THIRD DIVISION

									November 61, 2002

No. 1-01-3317

YVONNE ANTONACCI, Individually	)	Appeal from the 

and as Special Administrator , 	)	Circuit Court of

of the Estate of JAMES ANTONACCI,	)	Cook County.

Deceased,						)	

							)	

	Plaintiff-Appellant,		)	

							)

							)	

		v.					)	

							)

							)

CITY OF CHICAGO, a municipal	 	)

corporation,					)	Honorable

							)	Kathy M. Flanagan,

	Defendant-Appellee.			)	Judge Presiding.

	JUSTICE WOLFSON delivered the opinion of the court:

	We inquire into the extent of statutory immunity given the

City of Chicago where its paramedics allegedly failed to perform

an EKG or defibrillation on a patient they had diagnosed as

having had a heart attack.

	The trial court decided in favor of immunity and granted the

City's motion to dismiss the complaint.  We conclude the trial

court's decision was premature.  We vacate the order dismissing

the lawsuit and remand this cause for further proceedings.

FACTS

	Plaintiff, Yvonne Antonacci, individually and as special

administrator of the estate of James Antonacci, deceased, sued

defendant, City of Chicago, alleging that 911 personnel willfully and wantonly mistreated plaintiff's decedent's heart attack,

resulting in his death.  Defendant filed a 2-619 Motion to

Dismiss (735 ILCS 5/2-619 (West 2000)) in lieu of an answer,

based on the immunity provisions of sections 10/6-105 and 10/6-

106(a) of the Local Governmental and Governmental Employees Tort

Immunity Act (the Tort Immunity Act) (745 ILCS 10/6-105, 10/6-

106(a) (West 2000)).     

	Plaintiff filed a second amended complaint on May 3, 2001. 

She later attached a Physician's Report, pursuant to section 2-

622(a)(1) of the Code of Civil Procedure.  735 ILCS 5/2-622(a)(1)

(West 2000).  No depositions were taken in this case.  Defendant

concedes in its brief on appeal the allegations in the

Physician's Report are a part of the plaintiff's complaint.  We

look to the second amended complaint and the Physician's Report

attached to it for the facts of this case.

	The complaint alleged on October 5, 2000, plaintiff's

decedent suffered a heart attack1 at his home in Chicago.  Plaintiff called 911 and requested an emergency vehicle be

dispatched to the home.  After two telephone calls to the 911 system, an emergency vehicle with 911 personnel arrived at the

home.  On arrival, the 911 personnel "began treating plaintiff's

decedent," at which time he had a pulse and a heartbeat.  Knowing

that plaintiff's decedent required defibrillation2 to regulate his heartbeat and failure to defibrillate was likely to result in

death or great bodily injury, the paramedics "intentionally and

knowingly refused to defibrillate plaintiff's decedent."  

	The complaint also alleged the 911 personnel refused to run

an EKG3 strip on plaintiff's decedent, knowing such a strip was necessary to determine his cardiac rhythm.  The 911 personnel 

knew failure to make this determination would make it impossible

to properly determine the course of treatment, creating a strong

risk of death or great bodily harm. 

	Count I of the complaint alleged as a direct and proximate result of the defendant's willful and wanton acts and/or

omissions, plaintiff's decedent sustained injuries resulting in

his death on October 5, 2000.  Count II alleged as a result of

defendant's actions and/or omissions, plaintiff's decedent

suffered injuries which caused him conscious pain and suffering,

and disability and disfigurement before his death on October 5,

2000.   

	In the Physician's Report attached to the complaint, the

physician states his opinion, based on a review of medical

records, that plaintiff's decedent suffered a myocardial

infarction.  The 911 paramedics who responded correctly diagnosed

that he had suffered a heart attack and began treating him for

that condition.  The standard of practice for treatment of a

heart attack would be electronic defibrillation unless the

performance of an EKG confirmed the patient was in asystole.4  The EKG is the only way the paramedics could have determined if

the heart attack suffered by the patient would be refractory5 to defibrillation because of the presence of asystole.  

	While the paramedic records contain a statement that an EKG

was performed and the patient was in asystole, there are no

strips or evidence in the record to confirm an EKG actually was

performed.  Witnesses present at the scene say no EKG was

performed.  In the physician's opinion, the paramedics deviated

from accepted standards of medical practice in failing to perform

an EKG and in failing to defibrillate the patient.  The

physician's report concludes by stating if the patient had been

treated in compliance with accepted standards of medical care, he

would have survived the heart attack he suffered.      

