{ "id": 222612, "name": "SUSAN MECK, Indiv. and on Behalf of the Estate of Roy Meck, Deceased, Plaintiff-Appellant, v. PARAMEDIC SERVICES OF ILLINOIS et al., Defendants-Appellees", "name_abbreviation": "Meck v. Paramedic Services", "decision_date": "1998-05-26", "docket_number": "No. 1\u201497\u20140275", "first_page": "720", "last_page": "731", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 720" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "84 Ill. B.J. 458", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1996, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "240" }, { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "436 N.E.2d 598", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 1012", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3034312 ], "year": 1982, "pin_cites": [ { "page": "1016" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/1012-01" ] }, { "cite": "560 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "137 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251657 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "292-93" }, { "page": "293" }, { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0284-01" ] }, { "cite": "328 N.E.2d 301", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "60 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416375 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "424" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0418-01" ] }, { "cite": "500 N.E.2d 138", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "139-41", "parenthetical": "affirmed summary judgment where the plaintiff's expert indicated that, with earlier diagnosis by the defendant, plaintiff would have had a 50/50 chance of full recovery in a brief period of time, rather than the lengthy 24-month recovery experienced" } ], "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3459664 ], "year": 1986, "pin_cites": [ { "page": "271", "parenthetical": "affirmed summary judgment where the plaintiff's expert indicated that, with earlier diagnosis by the defendant, plaintiff would have had a 50/50 chance of full recovery in a brief period of time, rather than the lengthy 24-month recovery experienced" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0268-01" ] }, { "cite": "640 N.E.2d 948", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "954", "parenthetical": "\"Essentially the Northern Trust Co. and Chambers courts removed the proximate cause element from medical negligence actions\"" } ], "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 174", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887256 ], "year": 1994, "pin_cites": [ { "page": "181", "parenthetical": "\"Essentially the Northern Trust Co. and Chambers courts removed the proximate cause element from medical negligence actions\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0174-01" ] }, { "cite": "549 N.E.2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2505841 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "1038" }, { "page": "1035-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/1031-01" ] }, { "cite": "571 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 399", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2599848 ], "year": 1991, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0399-01" ] }, { "cite": "517 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 1093", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547390 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/1093-01" ] }, { "cite": "652 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 932", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258499 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "939" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0932-01" ] }, { "cite": "508 N.E.2d 426", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 458", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466144 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "463-65" }, { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0458-01" ] }, { "cite": "483 F. Supp. 581", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4129886 ], "year": 1980, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/f-supp/483/0581-01" ] }, { "cite": "493 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 479", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5667015 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "487" }, { "page": "487-88" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0479-01" ] }, { "cite": "632 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2870127 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0787-01" ] }, { "cite": "633 N.E.2d 1267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5373106 ], "year": 1994, "pin_cites": [ { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0750-01" ] }, { "cite": "633 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "158 Ill. 2d 240", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780293 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "249" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0240-01" ] }, { "cite": "669 N.E.2d 368", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 586", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159542 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "589" }, { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0586-01" ] }, { "cite": "679 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "176 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544914 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "107" }, { "page": "119" }, { "page": "107" }, { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0095-01" ] } ], "analysis": { "cardinality": 1015, "char_count": 24189, "ocr_confidence": 0.737, "pagerank": { "raw": 9.826669334865875e-08, "percentile": 0.5334482821199228 }, "sha256": "561de074ec5874fc2e30d41a7e67d3c9461701e99679bc0a6a22364238b9f57f", "simhash": "1:3a8ee75704119615", "word_count": 3987 }, "last_updated": "2023-07-14T20:46:46.961592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SUSAN MECK, Indiv. and on Behalf of the Estate of Roy Meck, Deceased, Plaintiff-Appellant, v. PARAMEDIC SERVICES OF ILLINOIS et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE O\u2019MARA FROSSARD\ndelivered the opinion of the court:\nThe issue on appeal is whether the trial court, in granting summary judgment in favor of the defendants, correctly rejected application of the lost chance doctrine. Under the lost chance doctrine, proximate causation exists if plaintiff can show to a reasonable degree of medical certainty that defendant\u2019s conduct proximately increased the risk of harm or lost chance of recovery. Holton v. Memorial Hospital, 176 Ill. 2d 95, 119, 679 N.E.2d 1202 (1997).\nDefendants prevailed on mirror motions for summary judgment. The only argument raised by each defendant was that plaintiff could not prove proximate causation as a matter of law because Roy Meek had less than a 50% chance of surviving his heart attack absent the alleged misconduct of the defendants.\nPlaintiffs contend that summary judgment must be reversed because, after the judgment in defendants\u2019 favor, the Illinois Supreme Court in Holton v. Memorial Hospital reconciled the traditional concept of proximate causation with the lost chance doctrine and held that the lost chance doctrine does not lower plaintiffs burden of proving causation. Holton, 176 Ill. 2d at 119.\nThe Holton case reviewed application of the lost chance doctrine in the context of a request by defendant to reverse the judgment entered upon the jury\u2019s verdict alleging that the plaintiffs failed to establish that the conduct of the defendant proximately caused plaintiffs injuries. Although unlike Holton, in this case we review application of the lost chance doctrine in the context of a summary judgment motion, we find Holton instructive.\nThe lost chance doctrine as applied in Holton recognizes that proximate causation in a medical malpractice case exists if plaintiff can show that defendant\u2019s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery to the injured party. Holton, 176 Ill. 2d at 119.\nApplying the reasoning of the Holton case, we find there is a genuine issue of material fact as to whether defendants\u2019 alleged willful and wanton conduct proximately caused the death of Mr. Meek. We believe this issue raises questions that should be resolved by the trier of fact. We hold that to sustain the burden of proving proximate cause, a plaintiff is not required to establish that the decedent had a greater than 50% chance of survival absent the defendant\u2019s alleged misconduct. We emphasize this application of the lost chance doctrine does not relax or lower plaintiff\u2019s burden of proving causation.\nFor the reasons that follow, we find that the trial court erred in granting defendants\u2019 motions for summary judgment and we reverse and remand for further action consistent with this opinion.\nI. FACTS\nOn the morning of March 14, 1993, Roy Meek, age 36, suffered cardiac arrest in his home in Berwyn. Mrs. Meek immediately telephoned for help from her neighbors, Maureen and Paul Gardner. Mrs. Gardner is a registered, intensive-care unit (ICU) nurse at Mac-Neal Hospital and is certified in advanced cardiac life support (ACLS). Mr. Gardner is a Berwyn firefighter who is certified in cardiopulmonary resuscitation (CPR). Mr. and Mrs. Gardner rushed to the Meek home to find Mr. Meek lying on the floor in the kitchen. Mr. Gardner called 9-1-1.\nMr. Meek\u2019s face was blue, he had no pulse, no chest movement, no sign of breathing and his mouth was full of vomit. The Gardners cleared the vomit from Mr. Meek\u2019s mouth and began CPR within approximately one minute of the cardiac arrest. They checked twice for a pulse, but at no point from the time they started CPR until defendants arrived 12 or 13 minutes later did they detect a pulse or independent ventilations.\nThe City of Berwyn had three ambulances on March 14, 1993. Unit 95 and Unit 96 were advanced life support vehicles, each of which was staffed by two paramedics employed by Paramedic Services of Illinois (PSI). Unit 97 was a basic life support vehicle and was staffed by emergency medical technicians (EMTs) employed by the City of Berwyn.