Gary v. City of Calumet City

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Appellate Court Date: 2022.05.27
14:41:25 -05'00'
Gary v. City of Calumet City, 2020 IL App (1st) 191812Appellate Court SALLY GARY, as Administrator of the Estate of Amanda Gary,
Caption Deceased, Plaintiff-Appellant, v. THE CITY OF CALUMET CITY,
Defendant-Appellee.
District & No. First District, First Division
No. 1-19-1812
Filed December 28, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 15-L-66043; the
Review Hon. Carrie E. Hamilton, Judge, presiding.
Judgment Affirmed.
Counsel on Brian C. Thomas, of Thomas Law, of Chicago, for appellant.
Appeal
Robert Wilder, of Odelson & Sterk, Ltd., of Evergreen Park, for
appellee.
Panel JUSTICE COGHLAN delivered the judgment of the court, with
opinion.
Presiding Justice Walker and Justice Pierce concurred in the judgment
and opinion.
OPINION
¶1 On October 12, 2014, 31-year-old Amanda Gary suffered a severe asthma attack. Her
mother, plaintiff Sally Gary, called 911. Paramedics from the Calumet City Fire Department
administered treatment to Amanda and brought her to the hospital. Amanda died 10 days later.
Sally, as administrator of Amanda’s estate, brought a wrongful death suit against Calumet City,
alleging that improper treatment by the City’s paramedics proximately caused her daughter’s
death.
¶2 Under the Emergency Medical Services Systems Act (EMS Act), the City is immune from
civil liability for the provision of medical services in good faith, except in cases of willful and
wanton misconduct. 210 ILCS 50/3.150(a) (West 2014). The trial court found that the evidence
did not support a conclusion that the City’s paramedics acted willfully and wantonly, and it
granted summary judgment for the City. Plaintiff now appeals. For the reasons that follow, we
affirm.
¶3 BACKGROUND
¶4 In her amended complaint, plaintiff alleged that the responding paramedics made a series
of errors that led to her daughter’s death. First, although Amanda’s blood oxygen levels were
dangerously low when the paramedics arrived on the scene, the paramedics unnecessarily
delayed intubating her for 14 minutes. Second, when they finally did intubate her, they inserted
the breathing tube into her esophagus rather than her trachea. Third, they failed to monitor
Amanda’s blood oxygen level after intubation and, therefore, failed to discover the tube was
placed incorrectly.
¶5 In support of her complaint, plaintiff submitted a healing arts malpractice affidavit by Dr.
John Ortinau pursuant to section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622
(West 2014)). Dr. Ortinau opined that the aforementioned errors constituted deviations from
the standard of care and that they contributed to a prolonged state of hypoxia (i.e., absence of
sufficient oxygen to maintain bodily functions), which led to Amanda’s death.
¶6 The following facts were adduced in discovery, which included the depositions of the
paramedics and doctors who treated Amanda. On October 12, 2014, at approximately 10:30
p.m., Amanda was at home when she suffered an asthma attack. Sally called 911, and
paramedics Ryan Banks and Chris Pierce responded to the scene. Banks observed that Amanda
was in severe respiratory distress; she was wheezing and unable to speak in complete
sentences. He gave her a breathing mask and administered albuterol. Pierce placed a pulse
oximeter—a device that measures a patient’s pulse and the amount of oxygen saturation in
their blood—on Amanda’s finger. Amanda had a blood oxygen level of 54%. (A healthy
person normally has a blood oxygen level above 96%.) Amanda commented that the number
was low, then fell unconscious.
¶7 According to Banks and Pierce, when a patient falls unconscious, it indicates that not
enough oxygen is reaching her brain, and it is important to supply her with oxygen as soon as
possible. However, they decided not to intubate Amanda in the house for multiple reasons: her
mother was nearby and “really anxious”; a child was screaming; and it was dark and difficult
to see. Instead, Banks gave Amanda some assisted respirations with a bag valve mask, and
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then he and Pierce brought her to the ambulance. She was still breathing on her own at this
time.
