Meck v. Paramedic Services of Illinois

FIRST DIVISION
MAY 26, 1998


No. 1-97-0275

SUSAN MECK, Indiv. and on Behalf of the
Estate of Roy Meck, Deceased,

Plaintiff-Appellant,

v.

PARAMEDIC SERVICES OF ILLINOIS and CITY
OF BERWYN,

Defendant-Appellees.)
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)
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)Appeal from the
Circuit Court of
Cook County

93 L 4313

Honorable
Philip L. Bronstein,
Judge Presiding.


JUSTICE O'MARA FROSSARD delivered the opinion of the court:
The issue on appeal is whether the trial court, in granting
summary judgment in favor of the defendants, correctly rejected
application of the lost chance doctrine. Under the lost chance
doctrine, proximate causation exists if plaintiff can show to a
reasonable degree of medical certainty that defendant's conduct
proximately increased the risk of harm or lost chance of
recovery. Holton v. Memorial Hospital, 176 Ill. 2d 95, 119, 679 N.E.2d 1202 (1997).
Defendants prevailed on mirror motions for summary judgment.
The only argument raised by each defendant was that plaintiff
could not prove proximate causation as a matter of law because
Roy Meck had less than a 50% chance of surviving his heart attack
absent the alleged misconduct of the defendants.
Plaintiffs contend that summary judgment must be reversed
because, after the judgment in defendants' favor, the Illinois
Supreme Court in Holton v. Memorial Hospital reconciled the
traditional concept of proximate causation with the lost chance
doctrine and held that the lost chance doctrine does not lower
plaintiff's burden of proving causation. Holton, 176 Ill. 2d at
119.
The Holton case reviewed application of the lost chance
doctrine in the context of a request by defendant to reverse the
judgment entered upon the jury's verdict alleging that the
plaintiffs failed to establish that the conduct of the defendant
proximately caused plaintiff's injuries. Although unlike Holton,
in this case we review application of the lost chance doctrine in
the context of a summary judgment motion, we find Holton
instructive.
The lost chance doctrine as applied in Holton recognizes
that proximate causation in a medical malpractice case exists if
plaintiff can show that defendant's malpractice, to a reasonable
degree of medical certainty, proximately caused the increased
risk of harm or lost chance of recovery to the injured party.
Holton, 176 Ill. 2d at 119.
Applying the reasoning of the Holton case, we find there is
a genuine issue of material fact as to whether defendants'
alleged willful and wanton conduct proximately caused the death
of Mr. Meck. We believe this issue raises questions that should
be resolved by the trier of fact. We hold that to sustain the
burden of proving proximate cause, a plaintiff is not required to
establish that the decedent had a greater than 50% chance of
survival absent the defendant's alleged misconduct. We emphasize
this application of the lost chance doctrine does not relax or
lower plaintiff's burden of proving causation.
For the reasons that follow, we find that the trial court
erred in granting defendants' motions for summary judgment and we
reverse and remand for further action consistent with this
opinion.

