Abruzzo v. City of Park Ridge

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State: Illinois

Court: 1st District Appellate

Docket No: 1-06-2116 Rel

Case Date: 06/22/2007

Preview:SIXTH DIVISION June 22, 2007

No. 1-06-2116 JO ANN ABRUZZO, Independent Administrator of the Estate of Joseph Furio, Deceased, Plaintiff-Appellant, v. THE CITY OF PARK RIDGE, a Municipal Corporation, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County, Illinois. No. 05 L 11789 Honorable Kathy M. Flanagan Judge Presiding.

JUSTICE JOSEPH GORDON delivered the opinion of the court: Plaintiff, Jo Ann Abruzzo, brought suit against defendant, the City of Park Ridge, alleging that the city's emergency medical technicians (EMTs) failed to provided emergency medical care to her minor son, Joseph Furio, and that, as a result, Joseph later died. Park Ridge brought a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2004)), asserting that the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1 et seq. (West 2004)) (Tort Immunity Act) provided an affirmative defense to plaintiff's claims. The circuit court granted defendant's motion, and plaintiff brought this appeal. For the reasons that follow, we affirm. I. BACKGROUND Abruzzo filed an original complaint as the independent administrator of Joseph's estate on October 28, 2005, seeking damages for wrongful death, survival, and family expenses. The complaint alleged the following. On October 31, 2004, Joseph was 15 years old and living with

No. 1-06-2116 his father, Lawrence Furio, in Park Ridge, Illinois. At 1:06 a.m., Lawrence called 911 requesting emergency medical assistance for Joseph, who was "nonresponsive" and who "required CPR." A Park Ridge fire truck and an ambulance, manned by EMTs, paramedics, and firefighters, were dispatched shortly thereafter. Upon their arrival, the EMTs, paramedics and firefighters did not "evaluate or assess" Joseph, and they did not provide "advanced life support" to Joseph. The EMTs and paramedics "were informed or should have learned" that Joseph had a history of drug abuse. The complaint further alleged: "Park Ridge, by and through its duly authorized agents and employees, behaved with willful and wanton conduct in a manner which was in utter indifference and conscious disregard for the health and safety of decedent, Joseph Furio, in one or more of the following respects: (a) responded to a request for emergency medical service for an unresponsive patient receiving CPR with a history of drug abuse and never evaluated or assessed the patient; (b) in disregard of the basic precepts of training for EMTs and paramedics and in violation of standard orders of procedure and accepted emergency protocols, failed to evaluate or assess Joseph Furio; (c) in disregard of the basic precepts of training for EMTs and paramedics and in violation of standard orders of procedure and accepted emergency protocols, responded to a call for an unresponsive patient requiring CPR and

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No. 1-06-2116 failed to prepare a run sheet or document in any way any evaluation or assessment of Joseph Furio." The complaint concluded: "[A]s a proximate result of one or more of these acts or omissions, Joseph Furio sustained injuries which resulted in his death on November 1, 2004." On February 15, 2006, Park Ridge filed a section 2-619 motion to dismiss, asserting that it was immune pursuant to sections 6-105 and 6-106 of the Tort Immunity Act. 745 ILCS 10/6105, 6-106 (West 2004). Specifically, Park Ridge asserted that it was immune from any claim alleging that it had a duty to evaluate or assess Joseph, or that it had a duty to document any such evaluation or assessment by section 6-105 of the Tort ImmunityAct, which states: "Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others." 745 ILCS 10/6-105 (West 2004). Park Ridge further averred that it was immune from any claim that it had a duty to diagnose Joseph by section 6-106 of the Act, which states: "(a) Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental or physical illness or addiction or from failing to prescribe for mental or physical illness or addiction.

