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THIRD DIVISION

November 6, 2002

No. 1-01-3317

JUSTICE WOLFSON delivered the opinion of the court:

We inquire into the extent of statutory immunity given theCity of Chicago where its paramedics allegedly failed to performan EKG or defibrillation on a patient they had diagnosed ashaving had a heart attack.

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

FACTS

Plaintiff, Yvonne Antonacci, individually and as specialadministrator of the estate of James Antonacci, deceased, sueddefendant, City of Chicago, alleging that 911 personnel willfullyand wantonly mistreated plaintiff's decedent's heart attack,resulting in his death. Defendant filed a 2-619 Motion toDismiss (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 TortImmunity 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. Defendantconcedes in its brief on appeal the allegations in thePhysician's Report are a part of the plaintiff's complaint. Welook to the second amended complaint and the Physician's Reportattached to it for the facts of this case.

The complaint alleged on October 5, 2000, plaintiff'sdecedent suffered a heart attack⁽¹⁾ at his home in Chicago. Plaintiff called 911 and requested an emergency vehicle bedispatched to the home. After two telephone calls to the 911system, an emergency vehicle with 911 personnel arrived at thehome. On arrival, the 911 personnel "began treating plaintiff'sdecedent," at which time he had a pulse and a heartbeat. Knowingthat plaintiff's decedent required defibrillation⁽²⁾ to regulatehis heartbeat and failure to defibrillate was likely to result indeath or great bodily injury, the paramedics "intentionally andknowingly refused to defibrillate plaintiff's decedent."

The complaint also alleged the 911 personnel refused to runan EKG⁽³⁾ strip on plaintiff's decedent, knowing such a strip wasnecessary to determine his cardiac rhythm. The 911 personnel knew failure to make this determination would make it impossibleto properly determine the course of treatment, creating a strongrisk of death or great bodily harm.

Count I of the complaint alleged as a direct and proximateresult of the defendant's willful and wanton acts and/oromissions, plaintiff's decedent sustained injuries resulting inhis death on October 5, 2000. Count II alleged as a result ofdefendant's actions and/or omissions, plaintiff's decedentsuffered 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, thephysician states his opinion, based on a review of medicalrecords, that plaintiff's decedent suffered a myocardialinfarction. The 911 paramedics who responded correctly diagnosedthat he had suffered a heart attack and began treating him forthat condition. The standard of practice for treatment of aheart attack would be electronic defibrillation unless theperformance of an EKG confirmed the patient was in asystole.⁽⁴⁾ The EKG is the only way the paramedics could have determined ifthe heart attack suffered by the patient would be refractory⁽⁵⁾ todefibrillation because of the presence of asystole.

While the paramedic records contain a statement that an EKGwas performed and the patient was in asystole, there are nostrips or evidence in the record to confirm an EKG actually wasperformed. Witnesses present at the scene say no EKG wasperformed. In the physician's opinion, the paramedics deviatedfrom accepted standards of medical practice in failing to performan EKG and in failing to defibrillate the patient. Thephysician's report concludes by stating if the patient had beentreated in compliance with accepted standards of medical care, hewould have survived the heart attack he suffered.

In response to the complaint, defendant filed a section 2-619 Motion to Dismiss. 735 ILCS 5/2-619 (West 2000). In themotion, defendant contended plaintiff's claims were barred bysections 6-105 and 6-106(a) of the Tort Immunity Act.⁽⁶⁾ 745 ILCS10/6-105, 10/6-106(a) (West 2000).

Section 6-105 states:

"Neither a local public entity nor a publicemployee acting within the scope of hisemployment is liable for injury caused by thefailure to make a physical or mentalexamination, or to make an adequate physicalor mental examination of any person for thepurpose of determining whether such personhas a disease or physical or mental conditionthat would constitute a hazard to the healthor safety of himself or others." 745 ILCS10/6-105 (West 2000).

Section 6-106 states:

"(a) Neither a local public entity nor apublic employee acting within the scope ofhis employment is liable for injury resultingfrom diagnosing or failing to diagnose that aperson is afflicted with mental or physicalillness or addiction or from failing toprescribe for mental or physical illness oraddiction.

(b) Neither a local public entity nor apublic employee acting within the scope ofhis employment is liable for administeringwith due care the treatment prescribed formental or physical illness or addiction.
(c) Nothing in this section exonerates apublic employee who has undertaken toprescribe for mental or physical illness oraddiction from liability for injuryproximately caused by his negligence or byhis wrongful act in so prescribing orexonerates a local public entity whoseemployee, while acting in the scope of hisemployment, so causes such an injury.
(d) Nothing in this section exonerates apublic employee from liability for injuryproximately caused by his negligent orwrongful act or omission in administering anytreatment prescribed for mental or physicalillness or addiction or exonerates a localpublic entity whose employee, while acting inthe scope of his employment, so causes suchan injury." 745 ILCS 10/6-106 (West 2000).