I. FACTS
On the morning of March 14, 1993, Roy Meck, age 36, suffered
cardiac arrest in his home in Berwyn. Mrs. Meck immediately
telephoned for help from her neighbors, Maureen and Paul Gardner.
Mrs. Gardner is a registered, intensive-care unit (ICU) nurse at
MacNeal Hospital and is certified in advanced cardiac life
support (ACLS). Mr. Gardner is a Berwyn fire fighter who is
certified in cardiopulmonary resuscitation (CPR). Mr. and Mrs.
Gardner rushed to the Meck home to find Mr. Meck lying on the
floor in the kitchen. Mr. Gardner called 9-1-1.
Mr. Meck's face was blue, he had no pulse, no chest
movement, no sign of breathing and his mouth was full of vomit.
The Gardners cleared the vomit from Mr. Meck's mouth and began
CPR within approximately one minute of the cardiac arrest. They
checked twice for a pulse, but at no point from the time they
started CPR until defendants arrived 12 or 13 minutes later did
they detect a pulse or independent ventilations.
The City of Berwyn had three ambulances on March 14, 1993.
Unit 95 and Unit 96 were advanced life support vehicles, each of
which was staffed by two paramedics employed by Paramedic
Services of Illinois (PSI). Unit 97 was a basic life support
vehicle and was staffed by emergency medical technicians (EMTs)
employed by the City of Berwyn.
Berwyn EMT Unit 97 and PSI Unit 95 arrived minutes after
receiving Mr. Gardner's call. The Berwyn EMTs arrived first.
PSI paramedics arrived 28 seconds later.
The EMTs found Mr. Meck lying on the kitchen floor of his
home. When they arrived, the Gardners were already administering
CPR to decedent. Defendants state that at this time Mr. Meck was
in cardiac arrest, unconscious and "unresponsive." He had no
pulse, no blood pressure and was not breathing. His pupils were
dilated and his skin was blue in color. The paramedics estimated
that Mr. Meck's "downtime" had already been 5 to 10 minutes by
the time they arrived.
The PSI paramedics stated they defibrillated Roy Meck within
seven minutes of his collapse, intubated him and were able to
establish a pulse and blood pressure. PSI transported him to
MacNeal Hospital with a normal pulse and normal sinus rhythm.
However, although Mr. Meck's heart was resuscitated and he was
delivered to the hospital alive and with a normal pulse, by the
time he arrived at MacNeal he had suffered severe neurological
damage. Mr. Meck began to have seizures and died four days
later.
Plaintiff's fourth amended complaint contains six counts,
all of which allege willful and wanton misconduct on the part of
defendants. Count I alleges willful and wanton misconduct of PSI
under the Wrongful Death Act (740 ILCS 180/1 et seq. (West
1996)). Count II alleges willful and wanton conduct on the part
of PSI under the Survival Act (755 ILCS 5/27-6 (West 1996)).
Count III alleges willful and wanton conduct on the part of PSI
under the Rights of Married Persons Act (Family Expense Act) (750
ILCS 65/15 (West 1996)). Count IV alleges willful and wanton
misconduct of the City of Berwyn under the Wrongful Death Act.
Count V alleges willful and wanton misconduct on the part of the
City of Berwyn under the Survival Act. Count VI alleges willful
and wanton misconduct of the City of Berwyn under the Family
Expense Act.
Plaintiff argues that the paramedics and EMTs violated their
respective standards of care by, inter alia, willfully and
wantonly engaging in the following misconduct or actions
inconsistent with their training: (1) failing to provide oxygen;
(2) failing to use an appropriate stretcher; (3) failing to use
suction; (4) failing to provide basic CPR; (5) defibrillating Mr.
Meck only once before intubation; (6) failing to administer
enough Epinephrine; and (7) failing to perform CPR with two hands.
Defendants PSI and the City of Berwyn filed mirror motions
for summary judgment on the issue of proximate cause. Both
defendants claimed that plaintiff could not prove proximate cause
as a matter of law because Mr. Meck, having collapsed from
cardiac arrest at home, did not have a greater than 50% chance of
survival absent the alleged misconduct of defendants.
On September 10, 1996, the trial court granted defendants'
motions for summary judgment without opinion. On December 13,
1996, the trial court denied plaintiff's motion for
reconsideration without opinion. Plaintiff appeals from both
orders.

II. STANDARD OF REVIEW
A motion for summary judgment is to be granted "if the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." 735 ILCS 5/2-1005(c)(West 1996). A court
must construe the evidence against the movant and liberally in
favor of the opponent of the motion. Wells v. Enloe, 282 Ill.
App. 3d 586, 589, 669 N.E.2d 368 (1996). Summary judgment is a
drastic means of disposing of litigation, so the right of the
moving party to obtain summary judgment must be clear and free of
doubt. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627 (1994). Where doubt exists, the wiser
judicial policy is to permit resolution of the dispute by a
trial. Jackson Jordan, Inc., 158 Ill. 2d at 249.
In appeals from an order granting summary judgment, a
reviewing court examines the record de novo. Jewish Hospital of
St. Louis v. Boatmen's National Bank, 261 Ill. App. 3d 750, 755,
633 N.E.2d 1267 (1994). If the reviewing court determines that
there is a genuine issue of material fact, then the summary
judgment is to be overturned. Wells, 282 Ill. App. 3d at 589.

