minutes later. However,
the emergency room doctors were unable to resuscitate Sepulveda and he was
pronounced dead at 2:28 a.m.
On August 18, 2000, plaintiff filed a complaint against the City, Schering-Plough,
and Dr. Fornaris. Plaintiff=s amended complaint dropped Schering-Plough and retained
the City and Dr. Fornaris as defendants. Plaintiff brought wrongful death and survival
claims against the City alleging that prior to, and during, the course of treatment of
Sepulveda, the paramedics willfully and wantonly violated AParamedic Standing
Orders,@ depriving him of necessary care, causing unnecessary pain and suffering and,
ultimately, his death. In her disclosures pursuant to Supreme Court Rule 213 (177 Ill.
2d R. 213), plaintiff identified Joseph Ligouri, a paramedic, and Dr. Jesse Hall as her
expert witnesses.
Ligouri=s deposition was taken on July 11, 2003, by the City. Ligouri testified
that he was a volunteer paramedic in Long Island, New York, from 1977 to 1982, when
he moved to Broward County, Florida. Ligouri stated that he has been a paramedic for
the Delray Beach Fire Department in Florida since 1984 and was currently certified in
Florida as a paramedic. Ligouri testified that Delray Beach Fire Department serves
6
1-04-1740, 1-04-2591 (Consolidated)
62,000 residents and has six ambulances and three advance life support engines on
duty.
Ligouri testified to several calls that he had been on that involved asthma attacks
and that he had seen minors die from these attacks. Ligouri further testified that he had
intubated three pediatric patients as a paramedic. Ligouri was qualified as an American
Heart Association pediatric advanced life support provider. In addition, he stated that
he was familiar with the American Heart Association=s advanced cardiac life support
training. However, this is not a certification program or a national standard. Ligouri
further testified that there is no national certification for paramedics and that each state
is different.
Specifically, Ligouri was unable to testify about certification processes in Illinois
or Chicago. Ligouri had reviewed the Chicago Fire Department standing medical
orders, the Chicago Fire Department policies and procedures, the Chicago Police
Department investigation report of this incident, the event logs for August 21, 1999, and
the depositions of Pakucko, Cardenas, and Musa. Based on review of these
documents and his experience as a paramedic, Ligouri opined that he was qualified to
testify as to the standard of care in Cook County, Illinois.
With respect to the response time of the paramedics, and Musa=s missing North
Artesian Avenue, causing a delay in their arrival, Ligouri testified that there was no
national standard of care with respect to familiarization of streets. Ligouri was not
familiar with a standard of care in Cook County on this issue either, but opined that,
7
1-04-1740, 1-04-2591 (Consolidated)
based on his years of service, the paramedics should have had a better familiarization
with the streets in the area. Further, Ligouri opined that Pakucko should have informed
Musa he was going the wrong way when he passed North Artesian Avenue.
Ligouri admitted that the paramedics initially evaluated the situation correctly,
namely, that Sepulveda was not breathing and had no pulse and that CPR and oxygen
were required. Ligouri opined that the paramedics= decision to remove Sepulveda to the
rig, rather than intubate him and administer CPR in the apartment, violated the standard
of care outlined in the standing medical orders. Ligouri also admitted that he was not
familiar with the equipment utilized by paramedics in Cook County, but based his
opinions on equipment he used in Delray Beach, Florida.
Ligouri stated that the darkness in the room would not make intubating the child
any more difficult, though administering fluids via an intravenous drip might have been
more difficult. In addition, Ligouri did admit there would have been a risk of the tube
falling out when the patient was carried down the stairs. Essentially, Ligouri argued that
immediacy in administering oxygen and CPR was required as every second
dramatically increases the chances of a successful resuscitation. Ligouri did not know
when Sepulveda=s heart had stopped or when he had stopped breathing.
Prior to trial, the City filed its motion in limine to bar the testimony of Ligouri. The
City argued that the standard of care for the issues at trial was local and not national.
Accordingly, Ligouri=s admission that there was no national standard of care and his
lack of familiarity with local practice required the trial court to bar his testimony as an
8
1-04-1740, 1-04-2591 (Consolidated)
expert. The trial court found that, though he was a licensed paramedic, it was clear
from Ligouri=s testimony that he was unfamiliar with the local standard of care in Cook
County or the City of Chicago, or a similar community, and thus, he did not meet the
standard of competency to testify to the standard of care applicable to the paramedics
in this case.
