good morning and welcome to everyone today tuesday march nineteenth two thousand and thirteen call the doctor for today or first cases agenda number ten case number one one four three one zero karen wilkins good morning your honour's council may it please the court my name is karen degree and i'm here today on behalf of the defendant appellants rhonda williams and superior air ground ambulance service with me today is kimberly godden of superior ambulance and also a representative of the illinois state ambulance association the cake the case comes before the court the appellate court's reversal of an order entering summary judgment for the defend the ants on a fully developed record the central issue concerns the immunity provision of the emergency medical services systems in fact th provision provides immunity when it applies for or against actions that fall short of willful and wanton misconduct that's the they have is what has to be proved prevail in the civil action the appellate court ruled that the broad immunity provision is at issue here encompass the non emergency transport during which this extreme occurred but the court negligence theory while the patient in a situation covered under the immunity provision would be limited to willful and wanton misconduct in action and the plaintiff has a further limitation on the immunity provision and contends that it only applies to medical malpractise claims the appellate court reached this conclusion based on a perceived in the immunity provision  and a conflict that perceived perceived with the vehicle code we disagree our position is that when e m s immunity applies it applies to all civil actions brought by any claimants the statute has no such o one count complaint for negligence she describes in her complaint and accident that occurred when she attempted attempted to make a left hand turn on ninety fifth street in chicago across several lanes of traffic so that she could enter a parking lot at the time the random williams the ambulance driver according to the plaintiff didn't keep a proper lookout and didn't allow the plaintiff to  believe there is any ambiguity in the plain language no your honor and it applies to civil actions for g m for damages in it pertains to will form wanton misconduct as the standard of the plaintiff i can see it is in the trial court and on the facts of this case even if the plaintiffs were to include the type of conclusion of the language that you would expect to see if there were a willful and wanton count the facts w support their conclusion and i think the unrebutted facts are quite clear on that point we have two eyewitnesses along with the ambulance driver herself who testified  to to the fact that the ambulance driver was not speeding we have the conclusion of the investigating police officer that the cause of the accident was the plaintiff's failure to yield during those left hand turn on this  street and not the speed of the vehicle of the ambulance driver and i believe that the points that the plaintiff attained attempts to raise to support a contention that there could  discussion was there about whether i mean they would have no reason to request to repleat at that point well at that what happened your honor was our motion for summary judgment did address the nature of the according to the deposition testimony of the two e m t's involved rhonda williams the driver and her partner vernet henderson were working as a team doing their job of transporting a patient from lincoln park hospital to a nursing home on the south side of the city of chicago williams drove the ambulance and henderson sat in the back to monitor the patient is unrefuted at the outset of the transport henderson took the vital signs of the patient that at all times she sat directly behind the patient during the transport to monitor the patient and make sure that there was no change  faith provide emergency or not emergency medical services in the normal normal course of conducting their duties and the testimony shows as i just outlined that there was a situation in this case it was a typical no seen medical transport there is no deviation from any rule or procedure shall not be civilly liable as a result of x or omissions including the bike yes i'm nearby hospitals or medical facilities providing such services and section b the munity provision expressly encompasses both private and governmental organizations who employ such as ms williams involved in the situation and the statute doesn't reasonably allow for the court and i believe that the appellate court was wrong when it sliced off the driver sliced off the driving  d if the at with the kids if the appellate court were correct then that certainly would fly in the face of this course interpretation of the immunity provision to encompass transport what is transport besides driving so you have to have both you have you have the not an emergency medical services being provided in the trip in the course of this transfer or obviously if they're not driving they're not going to get from one point to another this this interpreters interpretation i'll submit is entirely faithful to this court's decisions in the american national bank case in a bruise oh in the american national bank case the court applied the immunity provision under the under circumstances where the responders activities were yet another step removed from it from precisely providing medical care they weren't providing medical care they weren't even in transport the paramedics in their case frantically could not find the patient in the apartment building and the court found in applying the immunity provision that the conduct was preparatory to rendering medical care and that they at is what the general of the general assembly me immunity provision so the court and instance read the application of the provision to go beyond medical care yeah transported into the situation of locating the patient in the building fast forward eight years to a bruise so when this court took another look at the immunity provision at this point the statute had better amended since the decision in the american national bank case and instead of referring to life support services the statue referred to it was expanded actually to include emergency war non emergency provision of medical services act or whether the immunity act and by this time the general assembly deleted the phrase for purposes of transporting a trauma patient from the statute according to this court those revisions only broaden the scope of the immunity provision this court rejected the  under the circumstances of this case it's very significant that in a bruise oh this court observed that transportation of patients is implied by the reference to bypassing of nearby hospitals or medical facilities provision after the amendment supported the interpretation that the phrase