	In response to the complaint, defendant filed a section 2- 619 Motion to Dismiss.  735 ILCS 5/2-619 (West 2000).  In the

motion, defendant contended plaintiff's claims were barred by

sections 6-105 and 6-106(a) of the Tort Immunity Act.6  745 ILCS 10/6-105, 10/6-106(a) (West 2000).  

	Section  6-105 states: 

		"Neither a local public entity nor a public employee acting within the scope of his

employment is liable for injury caused by the

failure to make a physical or mental

examination, or to make an adequate physical or mental examination of any person for the

purpose of determining whether such person

has a disease or physical or mental condition

that would constitute a hazard to the health

or safety of himself or others."  745 ILCS

10/6-105 (West 2000).

	Section 6-106 states:

		"(a) Neither a local public entity nor a

public employee acting within the scope of

his employment is liable for injury resulting

from diagnosing or failing to diagnose that a

person is afflicted with mental or physical

illness or addiction or from failing to

prescribe for mental or physical illness or

addiction.

		(b) Neither a local public entity nor a

public employee acting within the scope of

his employment is liable for administering

with due care the treatment prescribed for

mental or physical illness or addiction.  (c) Nothing in this section exonerates a

public employee who has undertaken to

prescribe for mental or physical illness or

addiction from liability for injury proximately caused by his negligence or by

his wrongful act in so prescribing or

exonerates a local public entity whose

employee, while acting in the scope of his

employment, so causes such an injury.  (d) Nothing in this section exonerates a

public employee from liability for injury

proximately caused by his negligent or

wrongful act or omission in administering any

treatment prescribed for mental or physical

illness or addiction or exonerates a local

public entity whose employee, while acting in

the scope of his employment, so causes such

an injury."  745 ILCS 10/6-106 (West 2000).

	The trial court entered a memorandum opinion and order

granting defendant's 2-619 motion to dismiss.  In its opinion,

the court found the allegations with regard to the failure to

perform an EKG were, essentially, a failure to perform an

adequate physical examination test, immunized by section 6-105 of

the Tort Immunity Act.  Further, failure to perform an EKG is

immunized by section 6-106 because plaintiff alleged the EKG was

required in order to diagnose the decedent's condition of

asystole.  Section 6-106 also immunizes failure to defibrillate,

according to the opinion, because it provides immunity from liability for the failure to prescribe treatment for a medical

condition.  

DECISION

	We are dealing with a statute that rewards medical indolence

and miscalculation resulting in harm to a patient.  That is, if

governmental medical personnel do not examine the patient, they

are immunized.  745 ILCS 10/6-105 (West 2000).  If they fail to

make a diagnosis, or fail to prescribe treatment, or if they make

an incorrect diagnosis, they are immunized.  745 ILCS 10/6-106(a)

(West 2000).  But negligent or wrongful prescribing of treatment

that results in harm is not immunized.  745 ILCS 10/6-106(c)

(West 2000).  Nor is there immunity for harm caused by a

negligent or wrongful act or omission in administering the

prescribed treatment afer a correct diagnosis.  745 ILCS 10/6-

106(d) (West 2000).

	Our task is to determine where in the statutory scheme the

plaintiff's allegations fit.

	All we have before us are the plaintiff's complaint and the

Physician's Report.  The City's section 2-619 motion to dismiss

admits the complaint is legally sufficient, but asserts an

affirmative defense which defeats the claim.  See Cosman v. Ford Motor Company, 285 Ill. App. 3d 250, 254, 674 N.E.2d 61 (1996).  The trial court's dismissal presents a question of law, so we

will conduct a de novo review.  Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993).  We are required to accept as true all well-pleaded facts in the

plaintiff's complaint.  Board of Managers of the Village Center Condominium Ass'n, Inc. v. Wilmette Partners, 198 Ill. 2d 132, 134, 760 N.E.2d 976 (2001).

	When we determine whether the Tort Immunity Act applies, we

bear in mind certain basic principles.  The Tort Immunity Act

governs whether and in what situations local governmental units

are immune from civil liability.  Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 375, 687 N.E.2d 1042 (1997).  The Act is in derogation of the common law and we must strictly construe

it against the City.  Snyder v. Curran Township, 167 Ill. 2d 466, 477, 657 N.E.2d 988 (1995).

	The City would be liable in tort for the same reasons

private tortfeasors would be liable, unless the Tort Immunity Act

or some other statute imposes conditions on that liability.  See

Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345, 692 N.E.2d 1177 (1998).

