good morning my name is susan schwartz and i have the privilege of representing joanna brousseau is the independent administrator of the estate of her son joseph area as this court is aware by now this case arises out of a call for nine one one emergency services to treat an unresponsive fifteen year old boy who had required c p r the call was placed by his father using the nationally recognized nine one one number and an ambulance and a fire truck manned by e m t and paramedics was dispatched by the city of park ridge after these emergency care providers arrived at the furia home they left without and providing any medical care whatsoever to this fifteen year old boy when a suit was filed predicament that before suit was filed there was discovery under a bill of discovery to attempt to obtain all of the relevant documents from the fire department for this particular run there is no run sheet the dispatch tape which was also provided to us and made available in preceded discovery unfortunately this not being a perfect world i represent the mother of the divorced mother who was not present in the home that evening and whose husband is not necessarily helpful or cooperative with me as this case is filed on the pleadings only unlike many of the other cases that have discussed some of these immunities we do not have depositions and statements and other information to flesh out certain material but we don't know whether the father sent them away so that we have nothing to indicate that one way or the other i know that  viewing health care provider who reviewed this case as you must in any medical education assumes the call was made the facts are stated and that's what's on the dispatch tape my son is not breathing unresponsive i'm providing c please come i need help and that is the key component here because the emergency medical system services act the m s a act was devised and implemented by our legislature to provide a means for providing pre hospital care in defining the scope of the services under the act what it says is that pre hospital care and they can this isn't defined into ten i'll see us fifty dash to reach ten the scope of services that pre hospital care emergency medical services rendered to an emergency patient or analytic resuscitative stabilizing or preventive purposes preceding to or during transport and those life support activities which are very clearly defined our care that according to the scope of service is in the act of self care that shall not may not perhaps its care that shall be initiated asked stop the rise by the m s director and it's all according to the system plan and i think that this is important because the role of the care provider who comes in an emergency situation is not the same as the role of perhaps other health care providers their role is not to make a definitive diagnosis and to determine what the problem is when they see the unresponsive person lying unconscious it's not their role to determine that that person has a ruptured abdominal aortic aneurism that caused that or that person has a pulmonary embolism that is responsible for what they're seeing their role is to provide this pre hospital care to analyze resuscitate and stable is so that the patient can be transported to a hospital where the definitive care that the patient requires will be provided again part of the problem that the  in this case was looking at these emergency care providers as part of the universe of health care providers and they were of the opinion that if this court had been presented with this dichotomy between the immunity that's afforded the absolute immunity that's been the toward immunity act or the limited immunity which the plaintiff is maintaining applies in this case under the emergency services act using the reasoning in the heinrich case looking at the school code this court would have determined that in this particular sphere they were vying for the same spear and they would be no problem in applying the toward immunity act but i think i had trouble with the spears and perhaps i can try to describe what my issue was i kept thinking of ben diagrams that you've got circles does that mean they never intersect or that they are always disparate well that doesn't make sense under the decision of this court and more versus green because then we were looking at police officers who were doing verified police work but any very specified circumstance under the domestic violence act here we're dealing with a very very small group of health care providers these citizens there has to be developed by the emergency system director and e m s plan that plan has to include standing medical orders and standing aberrated procedures also as i was discussing with you under the scope of services to be provided it specifically states that pre hospital care for emergency medical services to stabilize and resuscitate includes these l s services particularly when it states that advanced life support means pre hospital emergency care and medical services that includes basic life support cardiac monitoring cardiac tippett relation electric cardiac a fee intravenous therapy and ministration of medication and drugs and other techniques and procedures as outlined in advanced life support national curriculum provided by the united states department of transportation and they at care shall be initiated as outlined by the m s medical director obviously at this act in not list what a health care proposal a paramedic or an e m t was supposed to do to cover every single emergency that they would encounter that's not contained within the legislation itself but it refers to that these individuals are going to be trained by this core curriculum which is a balloonists document which will set forth what the standard operating procedures are that they are to use when they encounter the situation that they must be licensed and equipped and able to follow these procedures that the emergency medical director has to ensure that persons who are operating in our emergency medical system are capable of providing and delivered the required emergency care and they are i mean they have to be licensed they're licensed requited they were certified under these national curriculum and then that they follow those and then the standing operating procedures that are put into effect that the emergency medical director is required to provide for all of the participants in the regional medical plan set forth the specifics and there are many many cases in the appellate court which discuss the specificity of these standing medical orders in standard operating procedures and if i would just point to one of the case it talks about what to do when an unconscious person was found the first thing they do is do a survey to check airway breathing circulation the second thing is thirty seconds later to check the vital signs monitor the cardiac rhythm started navy i mean these standard operating procedures are very very specific to deal with particular problems but they would not by essence be placed into the statute itself but i believe that that is their duty