emergency or not an emergency medical care and campus life support services broadened and i would submit that the plain language of those phrases also supports their reason that meeting the legislature has not responded to a bruise zero or american national bank with any amendment that signals a different interpretation so the court statements on a bruiser should be considered as part of the statute therefore what we have emergency and or non emergency encompassed within the statute patient versus non patient encompassed within the statute medical services transport period tory conduct all within e m s immunity to the extent that the appellate court contended that and the the clear intent of the act doesn't support that as a reasonable reading because i think if you change the hypothetical bit you can see how it simply doesn't work under the statutory scheme let's say that the ambulance driver now we know that encompasses both emergency and non emergency lets say the ambulance driver was responding to an emergency call is and is in the harris case  still would be a situation where the third party motorist would not come within the immunity provision but the patient would come within the immunity fish and so we have a situation where the patient has this unburden and the third party motorists doesn't i don't think that makes any sense and the first district when it decided the brac case didn't think that it made any sense to make a distinction between  contribution claim brought by another entity versus the patient the state the legislative intent of protecting the parties to come within the immunity provision tort liability is going to be the same whether is brought by somebody for contribution or third party motorists were impatient also problematic with the appellate courts and the elsa's what about the situation of family members or health care providers who are riding in the back of the ambulance both those individuals that say if there was an automobile accident would he have the option to sue and proceed on a negligence theory the patient wouldn't that doesn't seem to make sense under the statute what about the patient himself as the patient himself carvalho up the duties and say well if the somehow if i can if i can construe this as my injury results from the driving  the statute suggests that type of interpretation is reasonable but that would follow under the the appellate court's analysis and that as i said that also applies to the the medical malpractise versus other types of claims there's no restriction in the statute and i don't believe that whether a theory is medical malpractise versus another theory they have there's any difference in the impact that it potentially has on the legislative goal of giving the e m s worker a safe haven to some extent so that the e mails worker can do its job and not a concern of civil liability for every potentially negative situation that arises in this in the course of these difficult duties the immunity provision and it's not limited to the notion of making sure that e m s providers can do their job in the situation and you know high pressure situation because as we know of the war or rather the legislature he has included emerton non emergency as well as emergency situations but it doesn't take much for me as a nation to envision that where medical transport is necessary the situation can change dramatically in a short period of time and that's why that person is an emergency medical transport situation versus a taxi or some other some other method of conveyance and i also would draw the court's attention to the concerns that were raised in the task force report that the amicus included in appendix because i think it raises illustrates some very very important policy concerns of the legislature about providing a mass route the state of medicare reimbursement where the teams are not coming into the profession they're going into higher levels and if the court looks at page five of the task force report it specifically outlines the financial challenges for private providers so i think that's an important part of the legislative goal as far as the vehicle code the defendants respectfully disagree with the with the that it conflicts with and supersede immunity provision and the plaintiff has put three sections of the vehicle code in play the section two or five which talks about public employees and their conduct in an emergency driving situation nine zero seven which involves the way that everyone else has to drive in that situation when they see the vehicle coming along with emergency vehicle coming on with a license sirens and section fourteen twenty one which also allows rescue vehicles to use those they had equipment under specifically under emergency situation not the situation here but i see that my time has come to an end but i'll just close with the comment that the restricting civil liability in this situation to does not ever gate the motor vehicle code it has fully application in the situation of civil liability there still can be liability for willful and wanton this conduct and of course  justice members of the court for the record my name's lindau and i'm here today along with my trial counsel christopher lawler on behalf of the plaintiff affably karen broken please the court honor as i hope today to crystallize our position and make it easily understood as to how the legislature has spoken to all across through its legislation through its express words and how the reviewing courts have consistently interpreted the really the three statutes at issue first the motor vehicle code the tour community act is relevant and then of course the emergency medical services systems act and if i could just put this into a little bit of a historical context as i was preparing today it helped clarify my thoughts going back as early as nine hundred twenty three our legislature has regulated vehicular traffic back then through the court's decisions we see that it had an anti hit and run statute and then as early as one nine hundred thirty five is where we have our vehicle code and this is just looking back through the code to find those data points in  five the legislature promulgated the toward immunity act based on the specific concerns and public policies dealing with the financial stability concerning municipalities and their toward immunity but also act promulgated however in all of these statutes with one exception in the toward immunity act there has never been an exemption a limitation a privilege for the duty every vehicle operating on the roads of this state or those to other vehicles and pedestrians to operate with due care this is a matter of essential public safety and this court's avail us says and all of the community decisions that i've read and cooperate paying for today we look at what the duty is and then we look to