¶8 At the ambulance, before the paramedics intubated Amanda, they spent five minutes
establishing an intraosseous line (i.e., into bone marrow) through which they administered
Versed, a paralytic drug. Pierce explained that, even with an unconscious patient, Versed must
be administered prior to intubation if the patient has a gag reflex, because otherwise the patient
might vomit and then aspirate the vomit.
¶9 Pierce then performed the intubation. Because Amanda’s trachea was swollen from her
asthma, he had to use force to insert the breathing tube. He stated that he was sure he placed
the tube in her trachea and not in her esophagus. He estimated that it took around 12 minutes
from the time she fell unconscious to the time she was intubated. Banks, observing the
intubation, saw the tube pass through Amanda’s vocal cords, an indication that the tube was in
the right place.
¶ 10 After a patient is intubated, paramedics consider multiple factors to determine whether the
intubation has been performed correctly: lung sounds, lack of abdominal sounds (which would
indicate placement in the esophagus), chest rise and fall, CO2 readings, and pulse oximeter
readings. Banks and Pierce heard only “diminished” lung sounds, but they did not hear any
abdominal sounds, and the CO2 detector reflected a positive change. Banks also observed
Amanda’s chest rising and falling. Thus, they concluded that the intubation was a success.
¶ 11 However, Banks and Pierce did not record any pulse oximeter readings from Amanda after
the initial 54% reading in her home. Banks stated that the pulse oximeter “[p]robably” fell off
her finger in the house but, in any event, they would not have used that pulse oximeter in the
ambulance; they would have used the one attached to the cardiac monitor. But no such readings
were listed in their incident report, and Banks did not independently recall if they obtained any
such readings.
¶ 12 Once the intubation was complete, Pierce called St. Margaret North Hospital to inform
them that a critical patient was incoming. The drive to the hospital took three to four minutes.
At the hospital, the paramedics transferred care to emergency room personnel. Both Banks and
Pierce did not believe Amanda was in pulseless cardiac arrest at the time. Pierce specifically
recalled she had a pulse when they brought her out of the ambulance.
¶ 13 Hospital records indicate that Amanda was admitted at 11:02 p.m. She was treated in the
emergency room by Dr. Maria Cole, an internal medicine physician who is also board-certified
in emergency medicine, and Dr. Lisa Mussman, 1 a third-year resident assisting her. Neither
doctor watched the stretcher being removed from the ambulance and brought inside the
hospital doors, but they were both waiting and ready to interact as soon as Amanda arrived.
¶ 14 Within a minute of Amanda’s arrival, Dr. Cole and Dr. Mussman observed she had no
pulse and was in cardiac arrest. She was not making any breath sounds, and there were audible
sounds over her stomach, indicating that the breathing tube was in her esophagus. Thus, the
doctors removed the tube and reintubated her at 11:05 p.m.
¶ 15 Dr. Cole opined that Amanda was improperly intubated prior to arrival, because her lack
of pulse indicated that she had not been properly oxygenated. She had no opinion as to how
long Amanda had been improperly intubated, though she stated it generally takes five to seven
1
Dr. Mussman is sometimes also referred to as Dr. Johnson in the record.
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minutes without oxygen for a person to go into cardiac arrest. She acknowledged it was
possible that the breathing tube was initially placed properly but shifted when Amanda was
transferred from the ambulance to the hospital, but she “[v]ery rarely” observed such shifts in
other patients.
¶ 16 Dr. Mussman opined that the breathing tube had been in Amanda’s esophagus for “quite a
while” based on her pupils, which were fixed and dilated. She said it would generally take at
least 10 minutes without oxygen for a person’s pupils to reach that state, although the exact
time could vary based on the individual. She further opined that it was not possible for a
properly placed tube to shift into the esophagus, because “[i]t’s a very long airway and they
are two separate tubes side by side.” In her four years of residency, she estimated that she had
to reintubate patients in only 1 to 3% of cases.
¶ 17 Banks did not dispute that the hospital staff found the breathing tube in Amanda’s
esophagus, but he denied that it was originally placed there. He speculated that the tube moved
when Amanda was transferred from the stretcher to the hospital bed. Pierce similarly
speculated that because Amanda’s trachea was so tight, the tube “slipped out.”
