dissenting:
The well-pleaded facts in plaintiffs complaint and the reasonable inferences therefrom fail to demonstrate that defendants’ conduct was willful and wanton. Plaintiff has not identified the conduct that he alleges to be willful and wanton. Other than the fact that defendants did not administer albuterol, epinephrine, or Benadryl during the first seven minutes after their arrival on the scene, plaintiff has not pleaded any facts describing defendants’ conduct during this period. Despite this, plaintiff concludes that precisely this conduct demonstrates that defendants acted with utter indifference and conscious disregard for the safety of decedent. This is not an instance where plaintiff has alleged that defendants did nothing or even failed to administer care. Plaintiff has simply avoided any description of defendants’ conduct. In my view, it would be the exceptional circumstance where a plaintiff could plead facts that demonstrate that the defendant’s conduct was willful and wanton by alleging only that the defendant failed to take a very precise course of action and not otherwise describing the nature of the defendant’s conduct.
The remainder of plaintiffs complaint fails to compensate for this deficiency. The problem is that plaintiff’s allegations that would otherwise, if proven, demonstrate willful and wanton conduct are not well-pleaded facts but conclusions. For example, plaintiff has alleged that defendants knew that immediate administration of epinephrine, albuterol, and Benadryl was required to prevent decedent from dying and that defendants failed to timely administer these drugs. I do not question that if this startling allegation is taken as true it amounts to willful and wanton conduct; however, this allegation is a conclusion because plaintiff has not alleged facts from which such knowledge could be reasonably inferred. Plaintiff also alleges that “the failure to administer epinephrine for seven (7) minutes and [B]enadryl for eight (8) minutes, and the failure to ever administer albuterol, is more than simply a violation of all applicable emergency medical standards of care but is indicative of an utter disregard of those standards and an utter indifference for the life of [decedent].” Relatedly, plaintiff alleges that this conduct violated standard operating procedures for paramedics. Given their context, these allegations are also conclusions. In determining the legal sufficiency of a complaint, a court looks at the complaint as a whole. Lloyd v. County of Du Page, 303 Ill. App. 3d 544, 552 (1999). Thus, in one context, an allegation may be a proper allegation of fact, while in another context, the same allegation may not give an opponent sufficient information about the character of the evidence to be introduced or the issues to be tried, and it may be deemed a conclusion. J. Eck & Sons, Inc. v. Rueben H. Donnelly Co., 213 Ill. App. 3d 510, 514 (1991). While I can envision a case where it would be sufficient to merely allege that conduct so flagrantly violates the standard of care as to be willful and wanton, this is not the case, because plaintiff has not sufficiently described the nature of the conduct in question. As previously mentioned, plaintiff has not identified the nature of defendants’ conduct other than to allege that a very precise course of action was not taken. Additionally, plaintiff has not even identified any particular standard operating procedures that defendants violated. Therefore, plaintiffs allegation that defendants so flagrantly violated standards of care as to be guilty of willful and wanton conduct is a conclusion.
Moreover, plaintiffs inability to point to a particular standard of care or standard operating procedure is not attributable to a problem of access. It is true that where facts of necessity are within the defendants’ knowledge and not within the plaintiffs knowledge, a complaint that is as complete as the nature of the case allows is sufficient. Yuretich v. Sole, 259 Ill. App. 3d 311, 313 (1994). However, the transcripts of the proceedings below reveal that defendants tendered to plaintiff the applicable standard operating procedures for paramedics. Despite this, plaintiff.did not identify the relevant standard operating procedures in his complaint. Furthermore, even if plaintiff had alleged that defendants violated a particular standard operating procedure, plaintiff would still have the problem that he did not allege what the paramedics did for the first seven minutes that they were on the scene. I note that statements made by plaintiff to the trial court strongly suggest that the reason plaintiff failed to allege the particular standard operating procedures that defendants violated was that the standard operating procedures do not designate any time limits for administering the care that they mandate. Thus, they do not support (and, in fact, disprove) plaintiffs allegation that defendants violated standard operating procedures by adminisoering various treatments late. It is obvious to me that plaintiff, aware that the EMS Act insulates emergency medical personnel from liability for negligence, has simply affixed the parlance of “willful and wanton” to alleged conduct that is no more than negligent.
There is particule :ly good reason for conscientious adherence to the fact-pleading requirement in the context of the EMS Act because of the policy rationale behind it. In the EMS Act, the legislature sought to promote effective and efficient emergency response by trained medical personnel by limiting the risk of malpractice liability. Gleason v. Village of Peoria Heights, 207 Ill. App. 3d 185, 188-89 (1990). As Gleason recognized, fear of liability can have a perverse effect on a paramedic’s decision making. Society, being constituted of potential patients, has an interest in paramedics making their treatment decisions based on what is best for their patient. Where fear of liability skews a paramedic’s treatment decision, the patient suffers because he does not receive the treatment that the paramedic believes most effective. Gleason explained that “[e]mergency personnel must not be afraid to do whatever they can under less than ideal circumstances.” Gleason, 207 Ill. App. 3d at 189. Where courts are not diligent in enforcing the fact-pleading requirement, the purpose of the EMS Act is thwarted because complaints alleging quintessentially negligent conduct may survive motions to dismiss, thereby making it likely that paramedics will be haled into court based on the good-faith effectuation of their job duties.
The bottom line is that if these defendants were physicians rather than paramedics, and thus liable for negligence, these allegations of willful and wanton conduct would be seen as ridiculous. If this complaint is sufficient, then every complaint alleging medical malpractice should also contain a count of willful and wanton conduct. I respectfully dissent because the legislature intended to provide immunity to these defendants, not simply to require plaintiff to label negligent conduct as willful and wanton conduct.