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No. 1-06-2116 (b) Neither a local public entity nor a public employee acting within the scope of his employment is liable for administering with due care the treatment prescribed for mental or physical illness or addiction. (c) Nothing in this section exonerates a public employee who has undertaken to prescribe for mental or physical illness or addiction from liability for injury proximately caused by his negligence or by his wrongful act in so prescribing or exonerates a local public entity whose employee, while acting in the scope of his employment, so causes such an injury. (d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission in administering any treatment prescribed for mental or physical illness or addiction or exonerates a local public entity whose employee, while acting in the scope of his employment, so causes such an injury. 745 ILCS 10/6-106 (West 2004). On March 8, 2006, Abruzzo filed an amended complaint similar in all relevant respects to the initial complaint but in which she additionally alleged that defendant "behaved with willful and wanton conduct in a manner which was in utter indifference and conscious disregard for the health and safety of decedent, Joseph Furio, in one or more of the following respects: *** (d) in disregard of the basic precepts of training for EMTs and paramedics and in violation of standard orders of procedure and

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No. 1-06-2116 accepted emergency protocols, failed to transport Joseph Furio, a nonresponsive patient; (e) in disregard of the basic precepts of training for EMTs and paramedics and in violation of standard orders of procedure and accepted emergency protocols, responded to a call for a nonresponsive patient requiring CPR and failed to prepare a run sheet." Attached to Abruzzo's amended complaint was a physician's report as required by section 2-622 of the Code (735 ILCS 5/2-622 (West 2002)). That report states: "Based upon my review of [a copy of the 911 tape, dispatch records and other documents from the City of Park Ridge, medical records and the autopsy report], there is reasonable and meritorious cause for filing an action against the City of Park Ridge, which provided emergency medical services in response to a 911 call placed by Lawrence Furio, the father of Joseph Furio., at 1:06 a.m. on October 31, 2004. This call was placed by Lawrence Furio to request emergency medical assistance for his son, Joseph Furio, who was unresponsive and to whom he was providing CPR. A fire engine and an ambulance, presumably manned by EMTs, paramedics, and fire fighters, were dispatched to and arrived at the Furio home. From the materials available, the EMTs and paramedics did not prepare a run sheet for this emergency response. There is no record of any assessment or

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No. 1-06-2116 treatment provided to Joseph Furio during this initial EMS response. It is clear that Joseph Furio was never transported from his home to any hospital. Basic principles of training for EMTs and paramedics, standing orders and protocols, and accepted emergency procedures required the responding emergency medical personnel to evaluate and to assess any person who has an altered mental status. Joseph Furio, who had a prior history of drug abuse, was unresponsive, and had required CPR from his father. The treatment for an unresponsive person, who is presumed to have an altered mental status, requires initiation of advanced life support, as this is a potentially life threatening condition. Initiation of advanced life suppose [sic] (ALS) is required for any patient with a potentially life threatening condition like altered mental status or unconsciousness. ALS once initiated may not be discontinued unless approval is granted by a resource/associate hospital. Any child who is unresponsive has an altered level of consciousness. This condition requires treatment, including assessment of ABCs (airway, breathing, and circulation). Another critical function of emergency medical service personnel is to convey patients with acute medical conditions safely to an appropriate medical facility. After Joseph Furio had been assessed for his known altered mental status, it can only be presumed that he would have been transported to the hospital where

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No. 1-06-2116 definitive care could be rendered. If, for some reason Joseph Furio's father, Lawrence Furio, refused medical treatment and transportation to the hospital, a signed refusal of treatment should have been obtained by the emergency medical personnel. No refusal of treatment is found in the provided records. At 9:00 a.m. on October 31, 2004, a second 911 call for emergency medical services was made on behalf of Joseph Furio. At that time he was found in cardiac arrest. Resuscitation was begun and he was then transported to Resurrection Medical Center. Joseph Furio died as a result of anoxic encephalopathy due to cocaine and opiate intoxication. The identified failures on the part of the emergency medical personnel were a proximate cause of the injuries and death sustained by Joseph Furio." On May 11, 2006, Abruzzo filed a motion for leave to amend her first amended complaint and a response to defendant's motion to dismiss. In her motion to amend, Abruzzo requested to add the following allegations to her complaint to conform with the physician's report: that Park Ridge behaved with wilful and wanton conduct in one of more of the following respects: "(f) responded to a request for emergency medical service for a patient in an altered mental status and failed to initiate advanced life support (ALS); (g) responded to a request for emergency medical service for a patient in an altered mental status and failed to assess airway, breathing, and circulation; (h) responded to a request for emergency medical service for a patient in

