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No. 2--02--1376

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, James Kirwan, the administrator of the estate of decedent, Kimberly Kirwan, sueddefendants, Lincolnshire-Riverwoods Fire Protection District (Fire Protection District) and JasonPhillips, James Spicka, Raymond Amidei, James Carney, and David Gnadt, who were paramedics,firemen, and/or emergency medical technicians employed by the Fire Protection District, in awrongful death action stemming from the death of Kimberly Kirwan. The trial court dismissedplaintiff's amended complaint, finding that it failed to properly allege that defendants committedwillful and wanton misconduct, as required by section 3.150 of the Emergency Medical Services(EMS) Systems Act (EMS Act) (210 ILCS 50/3.150 (West 2002)). Plaintiff appeals. We reverse.

The following is a summary of the allegations contained in plaintiff's amended complaint. OnMarch 7, 2001, decedent experienced an allergic reaction to walnuts while at Bar Louie, anestablishment in Riverwoods. At 9:26 p.m. a 9-1-1 call was placed. The caller explained thatdecedent was having an allergic reaction and, as a result, was having a hard time breathing and stayingawake. The caller further stated that decedent's throat was closing, and she was turning red andwheezing. The 9-1-1 dispatcher contacted the Fire Protection District and stated that an ambulancewas needed for an allergic reaction. While the ambulance was en route, the 9-1-1 dispatchercontacted the paramedic defendants and advised them that decedent's throat was closing and that shewas having a hard time breathing. According to the complaint, prior to arriving at the scene,defendants⁽¹⁾ knew that decedent was "in a life threatening situation due to an allergic reaction towalnuts." At approximately 9:31 p.m. the ambulance arrived at decedent's location.

Plaintiff alleges that defendants knew, immediately upon their arrival at the scene, thatdecedent was having difficulty breathing and had hives on her face and neck. Defendants furtherknew that decedent was in an "extreme, life-threatening situation" which if not immediately treatedproperly would lead to her death. The complaint states that "the Defendants knew at the time of theirarrival, and for a period of time of at least six (6) minutes thereafter, that Plaintiff's Decedent's vitalsigns were stable and exhibited respiratory distress without anaphylactic shock." While this allegationis strangely worded, its import does not seem to be that defendants actually knew "at the time of theirarrival" that decedent's vital signs were stable. Rather, the more reasonable reading of plaintiff'sallegation is that based on readings that defendants completed as of six minutes after their arrival onthe scene, defendants concluded that decedent's vital signs were stable both then and "at the time oftheir arrival." The next allegation further supports reading the complaint as alleging that defendantscompleted their check of decedent's vital signs six minutes after their arrival at the scene: "That theDefendant knew that as of six (6) minutes after arriving at the scene that Plaintiff [sic] Decedent'svital signs were as follows: Blood Pressure -- 120/100; Pulse -- 118; Respiratory rate -- 32; Pupils -pearl; and Skin -- Hot/dry."

The complaint further alleges that defendants knew that decedent's condition was gettingprogressively worse and that there was an extremely limited time to provide the proper emergencymedical treatment in order to prevent anaphylactic shock. Plaintiff alleges that decedent's life couldhave been saved upon defendants' arrival because her airway was not completely closed and she wasconscious, alert, and had stable vital signs. Further, decedent's situation required emergency medicalprocedures including assuring that a patent airway existed and administering subcutaneousepinephrine, intra-muscular Benadryl, and albuterol. Based on defendants' training and applicablestandard operating procedures, epinephrine and "albuterol via nebulizer" should both have beenadministered within the first 60 seconds after defendants' arrival. Further, Benadryl should have beenadministered after the epinephrine. A separate allegation states that epinephrine immediately shouldhave been administered subcutaneously. Defendants failed to administer epinephrine subcutaneously,albuterol via nebulizer, or Benadryl intra-muscularly. Decedent's airway did not close for at least fiveminutes after the arrival of defendants. Defendants administered epinephrine and Benadrylintravenously only after decedent had gone into anaphylactic shock. Defendants administered theepinephrine at least seven minutes after their arrival on the scene. Defendants administered theBenadryl at least eight minutes after their arrival on the scene. Defendants did not administeralbuterol via nebulizer. Plaintiff alleges that the delay in administering epinephrine and Benadryl andthe failure to administer albuterol was "a violation of all applicable emergency medical standards ofcare and/or standard operating procedures and training" and was "indicative of an utter disregard ofthose standards and an utter indifference for the life of [decedent]." Plaintiff further alleges that therewas no medically justifiable reason for not administering this treatment. Defendants knew thatimmediate administration of epinephrine, albuterol, and Benadryl was required to prevent decedentfrom dying. The delay in administering epinephrine and Benadryl and the failure to administeralbuterol caused decedent to go into anaphylactic shock and cardiac arrest and was "tantamount toa refusal to render emergency treatment." Defendants' behavior "evidences a complete indifferenceand utter disregard for the health and life of decedent." Finally, plaintiff alleges that the failure toreceive proper medical services resulted in decedent's death. Decedent died on March 13, 2001.