to comply with the training and the licensure and the procedures for which they are specifically trained they're having ban the duty within this very very small space and again i think we need to think of the whole universe of health care that is out there to which the toward immunity act provisions provide you have emergency service providers then you have hospitals to which the patients are admitted so now it's outside of the realm emergency services every doctor that a patient goes to an office you have every outpatient physical therapy i mean this whole universe of health care is much wider than this very very small segregated set of concerned that the legislature in an acting a minimum set of requirements for which about i'm not sure i understand ok but let me ask a question sir if if this which is in the act which is section three ten of the act and sections a b and c when they set out what they are last last and b l s care is that it is stated that this care shall be initiated  authorized and again all the care is being provided in conjunction with the system plan which the medical director is required to put into a fact that's to be followed by all the people that are participating in the submersion see medical service other than that i mean can i say to you and say that there's something i'm trying to describe where i mean i believe the duty arises and that's where i think we look to that they can't enunciate every thing that will be done by a care provider when they find an unresponsive or unconscious person but it is assumed that they will provide the stabilising support necessary as well you know is it any part of whether or not the emergency persons doesn't fact do something or does nothing respond to these systems would do nothing but we know what happens that's why there was the issue in the try to pry case the american national bank case where they were never able to render the emergency care because the patient was never located even though there were in a fact procedures for which delivers of much care were trained nationally and locally to instruct them to how to locate the patient but you have to try the door to see if it's open to see if unlocked that was the  american national bank in even the more case the police officers were called and came but they never entered the house they lot so as unfathomable as it may be to us that these public people servants whom are paid hired and retain to do these things which we believe that they will do it sometimes they don't and again that's unfortunately in this case a problem that nothing happened but that's what the act was put in place to avoid is because these care providers have to act and time counts minutes are important so i think that these standard operating procedures are developed and why they're there is so that they will follow these protocols to stabilize the patient so that they reasons i'm well he says there was no signed refusal of treatment medical care providers to help us out in these cases always try to help so one of the suggestions was in consulting with him was if they don't have a run sheet do they have a refusal that was another one of the things that we asked for and discovered there was none there so again it he was just speculate about possible things there is nothing in any of the factual material on the dispatch tape or any of the records to indicate that the father did indeed refuse treatment it was however my consultant to my hired and retained to help in this case and to file the requisite strip it of merit stated wasn't there it's also another thing that the explanation for why it's not there why the run she addition to the and as it would for any physician but in addition to that duty as a licensed paramedic as part of the emergency medical system who is trained in it well a paramedic would be trained in advanced life support and the n t based on their level  either trained and most of them are in immediate life support some basic life support a first responder basic life support that according to the scope of services under the act they are required and shout and treatment in accordance with the level of their licensure so i'm looking to provide perhaps a statutory duty but i think that the duty is always there the kind of mop or any health care provider to do what i need another reasonably broad qualified health care provider trained as they i would do under the same or similar circumstances again your perfect world is one i wish we lived but as to what would that would that argument put all medical personnel in the same in the same way as whether or not there was a duty you wouldn't do on the common law you'd look if you we looked at the common law we look to the common law that applies to all medical personnel not just emergency well all right i guess sometimes where the problem lies  in it in the common law there is a duty then there are some statutory duties that apply in addition to that under the toward immunity act which is the immunity we're looking at that doesn't create any duties it just removes responsibility for lie about the way that would otherwise exist what that may have been and that immunity would have would apply to somebody who might have a common law yes it would and i'm saying that and that has been applied through the case to health care providers in the hospital and private office setting under a variety of circumstances but in all of those cases as i pointed out there is not one case where the health care provider did nothing in every case they at least looked at the patient and made a diagnosis even if it were incorrect and that's the other thing about the special nature of a diagnosis in these cases because what they're being called to treat is a condition a medical condition that i have a person with average knowledge of medicine would realize was something that required a broad severe sudden unscheduled emergency treatment that's the definition of emergency in the emergency systems act so that type of thing that can be recognized by a lay person to force them to call for help and more assistance to be rendered is the condition that the king emergency medical system kemper called to treat and to which they are to treat in accordance with their licensure and the treatment plan that's been developed by the emergency nine one one center in the conversation with the and then we get the times from the dispatch logs of when the vehicles arrive at the house and when they leave because they're required to log in and log out because now they're available to go to another call who is trained would use as most physicians would their best efforts to state that the call was made this isn't something that necessary i mean that they would check it out that they would assess and they can't even make the decision whether the patient needs to be rest suffocated stabilized or transported unless there is in some way they look at the patient and attempt to make that rudimentary basic assessment of airway breathing circulation which are what they're required to do under the protocols  regulate and provide minimum