The trial court entered a memorandum opinion and ordergranting defendant's 2-619 motion to dismiss. In its opinion,the court found the allegations with regard to the failure toperform an EKG were, essentially, a failure to perform anadequate physical examination test, immunized by section 6-105 ofthe Tort Immunity Act. Further, failure to perform an EKG isimmunized by section 6-106 because plaintiff alleged the EKG wasrequired in order to diagnose the decedent's condition ofasystole. Section 6-106 also immunizes failure to defibrillate,according to the opinion, because it provides immunity fromliability for the failure to prescribe treatment for a medicalcondition.

DECISION

We are dealing with a statute that rewards medical indolenceand miscalculation resulting in harm to a patient. That is, ifgovernmental medical personnel do not examine the patient, theyare immunized. 745 ILCS 10/6-105 (West 2000). If they fail tomake a diagnosis, or fail to prescribe treatment, or if they makean incorrect diagnosis, they are immunized. 745 ILCS 10/6-106(a)(West 2000). But negligent or wrongful prescribing of treatmentthat results in harm is not immunized. 745 ILCS 10/6-106(c)(West 2000). Nor is there immunity for harm caused by anegligent or wrongful act or omission in administering theprescribed treatment afer a correct diagnosis. 745 ILCS 10/6-106(d) (West 2000).

Our task is to determine where in the statutory scheme theplaintiff's allegations fit.

All we have before us are the plaintiff's complaint and thePhysician's Report. The City's section 2-619 motion to dismissadmits the complaint is legally sufficient, but asserts anaffirmative defense which defeats the claim. See Cosman v. FordMotor Company, 285 Ill. App. 3d 250, 254, 674 N.E.2d 61 (1996). The trial court's dismissal presents a question of law, so wewill conduct a de novo review. Kedzie & 103^rd Currency Exchange,Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993). Weare required to accept as true all well-pleaded facts in theplaintiff's complaint. Board of Managers of the Village CenterCondominium Ass'n, Inc. v. Wilmette Partners, 198 Ill. 2d 132,134, 760 N.E.2d 976 (2001).

When we determine whether the Tort Immunity Act applies, webear in mind certain basic principles. The Tort Immunity Actgoverns whether and in what situations local governmental unitsare immune from civil liability. Epstein v. Chicago Board ofEducation, 178 Ill. 2d 370, 375, 687 N.E.2d 1042 (1997). The Actis in derogation of the common law and we must strictly construeit against the City. Snyder v. Curran Township, 167 Ill. 2d 466,477, 657 N.E.2d 988 (1995).

The City would be liable in tort for the same reasonsprivate tortfeasors would be liable, unless the Tort Immunity Actor some other statute imposes conditions on that liability. SeeHarinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d335, 345, 692 N.E.2d 1177 (1998).

Our primary goal in this case is to ascertain and giveeffect to the intention of the legislature. Barnett v. Zion ParkDistrict, 171 Ill. 2d 378, 388, 665 N.E.2d 808 (1996). We cannotdepart from the plain language of the Tort Immunity Act byreading into it exceptions, limitations, or conditions thatconflict with express legislative intent. Barnett, 171 Ill. 2dat 389. Our duty is to apply the statute as written and as ourprecedent dictates. Easily said, but not so easy in theapplication where the conduct of paramedics in a patient's homeunder emergency conditions is at issue.

Plaintiff's complaint and Physician's Report allege theparamedics correctly diagnosed the decedent with a "heart attack"and began to "treat" him. That is, contends the plaintiff, oncethere was a correct diagnosis, the omissions that followed--noEKG test, no defibrillation--were not immunized by the TortImmunity Act, even though the EKG was a required test todetermine whether the patient was in asystole, thus makingdefibrillation useless. Plaintiff relies on section 6-106(d).

The City's position is that "heart attack" is too vague andgeneral a diagnosis to trigger liability. That is, contends theCity, the paramedics could not begin to treat the patient untilthey learned whether he was in asystole. That would be done byconducting an EKG test. An EKG is a diagnostic tool, not amethod of treatment. Defibrillation might or might not then berequired. It follows, then, says the City, no "treatment" wasprescribed or begun. That means plaintiff's claim, at most,amounts to a failure to diagnose or failure to prescribe, fullyimmunized under section 6-106(a), or a failure to conduct anexamination, immunized by section 6-105 no matter when it occurs.