	Our primary goal in this case is to ascertain and give

effect to the intention of the legislature.  Barnett v. Zion Park District, 171 Ill. 2d 378, 388, 665 N.E.2d 808 (1996).  We cannot depart from the plain language of the Tort Immunity Act by

reading into it exceptions, limitations, or conditions that

conflict with express legislative intent.  Barnett, 171 Ill. 2d at 389.  Our duty is to apply the statute as written and as our

precedent dictates.  Easily said, but not so easy in the

application where the conduct of paramedics in a patient's home

under emergency conditions is at issue.

	Plaintiff's complaint and Physician's Report allege the

paramedics correctly diagnosed the decedent with a "heart attack"

and began to "treat" him.  That is, contends the plaintiff, once

there was a correct diagnosis, the omissions that followed-–no

EKG test, no defibrillation--were not immunized by the Tort

Immunity Act, even though the EKG was a required test to

determine whether the patient was in asystole, thus making

defibrillation useless. Plaintiff relies on section 6-106(d).

	The City's position is that "heart attack" is too vague and

general a diagnosis to trigger liability.  That is, contends the

City, the paramedics could not begin to treat the patient until

they learned whether he was in asystole.  That would be done by

conducting an EKG test.  An EKG is a diagnostic tool, not a

method of treatment.  Defibrillation might or might not then be

required.  It follows, then, says the City, no "treatment" was

prescribed or begun.  That means plaintiff's claim, at most,

amounts to a failure to diagnose or failure to prescribe, fully

immunized under section 6-106(a), or a failure to conduct an

examination, immunized by section 6-105 no matter when it occurs.

	Both sides claim support in the reported decisions.

	Plaintiff relies almost entirely on our decision in American National Bank & Trust Company of Chicago v. County of Cook, 327 Ill. App. 3d 212, 762 N.E.2d 654 (2001).  There, the mother's

doctor determined her unborn child was in a transverse lie, a

position that could result in asphyxia to the child.  Over the

next several weeks, the mother saw another doctor employed by the

defendant.  The complaint alleged the second doctor was negligent

in failing to perform an ultrasound or stress test to learn

whether the baby's position had changed, failing to perform

external manipulation to change the baby's position, and in

attempting natural delivery, which resulted in brain damage to

the child.

	The trial court held the Tort Immunity Act applied and

granted summary judgment for the County, but we reversed and

remanded.  We held:

			"Once diagnosis of a medical condition is made 

		and treatment of the condition is prescribed and

undertaken, any subsequent prescription or examination

		required to be made pursuant to that condition is part

				of the patient's treatment."  American National Bank, 327 

		Ill. App. 3d at 220.

	We applied the same provision plaintiff relies on in this

case, section 6-106(d).  The correct diagnosis had been made at

the hospital; there could be no immunity for actions that take place or are omitted in the course of administering the

prescribed treatment based on that correct diagnosis.  That

absence of immunity applies to an incorrect subsequent

prescription or examination or to a prescription, examination, or

treatment that did not take place at all.  In short, once the

correct diagnosis is made and treatment for it is prescribed, all

immunity bets are off.

	American National Bank is the reason why the plaintiff in this case emphasizes her claim that the paramedics correctly

diagnosed decedent's heart attack.  There and here, contends the

plaintiff, the correct diagnosis had been made and neither the

required treatment nor the required testing was done.  Therefore,

no immunity.

	The City contends the correct approach to "diagnosis" and

"treatment" is contained in Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 732 N.E.2d 528 (2000).  There, plaintiff's decedent visited Cook County Hospital several times

from September 1986 to February 1987 concerning lumps and pain in

her breast.  In October 1986, she was diagnosed with fibrocystic

breast disease and advised to return for follow-up appointments. 

In July 1988, she was diagnosed with breast cancer and died of it

in November 1989.

	The complaint against the County and its doctors alleged

they were negligent for failing to order a mammogram, failing to adequately perform examinations, and failing to administer proper

medical care.  Michigan Avenue National Bank, 191 Ill. 2d at 499- 500.

	The trial court granted summary judgment based on the Tort

Immunity Act.  The appellate court affirmed.  See 306 Ill App. 3d

392, 714 N.E.2d 1010 (1999).  The supreme court affirmed the

appellate court.

	The court found the terms "diagnosis" and "treatment" as

used in section 6-106 must be given their plain and ordinary

meaning, to be found in dictionaries.  "Diagnosis," among other

things, is "the art or act of identifying a disease from its

signs and symptoms," and an "investigation or analysis of the

cause or nature of a condition, situation, or problem."  Michigan Avenue National Bank, 191 Ill. 2d at 510.  "Treatment," among other things, is "the action or manner of treating a patient

medically or surgically," and "[t]he management and care of a

patient for the purpose of combating disease or disorder." 