III. ANALYSIS
As a preliminary matter, we note that the Illinois Emergency
Medical Services (EMS) Systems Act (Act) protects paramedics and
emergency medical technicians from claims of mere negligence.
210 ILCS 50/3.150 (West 1996). However, the Act specifically
authorizes suits for willful and wanton misconduct and acts or
omissions inconsistent with the person's training. The Act in
effect during the 1993 events involved in this case provided, in
relevant part, as follows:
"(a) Any person, agency or governmental body licensed
or authorized pursuant to this Act or its rules, who in good
faith provides life support services *** in an emergency
shall not be civilly or criminally liable as a result of
their acts or omissions in providing such services unless
such acts or omissions *** are inconsistent with the
person's training or constitute willful or wanton
misconduct." 210 ILCS 50/17 (West 1992).
The record reflects that the parties agree the Act applies
to the case at hand. As such, this is an action for willful and
wanton misconduct rather than ordinary negligence. An act is
willful or wanton if it is intentional or if it is committed
under circumstances exhibiting a reckless disregard for the
safety of others. Affatato v. Jewel Cos., 259 Ill. App. 3d 787,
632 N.E.2d 137 (1994).
The issue on appeal is whether summary judgment was properly
granted on the sole basis argued by each defendant that plaintiff
could not prove proximate causation as a matter of law because
the decedent had a 50% chance or less of surviving his heart
attack absent the alleged misconduct of the defendant. Defendants
contend the trial court properly granted summary judgment because
plaintiff had not established it was "more probably true than
not" that the defendants' negligence was a proximate cause of Mr.
Meck's injury.
Plaintiff contends that the trial court erred in its
determination that summary judgment is appropriate unless a
plaintiff can prove that he or she had greater than a 50% chance
of survival absent the defendants' misconduct. Plaintiff's
argument in the trial court followed the line of cases that adopt
the loss of chance or lost chance doctrine. As applied to a
medical malpractice action, the lost chance doctrine refers to
the injury sustained by a plaintiff whose medical providers are
alleged to have negligently deprived the plaintiff of a chance to
survive or recover from a health problem, or where the
malpractice has lessened the effectiveness of treatment or
increased the risk of an unfavorable outcome to the plaintiff.
Holton, 176 Ill. 2d at 119.
The lost chance doctrine is based on the standard
articulated in the Restatement (Second) of Torts, section 323
(1965):
"One who undertakes *** to render services to another which
he should recognize as necessary for the protection of the
other's person *** is subject to liability to the other for
physical harm from his failure to exercise reasonable care
to perform his undertaking, if
(a) his failure to exercise such care increases the
risk of such harm." Restatement (Second) of Torts, 323
(1965).
The first case in Illinois to discuss proximate causation
in the context of the lost chance doctrine and apply this
Restatement section was Northern Trust Co. v. Louis A. Weiss
Memorial Hospital, 143 Ill. App. 3d 479, 487, 493 N.E.2d 6
(1986):
" Evidence which shows to a reasonable certainty that
negligent delay in diagnosis or treatment *** lessened the
effectiveness of treatment is sufficient to establish
proximate cause. " Northern Trust Co., 143 Ill. App. 3d at
487-88, quoting James v. United States, 483 F. Supp. 581,
585 (N.D. Cal. 1980).
Under the lost chance doctrine, a plaintiff may seek damages
resulting from a health care provider's negligent treatment even
though the patient's chance of recovering from the existing
illness or injury may be less than 50%. Chambers v. Rush-
Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458,
463-65, 508 N.E.2d 426 (1987). "[O]nce it has been shown that a
defendant's negligence increased the risk of harm to plaintiff,
and that the harm was actually sustained, it then becomes a jury
question as to whether the increased risk was a substantial
factor in producing the harm." Chambers, 155 Ill. App. 3d at
464.
More recently, in Hajian v. Holy Family Hospital, 273 Ill.
App. 3d 932, 652 N.E.2d 1132 (1995), the court noted its support
for the lost chance doctrine as articulated in Pumala v. Sipos,
163 Ill. App. 3d 1093, 517 N.E.2d 295 (1987), which held a
plaintiff's evidence must show, to a reasonable degree of medical
certainty that the negligent delay in diagnosis or treatment
lessened the effectiveness of the treatment in order to establish
proximate cause. Hajian, 273 Ill. App. 3d at 939. See also
Galvin v. Olysav, 212 Ill. App. 3d 399, 403, 571 N.E.2d 218
(1991).
In contrast, defendants' argument in the trial court relied
on cases that rejected the lost chance doctrine. These cases