standards for the entire u s response call it includes everything to do with pre hospital transport including organization selection of which hospital patients with the to and who actually will respond and there are rules within the administrative code in the act itself that govern the dispatcher so the emergency medical response as it's defined in the act is for all of the emergency medical care that is provided pre hospital from the time of dispatch through the transport in t  directly in line with six one of five and six one all six of the tort immunity act in addition to the trial quote court level the proposed amendments to the first amended complain did not cure that effect they still plugged directly into the provisions of six one five and six one of six because they were again about a failure to do perform any emergency medical service of any kind and that is th fact pattern that we have in this particular case so so really the threshold question i think that needs to be answered today is do both of these statutes the tort of unity act in the n s a apply to the allegations of the first  zero does not apply to the allegations in this case now i don't believe there's any dispute about the validity and appliqued applicability of six one five and six one six what we do what we  faced with here six row five provides absolute immunity to local public entities and public employees who are within this their scope of employment for any injury caused by either a failure to make a physical or mental examination or a failure to make an adequate physical or mental examination and that is exactly what is alleged at the complaint that we failed to make eighty physical or mental examination in awe and then six one zero six that provide absolute immunity to local public entities in public employees who are within the scope of their employment when an injury is caused by either a failure to diagnose a physical or mental injury a diagnosis don't think don't think i did the first responders and is they are the first responders and out and eight take the patient to the medical providers well i think the first thing that needs to happen in any one of these scenarios is you have they're saying here and i think you have to read three point one zero on the scope of services section of the m s a in conjunction with three point one five zero the immunity provision because the immunity provision talks about any any actor it could be a private care whatever care is it's decided upon to be given whether it's advanced life support intermediate life support base a quite supportive or any of these on a need that says that care shall be initiated but it's got to be authorized by someone else they're not acting on their direction of an emergency communications registered nurse that's when the paramedics start to communicate via radio or telephone depending upon the situation with the hospital or triac center or emergency services facility if they're going to be bringing this patient to they don't just make those decisions on their own so there is some level of discretion involved in what these instrument except doing out there that's right ms you could go do you do you agree that a diagnosis would be the start of treatment yes i do agree that the one she will have to have to begin the providing doing something with a patient in order to reach her diagnosis in order to decide what you're going to do and i understand the we don't have all the facts here but assuming that the paramedics came in and saw someone unresponsive at that point without doing more of that or if we agree with the appellate court that that's not a diagnosis right they walk out of the room while he's on response and they have no duty to go based on that find for lack of a better term that someone is unresponsive they have no duty to go further is that your position my position would be that if they were to into that scenario and find an unresponsive person here if it is a governmental entity and they do they do not do anything they are immunized by six twenty five and six one zero six by the plain language of the statute they have not provided any examination and not provided any diagnosis they have not provided any treatment whatsoever and how it's a an almost impossible situation to imagine that a trained paramedic someone who has tried and sought out and educated themselves to take this position to be an e m t they don't just hit in the mouth but you have to go and you have to seek out this position that they would go somewhere and see an unresponsive person and fail to do anything it's something you cross the line from duty under the law to morality and what your what your obligations to society are but when we talk about th a person walking on the street you don't have to ask you don't have to do anything but i was not going to this has a duty upon you to do something if you're going to do something you need to do it correctly and that's not far from where what we're talking about with six point five and anyone would say gosh i'm not going to call nine one one because of the possibility that the paramedics might arrive see that whenever i'm calling for needs help and just walk away i don't think that is a realistic scenario i don't think that that is something that happens we're really speculating in this case that these mine well we unfortunately we have the record that we have in this case and as the yes no question about what when we we have the record that we have is our only option to conclude that that the paramedics did nothing is that how we have to look at this no i don't think you have to look at it as is that they did nothing i think you can read  in this case but but he did not die following the one o six am paramedic response there was a second call at nine am and what that time when the paramedics arrive assume that they were required of the patient needed and wanted by the patient and if they didn't do it at one am it's because they were required needed or wanted by the patient and additionally when you and you can assume would be handled the say i think if you look at the positions report as well but they talk about it and we're not supposed to guess and conjecture and speculate but when you look at the physician's report he says know actually i and i can tell you right now that there is no refusal sheet side out so that back to my original question what is one of the the facts that we have to base our case but what we have really is we have allegations in a complaint which when read by the plain language of the statutes six one five six one six clearly those those allegations clearly fall within the immunities that the legislature saw fit to establish for emergency medical services and for public entities in their employees under section five six when the sex and  certainly in many cases that the record is developed further before it ever gets to this position but as defendants we we don't decide what gets put into the complaint or not we respond to the allegations that are made against us and when the allegations such as these are i think that if there