The trial court then granted the City=s motion for directed verdict because plaintiff
had no expert to testify to the local standard of care to support her claim against the
City. Following the trial, the trial court also denied plaintiff counsel=s petition for
enhancement of fees and his motion to reconsider the denial of his petition. These
appeals followed and were consolidated by this court.
II. ANALYSIS
A. The City=s Motion in Limine and Motion for Directed Verdict
In an action for medical malpractice, the plaintiff first bears the burden of proving
the proper standard of care against which the defendant=s conduct is measured. Purtill
v. Hess, 111 Ill. 2d 229, 241-42 (1986). In this case, plaintiff alleged that the
paramedics for the City violated the standard of care by not giving oxygen and CPR
immediately to Sepulveda. Plaintiff argues that the testimony of her expert Ligouri was
sufficient to support his certification as an expert, and ultimately, this threshold issue of
the standard of care. The City counters that the trial court=s decision to exclude the
testimony of Ligouri was within its discretion and proper. Further, the City argues, the
trial court properly granted its motion for a directed verdict, because without the
8
1-04-1740, 1-04-2591 (Consolidated)
testimony of Ligouri, plaintiff could not establish the first element for medical
malpractice, the standard of care.
To qualify as an expert in the medical field, the witness must be a licensed
member of the school of medicine about which he intends to testify and he must be
familiar with the methods, procedures, and treatments ordinarily observed in the
defendant=s community or similar community. Sullivan v. Edward Hospital, 209 Ill. 2d
100, 112-13 (2004). Finally, the trial court has discretion to determine if these
foundational matters are met such that the expert is competent to testify to the issues at
hand. Gill v. Foster, 157 Ill. 2d 304, 317 (1993). The City argues not only are Gill and
Sullivan clear on the discretion vested in the trial court at this stage, but that all
decisions regarding the admission of evidence, including expert testimony, are
discretionary. Swick v. Liautaud, 169 Ill. 2d 504, 521 (1996).
Plaintiff contends that the expert qualification protocol represents application of
the law when determined without an evidentiary hearing, thus implicating the de novo
standard of review. TCA International, Inc. v. B & B Custom Auto, Inc., 299 Ill. App. 3d
522 (1998). Plaintiff argues that the trial court based its decision to exclude Ligouri on
an erroneous conclusion of law, namely, that his foundational testimony was improperly
elicited by leading questions, and thus review must be de novo. Beehn v. Eppard, 321
Ill. App. 3d 677, 680-81 (2001). However, as discussed below, we do not find this to be
the case and review the trial court=s decision to exclude Ligouri under an abuse of
discretion standard as clearly outlined in Gill and Sullivan.
9
1-04-1740, 1-04-2591 (Consolidated)
First, there is no argument that Ligouri met the first prong of the foundational
requirement for expert witnesses, that he is a licensed paramedic. Therefore, review
centers on whether Ligouri was sufficiently familiar with the methods, procedures, and
treatments ordinarily observed in the defendant=s community or similar community to
establish his competency as an expert. Plaintiff argues that an entity=s own rules of
conduct would be the highest, most objective source for a standard of care and that,
coupled with his vast experience as a paramedic, Ligouri=s review of the Chicago Fire
Department standing orders and policies and procedures was sufficient to certify him as
an expert. Plaintiff argues that Wojcik v. City of Chicago, 299 Ill. App. 3d 964 (1998),
stands for this proposition.
In Wojcik, the plaintiff brought a medical malpractice action against the City of
Chicago and paramedics for failure to properly treat her hypoglycemia. Wojcik, 299 Ill.
App. 3d at 967. In the issue of note, she argued that the trial court abused its discretion
in allowing defendant City of Chicago to introduce testimony that the standing medical
orders established the standard of care. Wojcik, 299 Ill. App. 3d at 977. The City
presented the testimony of a nurse manager for the emergency room at Ravenswood
Hospital who trained paramedics. This witness testified that the standing medical
orders establish the standard of care for treating patients in the City of Chicago. Wojcik,
299 Ill. App. 3d at 978.
This court found that the trial court did not abuse its discretion in allowing the
standing medical orders into evidence. Wojcik, 299 Ill. App. 3d at 977. In doing so, the
10
1-04-1740, 1-04-2591 (Consolidated)
court noted that evidence of compliance with standing orders and local rules is not
conclusive of the standard of care, but may be admissible as evidence to aid the trier of
fact in determining the standard of care. Wojcik, 299 Ill. App. 3d at 978. Because the
nurse was qualified to testify and her testimony was consistent with the minimum
national standards proffered by the plaintiff=s witnesses, the trial court did not abuse its
discretion in allowing admission of this evidence. Wojcik, 299 Ill. App. 3d at 978.
