Antonacci v. City of Chicago

• Decision Date: 06 November 2002
• Docket Number: No. 1-01-3317.,1-01-3317.
• Citation: 268 Ill.Dec. 814,335 Ill. App.3d 22,779 N.E.2d 428
• Parties: Yvonne ANTONACCI, Individually and as Special Administrator of the Estate of James Antonacci, Deceased, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

779 N.E.2d 428

335 Ill. App.3d 22

268 Ill.Dec. 814

Yvonne ANTONACCI, Individually and as Special Administrator of the Estate of James Antonacci, Deceased, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.

No. 1-01-3317.

Appellate Court of Illinois, First District, Third Division.

November 6, 2002.

Howard Schaffner, Hofeld and Schaffner, Chicago, for Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Myriam Zreczny, of counsel), for Appellee.

Justice WOLFSON delivered the opinion of the court:

We inquire into the extent of statutory immunity given the City of Chicago where its paramedics allegedly failed to perform an EKG or defibrillation on a patient they had diagnosed as having had a heart attack.

The trial court decided in favor of immunity and granted the City's motion to dismiss the complaint. We conclude the trial court's decision was premature. We vacate the order dismissing the lawsuit and remand this cause for further proceedings.

FACTS

Plaintiff, Yvonne Antonacci, individually and as special administrator of the estate of James Antonacci, deceased, sued defendant, City of Chicago, alleging that 911 personnel willfully and wantonly mistreated plaintiff's decedent's heart attack, resulting in his death. Defendant filed a 2-619 Motion to Dismiss (735 ILCS 5/2-619 (West 2000)) in lieu of an answer, based on the immunity provisions of sections 10/6-105 and 10/6-106(a) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/6-105, 10/6-106(a) (West 2000).

Plaintiff filed a second amended complaint on May 3, 2001. She later attached a Physician's Report, pursuant to section 2-622(a)(1) of the Code of Civil Procedure. 735 ILCS 5/2-622(a)(1) (West 2000). No depositions were taken in this case. Defendant concedes in its brief on appeal the allegations in the Physician's Report are a part of the plaintiff's complaint. We look to the second amended complaint and the Physician's Report attached to it for the facts of this case.

The complaint alleged on October 5, 2000, plaintiff's decedent suffered a heart attack¹ at his home in Chicago. Plaintiff called 911 and requested an emergency vehicle be dispatched to the home. After two telephone calls to the 911 system, an emergency vehicle with 911 personnel arrived at the home. On arrival, the 911 personnel "began treating plaintiff's decedent," at which time he had a pulse and a heartbeat. Knowing that plaintiff's decedent required defibrillation² to regulate his heartbeat and failure to defibrillate was likely to result in death or great bodily injury, the paramedics "intentionally and knowingly refused to defibrillate plaintiff's decedent."

The complaint also alleged the 911 personnel refused to run an EKG³ strip on plaintiff's decedent, knowing such a strip was necessary to determine his cardiac rhythm. The 911 personnel knew failure to make this determination would make it impossible to properly determine the course of treatment, creating a strong risk of death or great bodily harm.

Count I of the complaint alleged as a direct and proximate result of the defendant's willful and wanton acts and/or omissions, plaintiff's decedent sustained injuries resulting in his death on October 5, 2000. Count II alleged as a result of defendant's actions and/or omissions, plaintiff's decedent suffered injuries which caused him conscious pain and suffering, and disability and disfigurement before his death on October 5, 2000.

In the Physician's Report attached to the complaint, the physician states his opinion, based on a review of medical records, that plaintiff's decedent suffered a myocardial infarction. The 911 paramedics who responded correctly diagnosed that he had suffered a heart attack and began treating him for that condition. The standard of practice for treatment of a heart attack would be electronic defibrillation unless the performance of an EKG confirmed the patient was in asystole.⁴ The EKG is the only way the paramedics could have determined if the heart attack suffered by the patient would be refractory⁵ to defibrillation because of the presence of asystole.

While the paramedic records contain a statement that an EKG was performed and the patient was in asystole, there are no strips or evidence in the record to confirm an EKG actually was performed. Witnesses present at the scene say no EKG was performed. In the physician's opinion, the paramedics deviated from accepted standards of medical practice in failing to perform an EKG and in failing to defibrillate the patient. The physician's report concludes by stating if the patient had been treated in compliance with accepted standards of medical care, he would have survived the heart attack he suffered.

In response to the complaint, defendant filed a section 2-619 Motion to Dismiss. 785 ILCS 5/2-619 (West 2000). In the motion, defendant contended plaintiff's claims were barred by sections 6-105 and 6-106(a) of the Tort Immunity Act.⁶ 745 ILCS 10/6-105, 10/6-106(a) (West 2000).

Section 6-105 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 2000).

Section 6-106 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.

(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 2000).

The trial court entered a memorandum opinion and order granting defendant's 2-619 motion to dismiss. In its opinion, the court found the allegations with regard to the failure to perform an EKG were, essentially, a failure to perform an adequate physical examination test, immunized by section 6-105 of the Tort Immunity Act. Further, failure to perform an EKG is immunized by section 6-106 because plaintiff alleged the EKG was required in order to diagnose the decedent's condition of asystole. Section 6-106 also immunizes failure to defibrillate, according to the opinion, because it provides immunity from liability for the failure to prescribe treatment for a medical condition.

DECISION

We are dealing with a statute that rewards medical indolence and miscalculation resulting in harm to a patient. That is, if 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 10/6-106(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).

Our task is to determine where in the statutory scheme the plaintiffs allegations fit.

All we have before us are the plaintiffs complaint and the Physician's Report. The City's section 2-619 motion to dismiss admits the complaint is legally sufficient, but asserts an affirmative defense which defeats the claim. See Cosman v. Ford Motor Company, 285 Ill.App.3d 250, 254, 220 Ill.Dec. 790, 674 N.E.2d 61 (1996). The trial court's dismissal presents a question of law, so we will conduct a de novo review. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). We are required to accept as true all well-pleaded facts in the plaintiff's complaint. Board of Managers of the Village Centre Condominium Ass'n, Inc. v. Wilmette Partners, 198 Ill.2d 132, 134, 260 Ill.Dec. 203, 760 N.E.2d 976 (2001).

When we determine whether the Tort Immunity Act applies, we bear in mind certain basic principles. The Tort Immunity Act governs whether and in what situations local governmental units are immune from civil liability. Epstein v. Chicago Board of Education, 178 Ill.2d 370, 375, 227 Ill.Dec. 560, 687 N.E.2d 1042 (1997). The Act is in derogation of the common law and we must strictly construe it against the City. Snyder v. Curran Township, 167 Ill.2d 466, 477, 212 Ill.Dec. 643, 657 N.E.2d 988 (1995).

The City would be liable in tort for the same reasons private tortfeasors would be liable, unless the Tort Immunity Act or some other statute imposes conditions on that liability. See Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 345, 230 Ill.Dec. 11, 692 N.E.2d 1177 (1998).

Our primary goal in this...