¶ 18 Dr. Bruna Arrentegui-Rodriguez treated Amanda starting on October 13, 2014, the day
after she was admitted to the hospital. At the time, Amanda was in the intensive care unit, in
cardiac arrest and experiencing seizures due to brain damage caused by lack of oxygen. She
never regained consciousness. On October 22, 2014, she was declared brain-dead, and life
support was withdrawn.
¶ 19 Dr. Arrentegui-Rodriguez stated that, if a patient is improperly intubated, the resulting lack
of oxygen can lead to respiratory failure. But she could not say with 100% certainty that
improper intubation caused Amanda’s condition, since it was impossible to know what would
have happened if she had been properly intubated from the start. Regarding the possibility that
the tube shifted, Dr. Arrentegui-Rodriguez stated that moving a patient could dislodge a
properly placed tube, but she did not think the tube could move into the esophagus.
¶ 20 All three doctors were asked to comment on the paramedics’ care of Amanda based on the
paramedics’ incident report. Dr. Cole stated that the paramedics’ report did not reflect that they
incorrectly intubated her. Dr. Arrentegui-Rodriguez stated that monitoring a patient’s pulse
oximeter readings after intubation would be “helpful” and “appropriate” (though she declined
to state that it was “necessary”). Finally, Dr. Mussman stated, that in a hospital setting, she
would “definitely” monitor pulse oximeter readings on an intubated patient, because if the tube
was placed incorrectly, the patient’s oxygen saturation could decrease. However, she stated
that pulse oximeter readings can be inaccurate, and she cited a number of other factors to
consider, including seeing the tube go through the vocal cords, listening for lung sounds, using
a CO2 detector, and watching for condensation in the tube. Dr. Cole and Dr. Arrentegui-
Rodriguez similarly acknowledged that pulse oximeter readings can be inaccurate for a variety
of reasons, including nail polish and skin temperature.
¶ 21 Finally, in regard to their training, both Banks and Pierce referenced various Standing
Medical Orders (SMOs) that they were trained to follow. SMO Code 75, governing
intubations, called for “[c]ontinuous pulse oximetry and cardiac monitoring.” However, deputy
fire chief Peter Bendinelli, who was in charge of the fire department’s emergency medical
services training from 2009 to 2017, opined that pulse oximeter readings were not important
in assessing an intubation. He gave two reasons: First, the readings might be inaccurate.
Second, even if accurate, a drop in blood oxygen levels might be caused by patient heart failure
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rather than an error in intubation. Thus, rather than relying on a pulse oximeter, Bendinelli
would consider lung and abdominal sounds, chest rise and fall, CO2 monitoring, the presence
of condensation on the breathing tube, and the color of the patient’s skin. Bendinelli trained
ambulance crews in accordance with this protocol.
¶ 22 Based on the foregoing facts, the City moved for summary judgment, arguing that plaintiff
had presented no evidence that would support a conclusion that the paramedics’ actions were
willful and wanton. The City argued that (1) the evidence showed that Amanda was intubated
at the earliest possible time, (2) even assuming arguendo that the intubation was performed
incorrectly, the paramedics’ error would not constitute willful and wanton conduct in light of
the “difficult and chaotic emergency circumstances,” and (3) the paramedics used reliable
methods to assess and monitor the intubation (CO2 monitoring and listening to the lungs and
abdomen).
¶ 23 In response, plaintiff argued that the issue of willful and wanton conduct was a question of
fact for the jury to decide. In particular, she argued that the incorrect placement of the breathing
tube was willful and wanton, particularly in light of the paramedics’ failure to obtain any pulse
oximeter readings after the initial 54%.
¶ 24 On August 9, 2019, the trial court granted the City’s motion for summary judgment, stating
that “[t]his is precisely the type of case that falls within the EMS Act.” The court found it
particularly significant that “the paramedics did check multiple times and in multiple ways to
ensure that the intubation was done correctly.” In light of this fact, the court stated the
paramedics’ failure to obtain pulse oximeter readings “does not amount to negligence, let alone
willful and wanton.” The court also declined to consider Dr. Ortinau’s affidavit as competent
evidence, since Dr. Ortinau formed his opinion prior to any discovery and the record did not
reflect that he maintained his opinion after reviewing the entire discovery.
