Illinois Fire Department Prevails in Wrongful Death Suit

The Illinois Court of Appeals has affirmed a lower court ruling granting summary judgment to a fire department sued for the wrongful death of a woman in 2014. The family of Amanda Gary filed suit against the City of Calumet alleging that the negligence of fire department paramedics caused her death.

Gary, 31, suffered a severe asthma attack on October 12, 2014. The Calumet Fire Department responded and medics attended to and transported her to St. Margaret North Hospital, where she died ten (10) days later.

According to the decision, Gary’s family claimed the medics were negligent for three things:

  • First, although Amanda’s blood oxygen levels were dangerously low when the paramedics arrived on the scene, the paramedics unnecessarily delayed intubating her for 14 minutes.
  • Second, when they finally did intubate her, they inserted the breathing tube into her esophagus rather than her trachea.
  • Third, they failed to monitor Amanda’s blood oxygen level after intubation and, therefore, failed to discover the tube was placed incorrectly.

The city denied that the medics were negligent, and argued that even if they were, immunity under Section 3.150(a) of the Illinois EMS Act required the court to grant it summary judgment. Section 3.150(a) 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 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)

The trial court agreed with the city, and Gary’s family appealed. In upholding the trial court ruling, the Court of Appeals stated:

  • The purpose behind such immunity is “to encourage emergency response by trained medical personnel without risk of malpractice liability for every bad outcome or unfortunate occurrence.”
  • Emergency situations are often fraught with tension and confusion, and medical personnel “must not be afraid to do whatever they can under less than ideal circumstances.”
  • Nevertheless, section 3.150(a) provides no immunity for willful and wanton misconduct, which is defined as conduct exhibiting ” ‘an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.’
  • Such conduct lies between intentional and merely negligent conduct.
  • The Restatement [of Torts] terms such behavior “reckless misconduct” explains: “[Reckless misconduct] differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. *** [T]he actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent.” Restatement (Second) of Torts 500.
  • In the instant case… it is undisputed that the paramedics engaged in extensive efforts to save Amanda’s life.
  • They administered albuterol and measured her blood oxygen level; when she fell unconscious, they gave her assisted aspirations with a bag valve mask and brought her to the ambulance.
  • There, they administered Versed to prevent her from vomiting and aspirating her own vomit, and then Pierce intubated her.
  • After the intubation, they observed multiple factors that led them to believe it had been performed correctly: they heard sounds from her lungs (albeit diminished), did not hear sounds from her abdomen, and saw a positive change in the CO2 detector.
  • Banks also observed her chest rising and falling.
  • Construing the record liberally in favor of plaintiff, a reasonable finder of fact could conclude that [one of the medics] performed the intubation incorrectly by inserting the tube into Amanda’s esophagus rather than her trachea.
  • A finder of fact could also reasonably conclude that this error might have been discovered and fixed prior to Amanda’s arrival at the hospital if the paramedics had used a pulse oximeter to continuously monitor Amanda’s blood oxygen levels.
  • But even taking these things as true, such errors do not reflect “an utter indifference to the decedent’s safety” as required for a finding of willful and wanton misconduct.
  • This is particularly true where, as here, the paramedics utilized multiple other methods to assess the intubation in a tense and time-sensitive emergency situation.
  • To defeat summary judgment, plaintiff would have had to present evidence that the City either knew [the medic]’s training imperiled patients, or that the City failed to recognize this danger through recklessness.
  • Plaintiff presented no such evidence.
  • On the contrary, all three of Amanda’s treating physicians corroborated [the medic]’s statement that pulse oximeter readings can be inaccurate.
  • In light of their testimony, plaintiff has not presented an issue of fact as to whether [the medic’]’s training reflects an utter indifference to patients’ safety.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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