In a decision published late last week, the Court of Appeals for the Seventh Circuit reversed a million dollar wrongful death verdict for the Illinois plaintiff in the case of Fagocki v. Algonquin / Lake-in-the-Hills Fire Protection District. On appeal from the federal district court of the Northern District of Illinois, the defendant emergency medical services provider successfully argued that it could not be held liable for any medical malpractice that led to the death of Shirley Johnson. The Illinois Emergency Medical Services System Act provides immunity to licensed emergency medical service providers for ordinary negligence. Instead, emergency medical service providers are only liable for their errors if they satisfy a “willful and wanton” standard. The purpose of the Act is to encourage licensed medical professionals to provide the emergency medical care that they might otherwise be deterred from providing if they were liable for ordinary negligence.
At issue on appeal was whether the emergency medical service provider’s failure to correctly intubate the 50 year old patient was willful and wanton. Shirley Johnson was 50 years old and overweight when she ate peanuts, a food she was allergic to, at a Chinese restaurant in Illinois. Because of various failures to begin intubation, which were then followed by unsuccessful attempts to intubate, Ms. Johnson suffered brain damage that put her in a vegetative state for the two and a half years before her subsequent death. Despite the jury’s verdict in favor of the plaintiff, the Seventh Circuit reversed and held that the failure to correctly intubate, given the conditions and difficulties of Shirley Johnson’s specific case, did not amount to willful and wanton behavior. As a result, Shirley Johnsons’ family will not be entitled to any damage award, and it is unlikely that her husband will be able to pay the substantial and overwhelming medical bills accrued over the years which she was in a coma and hospitalized.
click here for the full opinion.