Both sides claim support in the reported decisions.

Plaintiff relies almost entirely on our decision in AmericanNational Bank & Trust Company of Chicago v. County of Cook, 327Ill. App. 3d 212, 762 N.E.2d 654 (2001). There, the mother'sdoctor determined her unborn child was in a transverse lie, aposition that could result in asphyxia to the child. Over thenext several weeks, the mother saw another doctor employed by thedefendant. The complaint alleged the second doctor was negligentin failing to perform an ultrasound or stress test to learnwhether the baby's position had changed, failing to performexternal manipulation to change the baby's position, and inattempting natural delivery, which resulted in brain damage tothe child.

The trial court held the Tort Immunity Act applied andgranted summary judgment for the County, but we reversed andremanded. We held:

"Once diagnosis of a medical condition is made and treatment of the condition is prescribed andundertaken, any subsequent prescription or examination required to be made pursuant to that condition is part of the patient's treatment." AmericanNational Bank,327 Ill. App. 3d at 220.

We applied the same provision plaintiff relies on in thiscase, section 6-106(d). The correct diagnosis had been made atthe hospital; there could be no immunity for actions that takeplace or are omitted in the course of administering theprescribed treatment based on that correct diagnosis. Thatabsence of immunity applies to an incorrect subsequentprescription or examination or to a prescription, examination, ortreatment that did not take place at all. In short, once thecorrect diagnosis is made and treatment for it is prescribed, allimmunity bets are off.

American National Bank is the reason why the plaintiff inthis case emphasizes her claim that the paramedics correctlydiagnosed decedent's heart attack. There and here, contends theplaintiff, the correct diagnosis had been made and neither therequired treatment nor the required testing was done. Therefore,no immunity.

The City contends the correct approach to "diagnosis" and"treatment" is contained in Michigan Avenue National Bank v.County of Cook, 191 Ill. 2d 493, 732 N.E.2d 528 (2000). There,plaintiff's decedent visited Cook County Hospital several timesfrom September 1986 to February 1987 concerning lumps and pain inher breast. In October 1986, she was diagnosed with fibrocysticbreast disease and advised to return for follow-up appointments. In July 1988, she was diagnosed with breast cancer and died of itin November 1989.

The complaint against the County and its doctors allegedthey were negligent for failing to order a mammogram, failing toadequately perform examinations, and failing to administer propermedical care. Michigan Avenue National Bank, 191 Ill. 2d at 499-500.

The trial court granted summary judgment based on the TortImmunity Act. The appellate court affirmed. See 306 Ill App. 3d392, 714 N.E.2d 1010 (1999). The supreme court affirmed theappellate court.

The court found the terms "diagnosis" and "treatment" asused in section 6-106 must be given their plain and ordinarymeaning, to be found in dictionaries. "Diagnosis," among otherthings, is "the art or act of identifying a disease from itssigns and symptoms," and an "investigation or analysis of thecause or nature of a condition, situation, or problem." MichiganAvenue National Bank, 191 Ill. 2d at 510. "Treatment," amongother things, is "the action or manner of treating a patientmedically or surgically," and "[t]he management and care of apatient for the purpose of combating disease or disorder." Michigan Avenue National Bank, 191 Ill. 2d at 511-12.

Thus armed, the court held:

"Because the gravamen of plaintiff's action against defendants is that defendants' failure either to perform examinations or toadequately perform examinations led to defendant's failure to diagnose Collins' breast cancer, which, in turn, proximately caused her death, the immunity provided to local public employees in section 6-105 and subsection (a) ofsection 6-106 applies." Michigan Avenue National Bank, 191 Ill. 2d at 512.

How, then, do we reconcile Michigan Avenue National Bankwith American National Bank? The ascendant facts that separatethe two decisions are whether a correct diagnosis had been madeand treatment prescribed. Negligent or wrongful prescribing oftreatment is not immunized. See 745 ILCS 10/6-106(c) (West2000). The failure to prescribe treatment is. 745 ILCS 10/6-106(a) (West 2000).

In Michigan Avenue National Bank, there never was a correctdiagnosis. In American National Bank there was, and treatmenthad been correctly prescribed.

Our analysis finds support in other appellate courtdecisions.

In Mabry v. County of Cook, 315 Ill. App. 3d 42, 733 N.E.2d737 (2000), the plaintiff's decedent received a diagnosis ofasthma and was treated for that condition. She later died of anundiagnosed pulmonary embolism. The plaintiff contended this wasnegligent prescription of treatment, not immunized. But thecourt held the alleged negligence was not based on treatmentactually received for asthma, but on the treatment plaintiffshould have received and the diagnosis of pulmonary embolism thedoctors should have made. The County was immune for failing totreat a condition it had failed to diagnose. Mabry, 315 Ill.App. 3d at 57.