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No. 1-06-2116 an altered mental status and, in disregard of the basic precepts of training for EMTs and paramedics and in violation of standing orders of procedure and accepted emergency protocols, failed to initiated advanced life support (ALS); (i) responded to a request for emergency medical service for a patient in an altered mental status and, in disregard of the basic precepts of training for EMTs and paramedics and in violation of standing orders of procedure and accepted emergency protocols, failed to assess airway, breathing, and circulation." In her response to defendant's motion to dismiss, Abruzzo contended the immunities in sections 6-105 and 6-106 of Tort Immunity Act were inapplicable. She contended that because Joseph was described as unresponsive during the 911 call, the EMTs were automatically required by standing orders of procedure as authorized by the Emergency Medical Services Systems Act (210 ILCS 50/1 et seq. (West 2004)) (EMS Act) to initiate treatment and that their failure to do so was not subject to immunity. On June 28, 2006, the circuit court entered a memorandum opinion and order, granting defendant's motion with prejudice and stating: "In this case, the paramedics failed to provide any evaluation, assessment, examination, diagnosis, treatment or documentation. This is both alleged in the pleading and contained in the physician's report. There is nothing in the proposed amendments to the pleading which alters this. The allegations of the First Amended Complaint, supported by the facts and circumstances here and the physician's report, do fall squarely within the immunities provided in section 6-

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No. 1-06-2116 105 and 6-106 of the Tort Immunity Act. Accordingly, the Defendant here is immune from liability and this action is barred." There is no record of any oral argument in this case. II. ANALYSIS Section 2-619 of the Code provides a means for the disposition of issues of law and easily proved issues of fact. Mills v. County of Cook, 338 Ill. App. 3d 219, 221, 788 N.E.2d 169, 171 (2003). A section 2-619 motion admits the legal sufficiency of the complaint but raises some affirmative matter, appearing on the face of the complaint or established by external submissions, which defeats the plaintiff's claim. Mills, 338 Ill. App. 3d at 221, 788 N.E.2d at 171. Affirmative matter in this context means a defense that negates the plaintiff's cause of action. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486, 639 N.E.2d 1282, 1290 (1994). Immunity under the Act qualifies as an affirmative matter properly raised in a section 2-619 motion to dismiss. Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 479, 763 N.E.2d 756, 759 (2002). We review section 2-619 motions de novo. People ex rel. Devine v. Time Consumer Marketing, Inc., 336 Ill. App. 3d 74, 78, 782 N.E.2d 761, 764 (2002). On appeal, Abruzzo contends that the general immunities contained in section 6-105 and 6-106 of the Tort Immunity Act are inapplicable because the EMS Act, which contains its own immunity provision, is more specifically directed to the instant facts. Abruzzo points to section 3.150(a) of the EMS Act, which states: "Any person, agency or governmental body certified, licensed or authorized pursuant to this Act or rules thereunder, who in good faith provides emergency or