see if the immunity statute lifts that act or outside of that duty so what are the two competing duties here with the motor vehicle code it's the duty to drive with ordinary care that's been our baseline since one thousand twenty three that hasn't changed as society evolved vehicles evolved but yes train traffic evolved cities involved our legislature certainly perhaps because that is as at least five reviewing court decisions from this the state of illinois reviewing courts and the seventh circuit have determined that statute only applies to professional liability claims if you see the patient in the cabin with respect to the public e m s act has never been interpreted to give them immunity for ordinary collisions this was a vehicular collision by the defendant's own testimony was operating as an ordinary vehicle at the time of the collision miss henderson testified that that was her training her employer told them that unless they're under lights well they could be driving to and from work they could be driving the ambulance they could be on the road you know i mean i can think of scenarios where there is not a mass purpose but i think the purpose is not dispositive again it's the duty what's the duty that the reviewing courts have interpreted applies to the emergency medical systems act professional liability and the forgot the decision it's the seventh circuit i think a very hopeful historical analysis of the code consistent with all of the illinois decisions where they go back and they look at how historically first responders prior to having immunity from professional delivery were held accountable for their negligence in rendering emergency services that's where it started so the legislature in response as a matter of public policy to prevent a chilling effect in the rendition of emergency services the city the patient promulgated the emergency medical systems act and five of the decisions that we've cited which are all consistent and a couple of which the supreme court this court at that time declined to accept for review they all state that the lead just brock first brought case the legislature intended to encourage emergency response without the risk of malpractise liability for every bad outcome unfortunate occurrence now for automobile collisions brock to says the same thing  legislature intended to encourage emergency response by trained medical personnel again without the risk of malpractise professional liability not just medical malpractise i mean i can envision a scenario where they're driving a patient who is very fragile they hit a big pothole and break their ribs or they're doing c p r and they break i mean that's a professional liability that's not necessarily medical that's what the cases stay and that's been our position but in policing the court goes on to explain that emergency situations are often fraught with tension confusion and is here difficult physical locations for giving medical care emergency personnel must not be afraid to do whatever they can under the circumstances bowden goes for doc he goes but if i could take this court back to the wisdom of the poor in court back in one nine hundred fifty two where they're involved in private ambulance appellate court said sixty years ago almost exactly this is a page three twenty eight three twenty nine of the court's decision the very nature of an ambulance when it is responding to an emergency live sit out of the class of an ordinary vehicle then becomes an emergency vehicle and accept it as is necessary to observe the rules of safety both for itself and for others using the high highway it isn't title to precedence over other vehicles all other circumstances being equal however the courts and we cannot agree with the contention that ambulances have blanket immunity for their conduct which is again the duty at issue in the emergency medical system say act is the duty or to the patient there is the case law that's an interpretation nothing in that statute says it pertains to the duty to drive with due care on the roads of the state particularly if you're a private entity required to maintain insurance acting for a profit that's an important distinction between public and private but the the limited immunity provision granted gives  munity for the acts performed by the personnel vsa be the patient and this is underscored and we've cited the three provisions in the motor vehicle act section two hundred five nine zero seven and fourteen twenty one to illustrate our point and the appellate court was correct when it focused on elect section eleven to a five because that's the starting point section of eleven to all five states of paragraph eight the provisions of this chapter that being the motor vehicle political to the drivers of vehicles upon the highways shall apply to the drivers of all vehicles except as otherwise provided and so they are where it's important if the ambulance which is just driving down the road is an ordinary vehicle seven o'clock at night on a november night backed up two hundred yards of stop traffic going you know but the testimony conflicts between thirty and forty miles an hour we don't know that's for a jury to sort out but nevertheless we're n n o one sees two hundred yards of stop traffic and ninety fifth street backed up from cicero if they want to lift themselves out of the motor vehicle code the code requires they activate lights or siren and they didn't so they don't get any preference for any special treatment any exemption they are not removed from the rules of the road and each of those provisions states expressly nothing in the code nothing in this chapter removes the ambulance driver from the duty to exercise ordinary care with respect to other pedestrians on the road so we have a motor vehicle code that's been around for eighty years our legislature knows how to amend it we have our toward immunity act this harris the courts his decision to end down where back in negligent operation of a motor vehicle when responding to an emergency or transporting a patient that's nine hundred eighty four the n s a act it's around since one thousand nine hundred one they didn't layer that over the ambulance is engaged in any apt providing ambulance services it's immune from the negligent operation of a motor vehicle when responding to an emergency call transporting a patient it didn't do that we have two different duties the duty of with respect to responsible and safe driving and then the duty with respect to the patient receiving the services legislature didn't amend it they're speaking to us directly all of the court's decisions state that it only claims fisa to the patient that's the limit if i legislature wanted to step in and then saying that they're immune a private ambulance is immune from ordinary automobile collisions it could have said that it could have rescinded those three