On November 20, 2002, the trial court granted defendants' motion to dismiss plaintiff'samended complaint without prejudice. The court found that plaintiff had not sufficiently pleadedwillful and wanton conduct because key allegations in his complaint were mere conclusions of lawand fact that were not supported by well-pleaded facts. The court emphasized that, despite the factthat plaintiff was tendered the relevant standard operating procedures, plaintiff's allegation thatdefendants violated standard operating procedures does not specify which standard operatingprocedures were violated. Rather than file a second amended complaint, plaintiff moved the courtto make its dismissal with prejudice so that he could appeal it. The court granted that motion, andplaintiff timely filed a notice of appeal. We review de novo the trial court's dismissal of plaintiff'scomplaint. Board of Directors of Bloomfield Club Recreation Ass'n v. The Hoffman Group, Inc.,186 Ill. 2d 419, 424 (1999).

On appeal plaintiff argues that his complaint sufficiently pleaded willful and wanton conduct. Section 3.150 of the EMS Act provides that persons or entities covered by the EMS Act who providemedical services in good faith will be immune from civil liability unless they are guilty of willful andwanton misconduct:

"Any person, agency or governmental body certified, licensed or authorized pursuantto this Act or rules thereunder, who in good faith provides emergency or non-emergencymedical services during a Department approved training course, in the normal course ofconducting their duties, or in an emergency, shall not be civilly liable as a result of their actsor omissions in providing such services unless such acts or omissions, including the bypassingof nearby hospitals or medical facilities in accordance with protocols developed pursuant tothis Act, constitute willful and wanton misconduct." 210 ILCS 50/3.150 (West 2002).

The parties agree that the limited immunity provided for in section 3.150 applies to defendants butdisagree as to whether plaintiff has properly pleaded willful and wanton misconduct. We mustdetermine whether the amended complaint alleges sufficient facts to bring plaintiff's claim within thescope of a legally recognized cause of action. Adkins v. Sarah Bush Lincoln Health Center, 129 Ill.2d 497, 518 (1989). A complaint should not be dismissed unless, when viewing the allegations in thelight most favorable to the plaintiff, it clearly appears that the plaintiff would not be entitled to reliefunder any set of facts. Board of Directors of Bloomfield Club Recreation Ass'n v. The HoffmanGroup, Inc., 186 Ill. 2d 419, 424 (1999).

In Illinois there are two varieties of willful and wanton conduct, intentional and reckless. Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 48 (1995). These two types of willful and wantonconduct are distinguished by the actor's mental state. Intentional willful and wanton conduct is committed with "actual" or "deliberate" intent to harm. Illinois Pattern Jury Instructions, Civil, No.14.01 (1995). By contrast, reckless willful and wanton conduct falls in between actual intent andmere negligence. Poole, 167 Ill. 2d at 47. Although reckless willful and wanton conduct is notcommitted intentionally, it is nonetheless, at least in theory, determined based on the actor's "real orsupposed state of mind." W. Keeton, Prosser & Keeton on Torts