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No. 1-06-2116 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 2004). Abruzzo further contends that although the EMS Act applies to the exclusion of the Tort Immunity Act, there is no immunity in this case under the EMS Act because the EMTs and paramedics who responded to the Furio home were wilful and wanton in failing to provide any treatment whatsoever to Joseph. Park Ridge contends that there is no conflict between the Tort Immunity Act and the EMS Act which would require a court to choose to apply the latter by reason of it being more specifically applicable to emergency personnel responding to a 911 call. Rather, Park Ridge contends that the two Acts apply to distinct situations without overlap and, therefore, there is no conflict in the fact that immunity under the EMS Act is subject to a wilful and wanton exception while no such exception exists under the Tort Immunity Act. Specifically, Park Ridge avers that the Tort Immunity Act immunizes pretreatment activities while the EMS Act only provides immunity once treatment has begun. In that regard, Park Ridge contends that only the immunities in sections 6-105 and 6-106 of the Tort Immunity Act apply in this case because absolutely no treatment was rendered to Joseph. Thus, according to Park Ridge, whether its EMTs and paramedics were wilful and wanton in failing to provide treatment is irrelevant because immunity under the Tort Immunity Act is not subject to a wilful and wanton exception. In support of its position that the Tort Immunity Act and the EMS Act are not at odds

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No. 1-06-2116 with one another but are in fact complimentary, Park Ridge first points to the general rule of statutory construction that, whenever possible, statutes are to be construed as being harmonious rather conflicting. As recently stated by our supreme court: "The cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent. [Citation.] Our analysis begins with the statutory language, which remains the best indication of that intent. [Citation.] The language must be afforded its plain, ordinary, popularly understood meaning. [Citation.] When the language is unambiguous, the statute must be applied as written without resorting to other aids of construction. [Citation.] However, when the plain language of one statute apparently conflicts with the plain language of another statute, we must resort to other means in determining the legislature's intent. Where two statutes conflict, we will attempt to construe them together, in pari materia, where such an interpretation is reasonable. [Citations.] We presume the legislature would not enact a law that completely contradicts an existing law without expressly repealing it. [Citation.] 'For a later enactment to operate as a repeal by implication of an existing statute, there must be such a manifest and total repugnance that the two cannot stand together.' [Citation.]" Moore v. Green, 219 Ill. 2d 470, 479, 848 N.E.2d 1015, 1020-21 (2006). Thus, according to Park Ridge, although the Tort Immunity Act and the EMS Act are both apparently applicable to a municipality's rendering of emergency services, if we read the two statutes in pari materia, they do not conflict despite their differing standards. Park Ridge points out that sections 6-105 and 6-106 of the Tort Immunity Act provides that a public entity

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No. 1-06-2116 will not be held liable for injuries resulting from: (1) failing to examine; (2) failing to adequately examine; (3) diagnosing; (4) failing to diagnose; and (5) failing to prescribe. 745 ILCS 10/6105, 6-106 (West 2004). In contrast, the EMS Act states that any person licensed under the Act who provides emergency or nonemergency medical services will not be held liable for providing those services unless they act wilfully and wantonly. 210 ILCS 50/3.150(a) (West 2004). Thus, Park Ridge contends that the two statutes can be harmonized by reading the Tort Immunity Act as applying only to pretreatment matters and by reading the EMS Act as applying only once treatment has begun. In further support of this position, Park Ridge cites Antonacci v City of Chicago, 335 Ill. App. 3d 22, 779 N.E.2d 428 (2002). In Antonacci, plaintiff, as the special administrator of the estate of decedent, brought suit against the city alleging that 911 personnel willfully and wantonly mistreated decedent's heart attack, resulting in his death. Antonacci, 335 Ill. App. 3d at 24, 779 N.E.2d at 429. The circuit court granted the city's section 2-619 motion to dismiss on the basis of immunity under sections 6-105 and 6-106 of the Tort Immunity Act. Antonacci, 335 Ill. App. 3d at 24, 779 N.E.2d at 429. On appeal, plaintiff argued that the Tort Immunity Act did not apply because the paramedics had correctly diagnosed the decedent with a "heart attack" and had begun to treat him. Antonacci, 335 Ill. App. 3d at 28, 779 N.E.2d at 432. The city countered that "heart attack" was too vague and general a diagnosis to trigger liability and that the paramedics could not begin to treat the patient until they learned whether he was in asystole. Antonacci, 335 Ill. App. 3d at 28, 779 N.E.2d at 432. The appellate court in Antonacci began its analysis by addressing the scope of immunity