We first disagree that the trial court based its decision on the leading questions of
Ligouri. Rather, the trial court found that the only times Ligouri noted the local standard
of care were in leading questions from plaintiff=s counsel. The trial court specifically
noted that Ligouri testified several times that he did not know the standard of care in
Cook County or the City of Chicago. Further, Ligouri specifically noted that there was
no national standard of care on these key issues. The trial court cited to Sullivan and
the requirement that an expert must be familiar with local methods, procedures and
treatments before finding that A[t]hat is absolutely absent in this case.@ The trial court
did not say that leading questions were improper but utilized this testimony, along with
Ligouri=s admissions that he did not know the standard of care, to determine it was
Aperfectly clear to [it]@ that Ligouri was not competent as an expert.
We also reject plaintiff=s assertion that Wojcik stands for the proposition that the
standing orders may be utilized to establish the standard of care. Wojcik plainly states
that standing orders and the like are not conclusive evidence of a standard of care.
Rather, Wojcik grants discretion to the trial court as to the admissibility of standing
11
1-04-1740, 1-04-2591 (Consolidated)
orders only when they may assist the trier of fact in determining the proper standard of
care. In that case, the witness testifying to the orders was a nurse; however, she was a
nurse practicing in Chicago who trained City of Chicago paramedics. Furthermore, the
witness and standing orders were consistent with the testimony of the plaintiff=s experts.
In this case, Ligouri is a paramedic licensed in Delray Beach, Florida, a
community wholly lacking any similarity to the City of Chicago. Ligouri repeatedly
admitted that he did not know the local standard of care for Cook County or the City of
Chicago. Any testimony remotely close to this was as a response to leading questions
and based solely on his reading of the standards of care. The trial court properly found
the City=s standing medical orders were not conclusive evidence of the standard of care
and that Ligouri lacked sufficient familiarity with the City=s practices and standard to
establish his competency as an expert. It follows that, since plaintiff could not establish
the standard of care, her medical malpractice claim against the City failed.
B. Petition for Enhancement of Fees
As noted above, plaintiff was successful at trial in her claims against Dr. Fornaris;
however, she settled with Fornaris for his insurance policy limit of $1 million and
postjudgment interest of $38,959.64. Pursuant to section 2-1114 (735 ILCS 5/2-1114
(West 2004)), counsel was awarded $262,500 in fees plus $29,374.32 in costs for a
total of $291,874.32. Further, an additional $10,226.90 from the settlement proceeds
was placed in a trust account for purposes of the appeal of plaintiff=s issue. Counsel
now appeals the trial court=s denial of his petition for enhanced fees and his motion to
12
1-04-1740, 1-04-2591 (Consolidated)
reconsider. A denial of a petition for enhanced fees is reviewed under an abuse of
discretion standard. Clay v. County of Cook, 325 Ill. App. 3d 893, 899 (2001).
Counsel agrees that section 2-1114(a) limits attorney fees in medical malpractice
actions to 33 1/3% of the first $150,000 recovered, 25% of the next $850,000
recovered, and 20% of any amount recovered over $1 million. 735 ILCS 5/2-1114(a)
(West 2004). In fact, counsel=s contract with plaintiff specifies this exact contingency
fee scale as the terms of his employment. However, counsel argues (as he included in
his contract) that section 2-1114(c) allows for an enhancement of fees upon petition to
the court where the attorney Aperforms extraordinary services involving more than usual
participation in time and effort.@ 735 ILCS 5/2-1114(c) (West 2004).
Counsel cites the holding in Clay to support his claim. In Clay, plaintiff=s attorney,
Mark G. Slutsky, appealed an enhancement of $138,000 as it was less than he had
requested. Clay, 325 Ill. App. 3d at 895-96. Slutsky argued that he had to spend an
inordinate amount of time, allegedly over 2,000 hours, and money, $114,000 total on
trial preparation, to achieve a favorable outcome. Clay, 325 Ill. App. 3d at 895. Slutsky
noted that he was the third attorney who had worked the case and that he was severely
limited by decisions of prior attorneys and spoliation of evidence. Clay, 325 Ill. App. 3d
at 896. In support, Slutsky submitted affidavits of prior counsel, opposing counsel and
former jurists who all opined that the case at hand was extraordinary, novel and difficult
making an enhanced fee reasonable. Clay, 325 Ill. App. 3d at 903.