Michigan Avenue National Bank, 191 Ill. 2d at 511-12.

	Thus armed, the court held:

			"Because the gravamen of plaintiff's action     

		against defendants is that defendants' failure either

		to perform examinations or to adequately perform 

		examinations led to defendant's failure to diagnose 

		Collins' breast cancer, which, in turn, proximately 

		caused her death, the immunity provided to local public 

		employees in section 6-105 and subsection (a) of

section 6-106 applies."  Michigan Avenue National Bank, 

191 Ill. 2d at 512.

	How, then, do we reconcile Michigan Avenue National Bank with American National Bank?  The ascendant facts that separate the two decisions are whether a correct diagnosis had been made

and treatment prescribed.  Negligent or wrongful prescribing of

treatment is not immunized.  See 745 ILCS 10/6-106(c) (West

2000).  The failure to prescribe treatment is.  745 ILCS 10/6-

106(a) (West 2000).

	In Michigan Avenue National Bank, there never was a correct diagnosis.  In American National Bank there was, and treatment had been correctly prescribed.

	Our analysis finds support in other appellate court

decisions.

	In Mabry v. County of Cook, 315 Ill. App. 3d 42, 733 N.E.2d 737 (2000), the plaintiff's decedent received a diagnosis of

asthma and was treated for that condition.  She later died of an

undiagnosed pulmonary embolism.  The plaintiff contended this was

negligent prescription of treatment, not immunized.  But the

court held the alleged negligence was not based on treatment

actually received for asthma, but on the treatment plaintiff

should have received and the diagnosis of pulmonary embolism the doctors should have made.  The County was immune for failing to

treat a condition it had failed to diagnose.  Mabry, 315 Ill. App. 3d at 57.

	In Carr v. Cook County Hospital, 323 Ill. App. 3d 184, 751 N.E.2d 119 (2001), the plaintiff alleged the hospital and its

doctors negligently failed to diagnose and treat a child's

ruptured tendon.  Testimony at trial revealed the defendants

never diagnosed or treated the ruptured tendon, but instead

thought they were dealing with a skin laceration and treated that

condition.  The trial court granted the defendants a directed

verdict, based on the Tort Immunity Act.  We affirmed, holding

the evidence related to a failure to properly examine or diagnose

the plaintiff's condition, conduct immunized by sections 6-105

and 6-106(a) of the Act.

	Finally, in Lloyd v. County of DuPage, 303 Ill. App. 3d 544, 551-52, 707 N.E.2d 1252 (1999), the court held the County's

Convalescent Center was not immune where plaintiff's complaint

alleged the Center's nursing care employees negligently

administered treatment diagnosed and prescribed by the decedent's

doctors.

	Where are we, then?  None of the decisions we refer to dealt

with paramedic conduct or lack of it.  There may or may not have

been a "diagnosis" and prescribed "treatment" that would exclude

tort immunity.  We do know the decedent in this case had a heartbeat and pulse when the paramedics arrived, but we know

little else about what happened next and what that means.  We do

not have the benefit of the kind of facts developed during trial

court proceedings in Michigan Avenue National Bank, American National Bank, and the other cases we have cited.

	We conclude principled resolution of the immunity issue

requires a better record.  There are enough factual allegations

in the plaintiff's complaint and the Physician's Report for us to

say the motion to dismiss should not have been granted.  But we

do not want to be understood as saying more than we are.  This is

a serious issue and should be dealt with seriously in further

proceedings.

	We do not rule on the merits of the City's motion, thus

leaving open for the City the pursuit of its immunity claim.  See

735 ILCS 5/2-619(d) and (e).  We assume there will be more

evidence of when and how diagnosis, prescription of treatment,

and/or treatment were performed or not performed.  Among the

questions to be addressed is whether, in the circumstances of

this case, the EKG actually was performed, and, if not, would it

have been part of the prescribed treatment for a correctly

diagnosed heart attack, or would it have been part of the

examination to determine the correct treatment of an undiagnosed

condition?  The answer could determine the existence of at least

some tort immunity for the City.

CONCLUSION

	For the reasons we have set out, the trial court's order

granting the City's motion to dismiss is reversed, and this cause

is remanded to the trial court for further proceedings.

	Reversed and Remanded.

	SOUTH, P.J., and HALL, J., concur.