held that the lost chance doctrine relaxed the traditional
proximate cause standard by allowing the causation issue to go to
a jury where there was no evidence of a reasonable probability
that the defendant's negligence caused the plaintiff's injury.
Hare v. Foster G. McGaw Hospital, 192 Ill. App. 3d 1031, 1038,
549 N.E.2d 778 (1989).
In Hare, the court indicated that to establish proximate
cause in a wrongful death suit, the plaintiff must show:
"[T]he patient would more probably than not have survived
if he had been treated properly. If the patient would
probably have died from the underlying illness, then it was
the illness and not the doctor's malpractice which caused
the death. Therefore, a patient whose doctor's malpractice
deprived him of a 49% chance of surviving his illness would
be denied recovery on the basis that it was more probable
than not that he died from the illness. On the other hand,
a patient deprived by malpractice of a 51% chance of
survival would recover the full extent of damages for the
death because it was more probable than not that the
malpractice caused the death." Hare, 192 Ill. App. 3d at
1035-36.
See also Netto v. Goldenberg, 266 Ill. App. 3d 174, 182, 640 N.E.2d 948, 954 (1994) ("Essentially the Northern Trust Co. and
Chambers courts removed the proximate cause element from medical
negligence actions"); Russell v. Subbiah, 149 Ill. App. 3d 268,
271, 500 N.E.2d 138, 139-41 (1986) (affirmed summary judgment
where the plaintiff's expert indicated that, with earlier
diagnosis by the defendant, plaintiff would have had a 50/50
chance of full recovery in a brief period of time, rather than
the lengthy 24-month recovery experienced).
Under the line of cases relied upon by defendants in the
trial court, a plaintiff's estimated chance of surviving or
recovering from an existing illness or injury must be greater
than 50% in order for plaintiff to be able to establish the
defendant's conduct proximately caused injury. On this basis,
the trial court in the present case granted defendants' motions
for summary judgment on September 10, 1996. However, on April
17, 1997, the Illinois Supreme Court in the Holton case
harmonized the traditional concept of proximate causation with
the lost chance doctrine.
In Holton, the trial court denied defendant's motion for
judgment notwithstanding the verdict. The plaintiff contended
that the failure of defendant's nursing staff to accurately
report the progression of her decline into paresis was a
proximate cause of her paralysis. The evidence at trial revealed
that the plaintiff went to the hospital complaining of numbness
below the waist and tingling in her leg. The next day she
noticed increasing difficulty in moving her leg. She reported
this to the attending nurses and aides, who failed to notify a
doctor. The neurosurgeon on call testified that if he had been
informed of the plaintiff's change of condition, he would have
come to the hospital immediately and he would have had enough
time to make a proper diagnosis and ease the pressure on the
spinal cord.
The supreme court in Holton held that the loss of chance
concept, when properly analyzed, does not relax or lower
plaintiff's burden of proving causation. The court reaffirmed
the standard for proximate cause found in Borowski v. Von
Solbrig, 60 Ill. 2d 418, 424, 328 N.E.2d 301 (1975). In
Borowski, the Illinois Supreme Court rejected the defendant's
argument that the plaintiff should be required to prove that had
the defendant not been negligent, a better result would have
occurred.
At issue in Borowski was whether plaintiff's leg amputation
was caused by defendant's failure to treat a circulatory problem
in his leg that occurred after treatment for fracture to the leg
from a car crash. The court, in concluding that to require the
plaintiff to prove a "better result" would inject too many
collateral issues into a malpractice trial, stated: "It is
unnecessary to extend the burden-of-proof requirements of a
medical malpractice case beyond those of an ordinary negligence
case by adding the further requirement that the plaintiff prove a
better result would have been achieved absent the alleged
negligence of the doctor." Borowski, 60 Ill. 2d at 424.
The supreme court in Holton discussed the Borowski standard
and noted that applying the loss of chance doctrine does not
relax or lower plaintiff's burden of proving causation:
"We reaffirm the Borowski holding. The traditional
statement of proximate cause requires plaintiff to prove
that defendant's negligence 'more probably than not' caused
plaintiff's injury. The 'better result test' is not a part
of plaintiff's burden of proof." Holton, 176 Ill. 2d at
107.
While this standard accurately reflects a plaintiff's burden
of proof at trial, it does not accurately set forth a plaintiff's
burden on a summary judgment motion. Gatlin v. Ruder, 137 Ill. 2d 284, 292-93, 560 N.E.2d 586 (1990). The purpose of a summary