¶ 25 ANALYSIS
¶ 26 We review the trial court’s grant of summary judgment de novo (Williams v. Manchester,
228 Ill. 2d 404, 417 (2008)), keeping in mind that summary judgment is only appropriate where
“there is no genuine issue as to any material fact and *** the moving party is entitled to a
judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). Thus, we construe the record
strictly against the movant and liberally in favor of the nonmoving party. Williams, 228 Ill. 2d
at 417. To prevail, the nonmoving party must present some evidence that would arguably
entitle her to recover at trial. Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 472
(2010).
¶ 27 Plaintiff argues that the trial court erred in finding, as a matter of law, that the City was
immune from liability under section 3.150(a) of the EMS Act. That section provides:
“Any person, agency or governmental body certified, licensed or authorized pursuant
to this Act or rules thereunder, who in good faith provides emergency or non-
emergency medical services *** in the normal course of conducting their duties, 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) (West 2014).
The purpose behind such immunity is “to encourage emergency response by trained medical
personnel without risk of malpractice liability for every bad outcome or unfortunate
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occurrence.” Gleason v. Village of Peoria Heights, 207 Ill. App. 3d 185, 188-89 (1990).
Emergency situations are often fraught with tension and confusion, and medical personnel
“must not be afraid to do whatever they can under less than ideal circumstances.” Id. at 189.
¶ 28 Nevertheless, section 3.150(a) provides no immunity for willful and wanton misconduct,
which is defined as conduct exhibiting “ ‘an utter indifference to or conscious disregard for a
person’s own safety or the safety or property of others.’ ” Bowden v. Cary Fire Protection
District, 304 Ill. App. 3d 274, 280 (1999) (quoting Pfister v. Shusta, 167 Ill. 2d 417, 421-22
(1995)). Such conduct lies between intentional and merely negligent conduct. Kirwan v.
Lincolnshire-Riverwoods Fire Protection District, 349 Ill. App. 3d 150, 155 (2004). The
Restatement, which terms such behavior “reckless misconduct” (see Restatement (Second) of
Torts § 500 Scope Note, at 587 (1965)), explains:
“[Reckless misconduct] differs from that form of negligence which consists in mere
inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable
the actor adequately to cope with a possible or probable future emergency, in that
reckless misconduct requires a conscious choice of a course of action, either with
knowledge of the serious danger to others involved in it or with knowledge of facts
which would disclose this danger to any reasonable man. *** [T]he actor to be reckless
must recognize that his conduct involves a risk substantially greater in amount than that
which is necessary to make his conduct negligent.” Restatement (Second) of Torts
§ 500 cmt. g, at 590 (1965).
¶ 29 Here, plaintiff argues that genuine issues of material fact exist regarding whether the
paramedics acted with reckless disregard for Amanda’s well-being. Courts have considered
this issue many times in the context of emergency responses to asthma patients and other
patients with difficulty breathing. In American National Bank & Trust Co. v. City of Chicago,
192 Ill. 2d 274 (2000), and Abruzzo v. City of Park Ridge, 2013 IL App (1st) 122360, there
was a question of fact as to whether the responding paramedics acted willfully and wantonly.
But in Bowden, 304 Ill. App. 3d 274, and Fagocki v. Algonquin/Lake-In-The-Hills Fire
Protection District, 496 F.3d 623 (7th Cir. 2007), there was not, and defendants were entitled
to judgment as a matter of law. For the reasons that follow, we find the instant case analogous
to Bowden and Fagocki rather than American National Bank and Abruzzo.
¶ 30 In American National Bank, 192 Ill. 2d at 276, the decedent suffered an asthma attack and
called 911, saying that she thought she was going to die. The dispatcher did not try to keep her
on the phone, and the responding paramedics left after receiving no response to knocks at her
apartment, even though her door was unlocked. Id. at 276-77. Based on these allegations, our
supreme court held that the complaint stated a cause of action for willful and wanton conduct,
explaining: “Locating a person in need of emergency medical treatment is the first step in
providing life support services. Not even that first step was taken here.” Id. at 286.