\nBerwyn EMT Unit 97 and PSI Unit 95 arrived minutes after receiving Mr. Gardner\u2019s call. The Berwyn EMTs arrived first. PSI paramedics arrived 28 seconds later.\nThe EMTs found Mr. Meek lying on the kitchen floor of his home. When they arrived, the Gardners were already administering CPR to decedent. Defendants state that at this time Mr. Meek was in cardiac arrest, unconscious and \u201cunresponsive.\u201d He had no pulse, no blood pressure and was not breathing. His pupils were dilated and his skin was blue in color. The paramedics estimated that Mr. Meek\u2019s \u201cdowntime\u201d had already been 5 to 10 minutes by the time they arrived.\nThe PSI paramedics stated they defibrillated Roy Meek within seven minutes of his collapse, intubated him and were able to establish a pulse and blood pressure. PSI transported him to MacNeal Hospital with a normal pulse and normal sinus rhythm. However, although Mr. Meek\u2019s heart was resuscitated and he was delivered to the hospital alive and with a normal pulse, by the time he arrived at MacNeal he had suffered severe neurological damage. Mr. Meek began to have seizures and died four days later.\nPlaintiff\u2019s fourth amended complaint contains six counts, all of which allege willful and wanton misconduct on the part of defendants. Count I alleges willful and wanton misconduct of PSI under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 1996)). Count II alleges willful and wanton conduct on the part of PSI under the Survival Act (755 ILCS 5/27 \u2014 6 (West 1996)). Count III alleges willful and wanton conduct on the part of PSI under the Rights of Married Persons Act (Family Expense Act) (750 ILCS 65/15 (West 1996)). Count IV alleges willful and wanton misconduct of the City of Berwyn under the Wrongful Death Act. Count V alleges willful and wanton misconduct on the part of the City of Berwyn under the Survival Act. Count VT alleges willful and wanton misconduct of the City of Berwyn under the Family Expense Act.\nPlaintiff argues that the paramedics and EMTs violated their respective standards of care by, inter alia, willfully and wantonly engaging in the following misconduct or actions inconsistent with their training: (1) failing to provide oxygen; (2) failing to use an appropriate stretcher; (3) failing to use suction; (4) failing to provide basic CPR; (5) defibrillating Mr. Meek only once before intubation; (6) failing to administer enough Epinephrine; and (7) failing to perform CPR with two hands.\nDefendants PSI and the City of Berwyn filed mirror motions for summary judgment on the issue of proximate cause. Both defendants claimed that plaintiff could not prove proximate cause as a matter of law because Mr. Meek, having collapsed from cardiac arrest at home, did not have a greater than 50% chance of survival absent the alleged misconduct of defendants.\nOn September 10, 1996, the trial court granted defendants\u2019 motions for summary judgment without opinion. On December 13, 1996, the trial court denied plaintiff\u2019s motion for reconsideration without opinion. Plaintiff appeals from both orders.\nII. STANDARD OF REVIEW\nA motion for summary judgment is to be granted \u201cif the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2 \u2014 1005(c) (West 1996). A court must construe the evidence against the movant and liberally in favor of the opponent of the motion. Wells v. Enloe, 282 Ill. App. 3d 586, 589, 669 N.E.2d 368 (1996). Summary judgment is a drastic means of disposing of litigation, so the right of the moving party to obtain summary judgment must be clear and free of doubt. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627 (1994). Where doubt exists, the wiser judicial policy is to permit resolution of the dispute by a trial. Jackson Jordan, Inc., 158 Ill. 2d at 249.\nIn appeals from an order granting summary judgment, a reviewing court examines the record de novo. Jewish Hospital v. Boatmen\u2019s National Bank, 261 Ill. App. 3d 750, 755, 633 N.E.2d 1267 (1994). If the reviewing court determines that there is a genuine issue of material fact, then the summary judgment is to be overturned. Wells, 282 Ill. App. 3d at 589.\nIII. ANALYSIS\nAs a preliminary matter, we note that the Illinois Emergency Medical Services (EMS) Systems Act (Act) protects paramedics and emergency medical technicians from claims of mere negligence. 210 ILCS 50/3.150 (West 1996). However, the Act specifically authorizes suits for willful and wanton misconduct and acts or omissions inconsistent with the person\u2019s training. The Act in effect during the 1993 events involved in this case provided, in relevant part, as follows:\n\u201c(a) Any person, agency or governmental body licensed or authorized pursuant to this Act or its rules, who in good faith provides life support services *** in an emergency shall not be civilly of criminally liable as a result of their acts or omissions in providing those services unless the acts or omissions *** are inconsistent with the person\u2019s training or constitute willful or wanton misconduct.\u201d 210 ILCS 50/17 (West 1992).