regulatory code regulating emergency services in the state down to licensing requirements reporting requirements the type of equipment they have to have an ambulance and so again  court's analyses in the immunity cases the court has looked at this court has adopted a plain language approach i think to reach the defendant's conclusion you would have to add a provision that they're immune for ordinary negligence and they're driving the legislature has not done that it knows how to do that as illustrated and underscored by the top immunity act the legislature did not have any exemption in the motor vehicle code to the contrary it starts from the premise everybody is subject to the rules of the road lest we have havoc on our roads unless they take some of these other steps to receive any type of preferential treatment  standing the patient has no claim against the ambulance driver whether the patient has a claim against the other driver i think it's an open question and that's one answer but i think under your scenario your honor clearly under the emergency medical system sat the patient that's the quid pro quo to getting the benefit of emergency services if something untoward happens whether it's a  scenarios where the act of transporting a patient elicits a lifesaving transport trying to get them to the hospital that fact pattern is the patient is receiving emergency services the services the city the patient can include driving now i'm not saying i'm not saying this is why is this immunity provision in the e m s statute nice of the patients but the legislature has spoken they've spoken clearly with respect to the patient the courts have interpreted it i'm not saying the to immunity act is wise by giving publicly funded ambulances a munity from responding to an emergency or transporting a patient and i'm not saying it's wise that in five death one o six they gave them unity and lifted them out of the duty to drive with due care for the negligent operation of a motor vehicle but they spoke in that provision you know motor vehicle code the premises all vehicles are subject to the rules of the road they must be unless they can point to an exemption removing them in the code and over and over with each of those three statutes the legislature came back and said nothing in this statute removes the driver of the ambulance from the duty to operate with ordinary care to see that you misses way that i want to start way into this question you were before answering a question you were talking about havoc on the road even going with mr graham's interpretation of the stairs you were not left with absolute immunity or were left were left with will ok to follow the first part of question on a with respect to the emergency medical systems that the legislature has chosen to limit a patient's professional liability cause of action to a wolf in one claim that is the limit that's the check and that professional conduct but the legislature made a policy determination that to stop a chilling effect for the first responders they're going to give them the same unity in the rendition of the emergency services he said to the patient and that's the five decisions that address this discuss that moreover if now we're going to limit motor vehicle collisions the ordinary operation of a motor vehicle to wanton claims i think that's not only inconsistent with the plain language of the code but also with the financial responsibility law we have mandatory insurance laws private entities unlike a public entity are required to carry collision for this type of accident that's an expression of legislative intent but they are not immune for their automobile collision liability and lastly i don't understand why the illinois ambulance association is advocating that its members are limited to being sued for willful and wanton that strips them of their insurance coverage i don't know that may help one defendant today but i don't know how that helps all the private ambulances in the state and then with respect to the second part of your question your honor it's an interesting procedural question i mean admittedly the record is what it is we spend our position but the emergency medical systems act does not apply when we were responding to opportunity to address the issue so i think it's they are having a pleading with that have been the better practice certainly but i think it's been raised and preserved and that's not the essence of our argument unitarianism or we would have pursued really i mean there was never a request for the throw when summary judgment was will yes we would we would be asking a court because we were submitting it was raised and if the court finds that the act applies we think there's enough facts there to permit us to grant us leave to go back and clean up our pleadings to assert a cause of action and that is thank you your honor i believe to accept the plainest position in this case this court would have to overrule the brousseau because we've heard quite a bit about the toward immunity section that refers to driving and the ordinary operation of a vehicle here but what else is the statute referring to when it refers to transport if not driving i think it's clear and i think this court has found this clear so i don't believe it to stinking can be drawn unless this court is going to reverse itself and revisit a  and de gras substantially from the plain language of the statute as far as only applying to medical malpractise liability there is no decision of course i've read all the decisions that were cited in the response brief that says that the e m s immunity provision applies only to medical malpractise or professional negligence now there is a recognition in many of them at recognizing the legislative intent that they act is one of the kinds of action that the legislature wanted to limit to wolf in one situation before civil liability be found but there is no case that says and certainly the statute itself doesn't have a limitation for professional negligence and it's clear that i can direct the court to three cases we cited some and i replied the american national bank which of section three point one five all that it's broad and i i don't believe that this interpretation that's being advanced today by the plaintiff can stand not just in light of the transport reference in the statute but also in lay of the obvious application to non emergency situations because he ambulance even in a non emergency transport is not just another vehicle and not legislature we've heard quite a bit in the briefs and also today about a distinction between private and governmental situations there is no distinction in the m s a act in fact the community provision specifically encompasses private entities yes the court unless there's any questions to continue to recognizing give a fact to the legislative intent to the broad