judgment proceeding "is not to try an issue of fact but rather to
determine whether there is an issue of fact to be tried." Beverly
Bank v. Alsip Bank, 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598
(1982). A motion for summary judgment can only succeed "if the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." 735 ILCS 5/2-1005(e) (West 1996); see
Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986);
Gatlin, 137 Ill. 2d at 293. Where as in this case there are no
depositions, reports or affidavits other than those of
plaintiff's witnesses, summary judgment for defendant would be
proper only if plaintiff failed to demonstrate an ability to
offer evidence at trial on the proximate cause of his injury.
Purtill v. Hess, 111 Ill. 2d at 229.
Plaintiff asserts that, in light of Holton, the evidence has
established a genuine issue of material fact as to whether
defendants proximately caused Mr. Meck's injuries and death.
Defendants attempt to distinguish Holton by arguing that this is
a case of first impression as Mr. Meck was dead before defendants
reached him; therefore, the harm defendants were to guard against
had already occurred and any chance Mr. Meck had at survival was
already lost. Defendants contend that, absent defibrillation by
the paramedics, Mr. Meck could not have been resuscitated. Thus,
defendants' argument suggests that if Mr. Meck's chance of
survival was zero percent absent intervention by the defendants,
the conduct of the defendants could not have deprived Mr. Meck of
any chance of survival because he was already deceased.
We note that defendants' contention that Mr. Meck was dead
is contradicted by the fact that Mr. Meck was revived,
transported to the hospital alive, and lived for four days. We
reject defendants' further argument that they could not be held
responsible for alleged misconduct because Mr. Meck's odds of
survival when EMTs and paramedics arrived were not sufficiently
high for defendants' actions to be causally related to his death.
As noted by the supreme court in Holton, "[d]isallowing tort
recovery***on the theory that the patient was already too ill to
survive or recover may operate as a disincentive on the part of
health care providers to administer quality medical care to
critically ill or injured patients." Holton, 176 Ill. 2d at 119.
Defendants' argument further ignores evidence from the
report of plaintiff's expert and treating physician, Dr. Babos:
"Roy Meck could have had an excellent chance of
recovery***he went on to have severe neurological damage,
status epilepticus and eventual death because the EMTs and
Paramedics***grossly mismanaged this patient from start to
finish."
Proximate cause is clearly an issue of material fact and
"summary judgment cannot be entered" on the question of causation
because it is preeminently a question of fact. Gatlin, 137 Ill. 2d at 293. Further, the question of whether a defendant's
misconduct is a proximate cause of a plaintiff's injury or death
is generally one to be determined by the trier of fact. Holton,
176 Ill. 2d at 107.
Applying the standard established by statute and reaffirmed
by the supreme court, we hold there is a genuine issue of
material fact as to whether defendants' alleged willful and
wanton conduct proximately caused the death of Mr. Meck. An
issue of material fact regarding defendants' conduct was
established from the totality of the evidence presented by during
the summary judgment proceeding.
We recognize that the trial court did not have the benefit
of the Holton opinion when it granted defendants' motions for
summary judgment. However, in light of the recent holding in
Holton, we find that the trial court erred in granting summary
judgment based on defendants' argument that plaintiff could not
demonstrate proximate causation as a matter of law because Roy
Meck had a 50% chance or less of surviving his heart attack
absent the alleged misconduct of the defendants.
The statistical probability of Mr. Meck's survival is not
relevant to the question of whether defendants' conduct caused
injury or death. It may be relevant to the degree of injury or
amount of damages, but that issue is for the trier of fact and
cannot be determined as a matter of law at the summary judgment
stage of the proceeding.
"'Not allowing such a case to be decided by a jury means
that statistical proof of a less than 50% chance would be
dispositive, even though no expert in the world could
prospectively state who would survive and who would die. That is
why doctors treat all patients, not just those with better than
even odds.'" Holton, 176 Ill. 2d at 120, quoting T. Lavin & G.
Ziebell, Lost Chance of Survival: Is it a Lost Cause in
Illinois?, 84 Ill. B.J. 458, 462 (1996).
For the foregoing reasons, we find that the trial court
erred in granting defendants' motions for summary judgment and we
reverse and remand for further action consistent with this
opinion.
Reversed and remanded.
BUCKLEY, P.J., and GALLAGHER, J., concur.