\nThe record reflects that the parties agree the Act applies to the case at hand. As such, this is an action for willful and wanton misconduct rather than ordinary negligence. An act is willful or wanton if it is intentional or if it is committed under circumstances exhibiting a reckless disregard for the safety of others. Affatato v. Jewel Cos., 259 Ill. App. 3d 787, 632 N.E.2d 137 (1994).\nThe issue on appeal is whether summary judgment was properly granted on the sole basis argued by each defendant that plaintiff could not prove proximate causation as a matter of law because the decedent had a 50% chance or less of surviving his heart attack absent the alleged misconduct of the defendant. Defendants contend the trial court properly granted summary judgment because plaintiff had not established it was \u201cmore probably true than not\u201d that the defendants\u2019 negligence was a proximate cause of Mr. Meek\u2019s injury.\nPlaintiff contends that the trial court erred in its determination that summary judgment is appropriate unless a plaintiff can prove that he or she had greater than a 50% chance of survival absent the defendants\u2019 misconduct. Plaintiff\u2019s argument in the trial court followed the line of cases that adopt the loss of chance or lost chance doctrine. As applied to a medical malpractice action, the lost chance doctrine refers to the injury sustained by a plaintiff whose medical providers are alleged to have negligently deprived the plaintiff of a chance to survive or recover from a health problem, or where the malpractice has lessened the effectiveness of treatment or increased the risk of an unfavorable outcome to the plaintiff. Holton, 176 Ill. 2d at 119.\nThe lost chance doctrine is based on the standard articulated in the Restatement (Second) of Torts, section 323 (1965):\n\u201cOne who undertakes *** to render services to another which he should recognize as necessary for the protection of the other\u2019s person *** is subject to liability to the other for physical harm from his failure to exercise reasonable care to perform his undertaking, if\n(a) his failure to exercise such care increases the risk of such harm.\u201d Restatement (Second) of Torts \u00a7 323 (1965).\nThe first case in Illinois to discuss proximate causation in the context of the lost chance doctrine and apply this Restatement section was Northern Trust Co. v. Louis A. Weiss Memorial Hospital, 143 Ill. App. 3d 479, 487, 493 N.E.2d 6 (1986):\n\u201c \u2018Evidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment *** lessened the effectiveness of treatment is sufficient to establish proximate cause.\u2019 \u201d Northern Trust Co., 143 Ill. App. 3d at 487-88, quoting James v. United States, 483 F. Supp. 581, 585 (N.D. Cal. 1980).\nUnder the lost chance doctrine, a plaintiff may seek damages resulting from a health care provider\u2019s negligent treatment even though the patient\u2019s chance of recovering from the existing illness or injury may be less than 50%. Chambers v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 155 Ill. App. 3d 458, 463-65, 508 N.E.2d 426 (1987). \u201c[0]nce it has been shown that a defendant\u2019s negligence increased the risk of harm to plaintiff, and that the harm was actually sustained, it then becomes a jury question as to whether the increased risk was a substantial factor in producing the harm.\u201d Chambers, 155 Ill. App. 3d at 464.\nMore recently, in Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932, 652 N.E.2d 1132 (1995), the court noted its support for the lost chance doctrine as articulated in Pumala v. Sipos, 163 Ill. App. 3d 1093, 517 N.E.2d 295 (1987), which held a plaintiffs evidence must show, to a reasonable degree of medical certainty that the negligent delay in diagnosis or treatment lessened the effectiveness of the treatment in order to establish proximate cause. Hajian, 273 Ill. App. 3d at 939. See also Galvin v. Olysav, 212 Ill. App. 3d 399, 403, 571 N.E.2d 218 (1991).\nIn contrast, defendants\u2019 argument in the trial court relied on cases that rejected the lost chance doctrine. These cases held that the lost chance doctrine relaxed the traditional proximate cause standard by allowing the causation issue to go to a jury where there was no evidence of a reasonable probability that the defendant\u2019s negligence caused the plaintiff\u2019s injury. Hare v. Foster G. McGaw Hospital, 192 Ill. App. 3d 1031, 1038, 549 N.E.2d 778 (1989).\nIn Hare, the court indicated that to establish proximate cause in a wrongful death suit, the plaintiff must show:\n\u201c[T]he patient would more probably than not have survived if he had been treated properly. If the patient would probably have died from the underlying illness, then it was the illness and not the doctor\u2019s malpractice which caused the death. Therefore, a patient whose doctor\u2019s malpractice deprived him of a 49% chance of surviving his illness would be denied recovery on the basis that it was more probable than not that he died from the illness. On the other hand, a patient deprived by malpractice of a 51% chance of survival would recover the full extent of damages for the death because it was more probable than not that the malpractice caused the death.\u201d Hare, 192 Ill. App. 3d at 1035-36.