¶ 31 In Abruzzo, 2013 IL App (1st) 122360, Larry Furio entered the bedroom of his 15-year-old
son Joseph and found him purple, gasping for breath, and unresponsive. Larry called 911 and
administered cardiopulmonary resuscitation to Joseph. By the time paramedics arrived, Joseph
had regained consciousness and was able to sit up and say some words. The paramedics
visually assessed him, said words to the effect of “ ‘He looks alright I guess,’ ” and left without
providing treatment. Id. ¶ 8. The next morning, Larry found Joseph unconscious and blue. He
called 911 again, and Joseph was transported to the hospital where he was pronounced brain-
dead. Id. ¶ 28. The Abruzzo court found a question of fact as to whether the paramedics who
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responded to the first 911 call acted with conscious disregard for Joseph’s safety by failing to
treat him and bring him to the hospital. Id. ¶ 84.
¶ 32 By contrast, in Bowden and Fagocki, no willful and wanton misconduct was found where
the responding paramedics provided extensive treatment to the decedents. In Bowden, 304 Ill.
App. 3d at 276, Bowden had a severe asthma attack in his home, and his son called 911. The
responding paramedics assessed Bowden’s medical condition, obtained his medical history,
“bagged” him with high-flow oxygen, and brought him to the ambulance for immediate
transport to the hospital. En route, he went into full cardiopulmonary arrest. Per hospital
instructions, the paramedics stopped the ambulance and attempted to intubate Bowden, but
they were unsuccessful. Again per hospital instructions, they did not try a second time but
administered additional oxygen while continuing to the hospital. There, Bowden was
maintained on life support until he died eight days later.
¶ 33 Under these facts, the Bowden court held that summary judgment for defendant was
appropriate. The court explained: “[I]n light of the undisputed evidence of the extensive
treatment provided by the EMTs, there simply is no evidence that they showed an utter
indifference to the decedent’s safety.” Id. at 282. The court further stated that, “[a]lthough there
is no question that the result here was tragic, it is inappropriate to examine the case in hindsight
and second-guess every action taken by the EMTs in rendering emergency treatment to the
decedent.” Id. at 283-84.
¶ 34 In Fagocki, 496 F.3d at 624, the decedent had a severe allergic reaction to peanuts, and her
husband drove her to a nearby immediate-care center. Staff at the center saw her condition and
called 911. When paramedics arrived, they administered Benadryl and brought her into the
ambulance. They attempted to intubate her but discovered her jaws were clenched shut and
administered Versed to her intravenously. After the Versed took effect, they attempted to
intubate her a second time (unsuccessfully) and a third time (successfully, or so they thought).
Upon her arrival at the hospital, emergency room staff discovered that the breathing tube was
in the decedent’s esophagus rather than her trachea, and they reintubated her properly. Id. at
626. By then, she had suffered severe brain damage precipitating her into a vegetative state
from which she never recovered.
¶ 35 The Fagocki court reversed the trial court’s judgment for the estate, holding that the
paramedics’ actions were not willful and wanton as a matter of law. Id. at 630. In doing so, the
court explicitly rejected the proposition that the improper third intubation was willful and
wanton, stating: “No one supposes an incorrect insertion itself, in a moving ambulance,
negligent.” Id. at 628. The court further stated that the paramedics’ failure to detect the
incorrect tube placement “may have been negligent” but “would not amount to willful and
wanton misconduct without circumstances of aggravation.” Id.; see also Brock v. Anderson
Road Ass’n, 287 Ill. App. 3d 16, 26-27 (1997) (paramedics who provided “extensive care” to
heat stroke victim did not act willfully and wantonly despite multiple alleged errors in care;
even if errors were negligent, they did not indicate an utter indifference to patient’s safety).
¶ 36 In the instant case, as in Bowden and Fagocki and unlike in American National Bank and
Abruzzo, it is undisputed that the paramedics engaged in extensive efforts to save Amanda’s
life. They administered albuterol and measured her blood oxygen level; when she fell
unconscious, they gave her assisted aspirations with a bag valve mask and brought her to the
ambulance. There, they administered Versed to prevent her from vomiting and aspirating her
own vomit, and then Pierce intubated her. After the intubation, they observed multiple factors
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that led them to believe it had been performed correctly: they heard sounds from her lungs
(albeit diminished), did not hear sounds from her abdomen, and saw a positive change in the
CO2 detector. Banks also observed her chest rising and falling.