is any duty that would arise through a local public entity or a public employee in the scenario that they would be immunized by six one five and six one sex i don't necessarily believe that a duty arises  just by an observation that they make but regardless it was my question you're saying it doesn't arise till they provide some kind of service i don't know where the duty is going to come from if it doesn't it when we go back to that the common law the public duty rule is that local public entities and municipalities they don't they don't owe a duty to one individual throughout the town or village or city wherever they they they all a duty to the public as a whole and that's why they don't that's why the some some of these immunities have been has been and been developed it because you can't hold the police officers responsible for stopping every crime that happens out there it's just it's i mpossible you can't regulate everything that happens they do the best they can under difficult circumstances and the i don't believe the duty doesn't arise and if it does it's a six one five and six one six e immunity provisions apply absolutely i get and this really isn't our province but out of curiosity let's look at one of the allegations responded to a request for emergency medical service for a patient in altered mental status and failed to initiate advanced life or just that yes you said it was with immunity i'm not arguing one where they go and i said it's not our province but give me a public policy if it's not like the domestic violence act which lays out specific things that a police officer will do when confronted with a specific situation the great majority of the a nice act is about how you're going to develop and group together these various towns and communities and what the othe call going to be regulated and all that but under up there there are remedies available to someone who calls for emergency services and doesn't get the emergency services that they think they should get such as when were they come in they do  of e m t or paramedic licensing but for me the sponsor things are an enforcer of private actors so there are there are steps that can be taken to prevent that but just as in an a public policy setting  it is generally assumed that local public entities and their employees are going to do what they are sworn to do that they're going to go an act i'm going  that they came in unresponsive sorry i just don't feel like treatment and this is one a specific instance based on facts that we the facts that we have here one specific instance and i think that if this is this is something that if it is if it is a problem and i don't believe it is but that this is something that the legislature needs to address when they talk about immunities that they have provided and six twenty five and six one of six to take the e m s act and to secular the typical situation that the immunity is trying to protect is somebody coming in where there's somebody there who is perfectly fine for example when they say they don't engage in anything and they just say everything's ok in the later years i cannot imagine another scenario like like this where that something like that would happen in or say even in this scenario which by your own admission is the one in a lifetime occurrence at least delegation wise that even with these facts there still is no duty because it was still alive in the community absolutely there are cases in which there it's a it's a very heart breaking set of facts but the immunity applies immunity that is found in the e m s ect is a limited immunity which shields the provider if they do what they are required to do under the act from liability if unless they are will under the toward immunity act if they do nothing they are given absolute immunity if we choose to read the emergency medical services act which was developed for a very specific purpose to apply only to those emergency care providers that are providing this specialized pre hospital care and state that they don't have to do anything what incentive is there for any paramedic other than whatever their moral obligations they may have they bring to their job which i believe they do is care providers to do anything because once they begin to treat their subject the it can be question whether or not they're liable if they do nothing they're never in a lawsuit for any reason whatsoever i don't think that's how we look at things and i don't think that's what the legislature was looking to correct and in their legislative intent in setting forth a comprehensive system to coordinate all of this hospital care to deal with these situations where a medical condition which we choir's urgent treatment will be met and responded to by personnel that are licensed and qualified to address those issues so that they can stabilize the patients to get them to the hospital where the definitive treatment can be rendered that i think in essence that's that's really what the plaintiffs point is here what point does is there for the legislature to have said set up a very comprehensive statewide system to provide minimum emergency care provide standing operating procedures and standing medical orders to deal with the common everyday variety guard things that you will encounter but you don't have to follow them if you're called in you're asked to treat it just doesn't make any sense i believe and i think that the reasoning that this court invoked in the more cases when they looked at the domestic violence act that some of those same principles apply here that this is a very comprehensive self sufficient sat of regulations that this is a piece of this legislation that was developed to address again only one very small part of the health care delivery system that emergency care that is provided by the emergency care providers who are called for the street hospital transport there is it i certainly think that it's  unquestionable that the emergency medical systems act is more specific in terms of what it is dresses than the toward immunity act which deals with all health care providers not just the small group it certainly is later in time in that the  sixty five this legislation the e m s act with person introduced in one nine hundred eighty in this immunity was again amended in two thousand and two i think that all of these things together work that it would be to pervert every purpose within the act to specifically because the legislature when so found the preamble to also address that there have been abuses of the domestic violence system and they yes but that they stop them out as exploit said in the m s m act no but i certainly believe that they can be implied and that using that same type of reasoning however that this court can look to what was being looked to address even though all of the immunities the trinity act applied to those actors acting under the domestic violence act that these same emergency care providers are operating within at their own very small spear in the universe of health providers and for those versions we would ask this court to reverse the decision