\nSee also Netto v. Goldenberg, 266 Ill. App. 3d 174, 181, 640 N.E.2d 948, 954 (1994) (\u201cEssentially the Northern Trust Co. and Chambers courts removed the proximate cause element from medical negligence actions\u201d); Russell v. Subbiah, 149 Ill. App. 3d 268, 271, 500 N.E.2d 138, 139-41 (1986) (affirmed summary judgment where the plaintiff\u2019s expert indicated that, with earlier diagnosis by the defendant, plaintiff would have had a 50/50 chance of full recovery in a brief period of time, rather than the lengthy 24-month recovery experienced).\nUnder the line of cases relied upon by defendants in the trial court, a plaintiff\u2019s estimated chance of surviving or recovering from an existing illness or injury must be greater than 50% in order for plaintiff to be able to establish the defendant\u2019s conduct proximately caused injury. On this basis, the trial court in the present case granted defendants\u2019 motions for summary judgment on September 10, 1996. However, on April 17, 1997, the Illinois Supreme Court in the Holton case harmonized the traditional concept of proximate causation with the lost chance doctrine.\nIn Holton, the trial court denied defendant\u2019s motion for judgment notwithstanding the verdict. The plaintiff contended that the failure of defendant\u2019s nursing staff to accurately report the progression of her decline into paresis was a proximate cause of her paralysis. The evidence at trial revealed that the plaintiff went to the hospital complaining of numbness below the waist and tingling in her leg. The next day she noticed increasing difficulty in moving her leg. She reported this to the attending nurses and aides, who failed to notify a doctor. The neurosurgeon on call testified that if he had been informed of the plaintiff\u2019s change of condition, he would have come to the hospital immediately and he would have had enough time to make a proper diagnosis and ease the pressure on the spinal cord.\nThe supreme court in Holton held that the loss of chance concept, when properly analyzed, does not relax or lower plaintiff\u2019s burden of proving causation. The court reaffirmed the standard for proximate cause found in Borowski v. Von Solbrig, 60 Ill. 2d 418, 424, 328 N.E.2d 301 (1975). In Borowski, the Illinois Supreme Court rejected the defendant\u2019s argument that the plaintiff should be required to prove that had the defendant not been negligent, a better result would have occurred.\nAt issue in Borowski was whether plaintiff\u2019s leg amputation was caused by defendant\u2019s failure to treat a circulatory problem in his leg that occurred after treatment for a fracture to the leg from a car crash. The court, in concluding that to require the plaintiff to prove a \u201cbetter result\u201d would inject too many collateral issues into a malpractice trial, stated: \u201cIt is unnecessary to extend the burden-of-proof requirements of a medical malpractice case beyond those of an ordinary negligence case by adding the further requirement that the plaintiff prove a better result would have been achieved absent the alleged negligence of the doctor.\u201d Borowski, 60 Ill. 2d at 424.\nThe supreme court in Holton discussed the Borowski standard and noted that applying the loss of chance doctrine does not relax or lower plaintiffs burden of proving causation:\n\u201cWe reaffirm the Borowski holding. The traditional statement of proximate cause requires plaintiff to prove that defendant\u2019s negligence \u2018more probably than not\u2019 caused plaintiffs injury. The \u2018better result test\u2019 is not a part of plaintiffs burden of proof.\u201d Holton, 176 Ill. 2d at 107.\nWhile this standard accurately reflects a plaintiff\u2019s burden of proof at trial, it does not accurately set forth a plaintiffs burden on a summary judgment motion. Gatlin v. Ruder, 137 Ill. 2d 284, 292-93, 560 N.E.2d 586 (1990). The purpose of a summary judgment proceeding \u201cis not to try an issue of fact but rather to determine whether there is an issue of fact to be tried.\u201d Beverly Bank v. Alsip Bank, 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598 (1982). A motion for summary judgment can only succeed \u201cif the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2\u2014 1005(c) (West 1996); see Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986); Gatlin, 137 Ill. 2d at 293. Where as in this case there are no depositions, reports or affidavits other than those of plaintiffs witnesses, summary judgment for defendant would be proper only if plaintiff failed to demonstrate an ability to offer evidence at trial on the proximate cause of his injury. Purtill v. Hess, 111 Ill. 2d at 229.\nPlaintiff asserts that, in light of Holton, the evidence has established a genuine issue of material fact as to whether defendants' proximately caused Mr. Meek\u2019s injuries and death. Defendants attempt to distinguish Holton by arguing that this is a case of first impression as Mr. Meek was dead before defendants reached him; therefore, the harm defendants were to guard against had already occurred and any chance Mr. Meek had at survival was already lost. Defendants contend that, absent defibrillation by the paramedics, Mr. Meek could not have been resuscitated. Thus, defendants\u2019 argument suggests that if Mr. Meek\u2019s chance of survival was zero percent absent intervention by the defendants, the conduct of the defendants could not have deprived Mr. Meek of any chance of survival becaus\u00e9 he was already deceased.