¶ 37 Construing the record liberally in favor of plaintiff (Williams, 228 Ill. 2d at 417), a
reasonable finder of fact could conclude that Pierce performed the intubation incorrectly by
inserting the tube into Amanda’s esophagus rather than her trachea. A finder of fact could also
reasonably conclude that this error might have been discovered and fixed prior to Amanda’s
arrival at the hospital if the paramedics had used a pulse oximeter to continuously monitor
Amanda’s blood oxygen levels. But even taking these things as true, such errors do not reflect
“an utter indifference to the decedent’s safety” (Bowden, 304 Ill. App. 3d at 282) as required
for a finding of willful and wanton misconduct. This is particularly true where, as here, the
paramedics utilized multiple other methods to assess the intubation in a tense and time-
sensitive emergency situation. In this regard, this case contrasts starkly with Abruzzo, 2013 IL
App (1st) 122360, ¶ 8, where the responding paramedics gave only a cursory visual assessment
to the decedent before concluding that he “look[ed] alright” and leaving.
¶ 38 Plaintiff nevertheless argues that the present case is analogous to Meck v. Paramedic
Services of Illinois, 296 Ill. App. 3d 720 (1998), and Prowell v. Loretto Hospital, 339 Ill. App.
3d 817 (2003). We find these cases inapposite.
¶ 39 The sole issue in Meck was proximate causation—specifically, whether the decedent’s
estate was required to prove the decedent had a greater than 50% chance to survive absent the
paramedics’ alleged misconduct. Meck, 296 Ill. App. 3d at 725-26. The Meck court answered
this question in the negative and reversed summary judgment for defendants on that basis
alone. Id. at 726-27. The parties did not argue, and the Meck court did not discuss, whether the
paramedics’ actions could be construed as willful and wanton.
¶ 40 As for Prowell, 339 Ill. App. 3d at 818, it is readily distinguishable on its facts. The
decedent in Prowell was transported to the hospital by ambulance. Upon arrival, as she was
removed from the ambulance on a stretcher, she fell onto a concrete ramp and sustained injuries
that resulted in her death. The Prowell court found a question of fact as to whether the
paramedics acted willfully and wantonly, based on evidence that they had actual knowledge
that the stretcher was not secure (id. at 824) and that they left the stretcher unattended, allowing
it to roll into a pothole (id. at 825-26). But in making this finding, the Prowell court explicitly
distinguished Bowden on grounds that “the factual questions [in Bowden] concerned the quality
of the EMTs’ efforts to provide care to the decedent.” Id. at 825. Here, too, the factual questions
concern the quality of the paramedics’ efforts to provide care to Amanda. Accordingly, Prowell
is inapposite.
¶ 41 Finally, plaintiff argues that there is an issue of fact as to whether the City committed
willful and wanton misconduct in its training of ambulance crews. She cites the deposition of
Bendinelli, who stated that he trained ambulance crews not to rely on pulse oximetry to
measure the success of an intubation but, instead, to consider lung and abdominal sounds, chest
rise and fall, CO2 monitoring, the presence of condensation on the breathing tube, and the color
of the patient’s skin. Bendinelli explained that pulse oximeter readings could be inaccurate and
did not always reflect whether the breathing tube was placed correctly.
¶ 42 To defeat summary judgment, plaintiff would have had to present evidence that the City
either knew Bendinelli’s training imperiled patients or that the City failed to recognize this
danger through recklessness. Affatato v. Jewel Cos., 259 Ill. App. 3d 787, 800 (1994). Plaintiff
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presented no such evidence. On the contrary, all three of Amanda’s treating physicians
corroborated Bendinelli’s statement that pulse oximeter readings can be inaccurate. In light of
their testimony, plaintiff has not presented an issue of fact as to whether Bendinelli’s training
reflects an utter indifference to patients’ safety. See Bowden, 304 Ill. App. 3d at 282.
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, we affirm the trial court’s grant of summary judgment for the
City on the basis of immunity from suit under the EMS Act.
¶ 45 Affirmed.
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