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No. 1-06-2116 under sections 6-105 and 6-106 of the Tort Immunity Act: "[I]f governmental medical personnel do not examine the patient, they are immunized. 745 ILCS 10/6-105 (West 2000). If they fail to make a diagnosis or fail to prescribe treatment or if they make an incorrect diagnosis, they are immunized. 745 ILCS 10/6-106(a) (West 2000). But negligent or wrongful prescribing of treatment that results in harm is not immunized. 745 ILCS 10/6106(c) (West 2000). Nor is there immunity for harm caused by a negligent or wrongful act or omission in administering the prescribed treatment after a correct diagnosis. 745 ILCS 10/6-106(d) (West 2000)." Antonacci, 335 Ill. App. 3d at 27, 779 N.E.2d at 431. The court then cited American National Bank & Trust Co. of Chicago v. County of Cook, 327 Ill. App. 3d 212, 220, 762 N.E.2d 654, 632 (2001), where it was stated with regard to immunity under the Tort Immunity Act: " 'Once diagnosis of a medical condition is made and treatment of the condition is prescribed and undertaken, any subsequent prescription or examination required to be made pursuant to that condition is part of the patient's treatment.' " Antonacci, 335 Ill. App. 3d at 28-29, 779 N.E.2d at 433, quoting American National Bank, 327 Ill. App. 3d at 220. The Antonacci court thus summarized: "In short, once the correct diagnosis is made and treatment for it is prescribed, all immunity bets are off." Antonacci, 335 Ill. App. 3d at 29, 779 N.E.2d at 433.

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No. 1-06-2116 In contrast, the court noted that where no correct diagnosis is made, failure to treat a patient's undiagnosed condition, or wrongly treating a misdiagnosed condition, will be immunized under the Tort Immunity Act. Antonacci, 335 Ill. App. 3d at 30, 779 N.E.2d at 43334, quoting Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 512, 732 N.E.2d 528, 539 (2000) (applying the Tort Immunity Act where " 'the gravamen of plaintiff's action against defendants is that defendants' failure either to perform examinations or to adequately perform examinations led to defendant's failure to diagnose Collins' breast cancer, which, in turn, proximately caused her death' "); Marby v. County of Cook, 315 Ill. App. 3d 42, 57, 733 N.E.2d 737, 748 (2000) (holding that county was immune for failing to treat a pulmonary embolism it had failed to diagnose); Carr v. Cook County Hospital, 323 Ill. App. 3d 184, 189, 751 N.E.2d 119, 122 (2001) (applying Tort Immunity Act where hospital failed to treat or diagnose a ruptured tendon). After completing its analysis of the scope of sections 6-105 and 6106, the Antonacci court decided to remand the case without ruling on the city's motion to dismiss, finding that the record was inadequate to determine whether the paramedics had reached a correct diagnosis which would then subject the city to liability for subsequent negligent treatment. Antonacci, 335 Ill. App. 3d at 31, 779 N.E.2d at 434. Park Ridge contends that here, unlike in Antonacci, it is absolutely clear that the EMTs and paramedics who responded to Lawrence's 911 call provided absolutely no treatment for Joseph and did not reach a diagnosis. Thus, according to Park Ridge, it is also clear that the Tort Immunity Act must apply to defeat plaintiff's claim. However, while we might be inclined to accept Park Ridge's position and find immunity in this case by exclusively applying the analysis

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No. 1-06-2116 of Antonacci, we note that neither Antonacci nor any of the cases cited in that case (see, e.g., Michigan Avenue National Bank, 191 Ill. 2d 493, 732 N.E.2d 528; Marby, 315 Ill. App. 3d 42, 733 N.E.2d 737; Carr, 323 Ill. App. 3d 184, 751 N.E.2d 119) addressed the EMS Act but, rather, were faced solely with the question of whether immunity under the Tort Immunity Act was applicable. In that regard, we note that Park Ridge's interpretation of the EMS Act's immunity provision

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