\nWe note that defendants\u2019 contention that Mr. Meek was dead is contradicted by the fact that Mr. Meek was revived, transported to the hospital alive, and lived for four days. We reject defendants\u2019 further argument that they could not be held responsible for alleged misconduct because Mr. Meek\u2019s odds of survival when EMTs and paramedics arrived were not sufficiently high for defendants\u2019 actions to be causally related to his death.\nAs noted by the supreme court in Holton, \u201c[disallowing tort recovery *** on the theory that the patient was already too ill to survive or recover may operate as a disincentive on the part of health care providers to administer quality medical care to critically ill or injured patients.\u201d Holton, 176 Ill. 2d at 119.\nDefendants\u2019 argument further ignores evidence from the report of plaintiff\u2019s expert and treating physician, Dr. Babos:\n\u201cRoy Meek could have had an excellent chance of recovery *** he went on to have severe neurological damage, status epilepticus and eventual death because the EMTs and Paramedics *** grossly mismanaged this patient from start to finish.\u201d\nProximate cause is clearly an issue of material fact and \u201csummary judgment cannot be entered\u201d on the question of causation because it is preeminently a question of fact. Gatlin, 137 Ill. 2d at 293. Further, the question of whether a defendant\u2019s misconduct is a proximate cause of a plaintiff\u2019s injury or death is generally one to be determined by the trier of fact. Holton, 176 Ill. 2d at 107.\nApplying the standard established by statute and reaffirmed by the supreme court, we hold there is a genuine issue of material fact as to whether defendants\u2019 alleged willful and wanton conduct proximately caused the death of Mr. Meek. An issue of material fact regarding defendants\u2019 conduct was established from the totality of the evidence presented during the summary judgment proceeding.\nWe recognize that the trial court did not have the benefit of the Holton opinion when it granted defendants\u2019 motions for summary judgment. However, in light of the recent holding in Holton, we find that the trial court erred in granting summary judgment based on defendants\u2019 argument that plaintiff could not demonstrate proximate causation as a matter of law because Roy Meek had a 50% chance or less of surviving his heart attack absent the alleged misconduct of the defendants.\nThe statistical probability of Mr. Meek\u2019s survival is not relevant to the question of whether defendants\u2019 conduct caused injury or death. It may be relevant to the degree of injury or amount of damages, but that issue is for the trier of fact and cannot be determined as a matter of law at the summary judgment stage of the proceeding.\n\u201c \u2018Not allowing such a case to be decided by a jury means that statistical proof of a less than 50% chance would be dispositive, even though no expert in the world could prospectively state who would survive and who would die. That is why doctors treat all patients, not just those with better than even odds.\u2019 \u201d Holton, 176 Ill. 2d at 120, quoting T. Lavin & G. Ziebell, Lost Chance of Survival: Is it a Lost Cause in Illinois?, 84 Ill. B.J. 458, 462 (1996).\nFor the foregoing reasons, we find that the trial court erred in granting defendants\u2019 motions for summary judgment and we reverse and remand for further action consistent with this opinion.\nReversed and remanded.\nBUCKLEY, P.J., and GALLAGHER, J., concur.", "type": "majority", "author": "JUSTICE O\u2019MARA FROSSARD" } ], "attorneys": [ "David Lockard & Associates (Charles P. Hehmeyer, of counsel), and Schiff, Hardin & Waite (Paula J. Morency, of counsel), both of Chicago, for appellant.", "Cassiday, Schade & Gloor, of Chicago (Michael J. Morrissey, Catherine L. Garvey, Jennifer A. Keller, and Carolyn Quinn, of counsel), for appellee Paramedic Services of Illinois.", "Russell W. Hartigan & Associates, of Chicago (Russell W. Hartigan and James P. Newman, of counsel), for appellee City of Berwyn." ], "corrections": "", "head_matter": "SUSAN MECK, Indiv. and on Behalf of the Estate of Roy Meck, Deceased, Plaintiff-Appellant, v. PARAMEDIC SERVICES OF ILLINOIS et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1\u201497\u20140275\nOpinion filed May 26, 1998.\n\u2014 Rehearing denied June 23, 1998.\nDavid Lockard & Associates (Charles P. Hehmeyer, of counsel), and Schiff, Hardin & Waite (Paula J. Morency, of counsel), both of Chicago, for appellant.\nCassiday, Schade & Gloor, of Chicago (Michael J. Morrissey, Catherine L. Garvey, Jennifer A. Keller, and Carolyn Quinn, of counsel), for appellee Paramedic Services of Illinois.\nRussell W. Hartigan & Associates, of Chicago (Russell W. Hartigan and James P. Newman, of counsel), for appellee City of Berwyn." }, "file_name": "0720-01", "first_page_order": 738, "last_page_order": 749 }