In Carr v. Cook County Hospital, 323 Ill. App. 3d 184, 751N.E.2d 119 (2001), the plaintiff alleged the hospital and itsdoctors negligently failed to diagnose and treat a child'sruptured tendon. Testimony at trial revealed the defendantsnever diagnosed or treated the ruptured tendon, but insteadthought they were dealing with a skin laceration and treated thatcondition. The trial court granted the defendants a directedverdict, based on the Tort Immunity Act. We affirmed, holdingthe evidence related to a failure to properly examine or diagnosethe plaintiff's condition, conduct immunized by sections 6-105and 6-106(a) of the Act.

Finally, in Lloyd v. County of DuPage, 303 Ill. App. 3d 544,551-52, 707 N.E.2d 1252 (1999), the court held the County'sConvalescent Center was not immune where plaintiff's complaintalleged the Center's nursing care employees negligentlyadministered treatment diagnosed and prescribed by the decedent'sdoctors.

Where are we, then? None of the decisions we refer to dealtwith paramedic conduct or lack of it. There may or may not havebeen a "diagnosis" and prescribed "treatment" that would excludetort immunity. We do know the decedent in this case had aheartbeat and pulse when the paramedics arrived, but we knowlittle else about what happened next and what that means. We donot have the benefit of the kind of facts developed during trialcourt proceedings in Michigan Avenue National Bank, AmericanNational Bank, and the other cases we have cited.

We conclude principled resolution of the immunity issuerequires a better record. There are enough factual allegationsin the plaintiff's complaint and the Physician's Report for us tosay the motion to dismiss should not have been granted. But wedo not want to be understood as saying more than we are. This isa serious issue and should be dealt with seriously in furtherproceedings.

We do not rule on the merits of the City's motion, thusleaving open for the City the pursuit of its immunity claim. See735 ILCS 5/2-619(d) and (e). We assume there will be moreevidence of when and how diagnosis, prescription of treatment,and/or treatment were performed or not performed. Among thequestions to be addressed is whether, in the circumstances ofthis case, the EKG actually was performed, and, if not, would ithave been part of the prescribed treatment for a correctlydiagnosed heart attack, or would it have been part of theexamination to determine the correct treatment of an undiagnosedcondition? The answer could determine the existence of at leastsome tort immunity for the City.

CONCLUSION

For the reasons we have set out, the trial court's ordergranting the City's motion to dismiss is reversed, and this causeis remanded to the trial court for further proceedings.

Reversed and Remanded.

SOUTH, P.J., and HALL, J., concur.

1. A "heart attack," also known as a "myocardial infarction,"is defined in part as "[t]he loss of living heart muscle as aresult of coronary artery occlusion" (Taber's Cyclopedic Medical Dictionary (19th Ed. 2001)), or "an acute episode of heartdisease (as myocardial infarction) due to insufficient bloodsupply to the heart muscle itself esp. when caused by a coronarythrombosis or a coronary occlusion" (Merriam-Webster's MedicalDesk Dictionary (2001)).

2. "Defibrillation" is defined as "[t]ermination ofventricular fibrillation (vfib) with electrical countershock(s).This is the single most important intervention a rescuer can takein patients who have suffered cardiac arrest due to vfib orpulseless ventricular tachycardia." Taber's Cyclopedic MedicalDictionary (19th Ed. 2001).

3. An "EKG" or "electrocardiogram" is defined as "[a] recordof the electrical activity of the heart, consisting of wavescalled P, Q, R, S, T, and sometimes U. *** The electrocardiogramgives important information concerning the spread of electricityto the different parts of the heart and is used to diagnoserhythm and conduction disturbances, myocardial infarction orischemia, chamber enlargement and metabolic disorders, amongothers." Taber's Cyclopedic Medical Dictionary 672 (19th Ed.2001).

4. "Asystole" is defined as "cardiac standstill; absence ofelectrical activity and contractions of the heart evidenced onthe surface electrocardiogram as a flat (isoelectric) line duringcardiac arrest." Taber's Cyclopedic Medical Dictionary 189 (19thEd. 2001).

5. "Refractory" is defined as "[r]esistant to ordinarytreatment," or "[r]esistant to stimulation; used of muscle ornerve." Taber's Cyclopedic Medical Dictionary 1849 (19th Ed.2001).

6. Defendant's motion also faulted plaintiff for not includingan attorney's affidavit or physician's report under section 2-622, an omission plaintiff later cured. 735 ILCS 5/2-622 (West2000).