The trial court did not grant Slutsky=s request for a full 33 1/3% fee, but did grant
13
1-04-1740, 1-04-2591 (Consolidated)
additional fees. This court found that the trial court did not abuse its discretion in
awarding the lesser amount. Clay, 325 Ill. App. 3d at 904. In the decision, it was noted
that Slutsky provided no details as to how he compiled 2,000 hours and that, aside from
prior counsel=s affidavit detailing expert contacts, only provided affidavits with
conclusory statements that the case was novel and an enhanced fee was reasonable.
Clay, 325 Ill. App. 3d at 903. Further, this court noted that Slutsky=s fee in the vicinity of
$800,000 was substantial and for which substantial time and skill should be expected.
Clay, 325 Ill. App. 3d at 903.
Counsel in this case argues that he is entitled to an enhancement of fees. He
notes that Clay upheld an award of a $400 hourly rate and that, for an attorney of his
skill, reputation in the community as an experienced litigator in medical malpractice
matters and the extraordinary effort and result, an hourly rate of $250 to $300 would be
reasonable. Counsel cites to plaintiff=s original claims that the paramedics did not arrive
for over a half an hour and that Sepulveda=s inhaler was defective, which eventually
proved false. Counsel also details plaintiff=s contributory negligence that he had to
overcome to achieve a positive verdict. Finally, counsel repeatedly argues that
defendants never offered a settlement in this case, even during jury deliberations.
Accordingly, counsel asserts that he put forth extraordinary effort and the trial court
abused its discretion in denying his petition.
A review of the record does not identify such risks or excessive effort such that
an enhancement of counsel=s fee is proper. Even if we accepted counsel=s Atime
14
1-04-1740, 1-04-2591 (Consolidated)
sheets@ as accurate, we cannot find that the case or hours were so extraordinary that an
enhanced fee is proper. We note that this court was presented with the question of
whether the trial court abused its discretion in not granting Slutsky additional funds, not
whether a $400 hourly fee was reasonable or whether this fee might be an acceptable
baseline. Further, like in Clay, the affidavits provided by counsel in this case are merely
conclusory statements that the case at hand was difficult and, at best, attempt to
establish that the requested fee enhancement would be fair.
Medical malpractice cases are inherently difficult and risky. This is something an
accomplished attorney certainly understands. An accomplished and experienced
attorney certainly is also aware of insurance policy limits and the risk of being unable to
attain compensation beyond those limits. These are all risks an attorney takes in
advancing such a case on a contingency basis. The rewards may also be immense.
While it may have become almost customary for parties to offer settlement, a plaintiff is
not entitled to a settlement offer, especially in a case such as this, where even plaintiff=s
counsel argues on appeal that the facts were close. Taking the case to trial does not
make counsel=s effort extraordinary.
The court in Clay noted that $800,000 was a substantial award and the trial
court=s denial of a further enhancement was not an abuse of discretion. Likewise,
though not as substantial, an award of $262,500 plus costs of $29,374.32 remains a
substantial amount of money for an estimated 1,537.6 hours of work. Counsel claims
his requested enhancement is fair and reasonable; he does not provide any evidence
15
1-04-1740, 1-04-2591 (Consolidated)
that his work was extraordinary for this field.
In sum, we do not find the trial court abused its discretion. In fact, we adopt the
trial court=s concluding paragraph from its order denying counsel=s petition as a clear
summation of this issue: AWhether the enhanced fee is fair and reasonable or whether a
settlement offer is made is not dispositive of whether petitioner expended extraordinary
services and more than the usual participation in time and effort in this case.
Regardless of the reason, the legislature has decided that an attorney=s fees in medical
malpractice cases is limited; if this court were to adopt petitioner=s assertion that since
the enhanced fee sought is fair and reasonable and he had to try this case to verdict, he
is entitled to the relief sought, Section 5/2-1114 is eviscerated.@
III. CONCLUSION
Accordingly, for the aforementioned reasons, the decision of the trial court is
affirmed.
Affirmed.
CAMPBELL, J. and GREIMAN, J., concur.
16