Illinois Appellate Court Reverses Medical Malpractice Verdict Over Instructions to Jury on Loss-of-Chance Doctrine

In this medical malpractice jury case, a Cook County Circuit Court judge rejected a request by the plaintiff, Jill Bailey. She had requested a non-pattern jury instruction on “loss-of-chance.” The judge’s decision resulted in a reversal of a defense verdict. Bailey alleged that Jill Milton-Hampton died because of a delay in diagnosing her suffering from sepsis or toxic shock syndrome when she twice went to the emergency room at Mercy Hospital in Chicago.

The judge relied on the case of Cetera v. DiFilippo, 404 Ill.App.3d 20 (2020) for the decision to refuse the instruction. The judge was justified in concluding that the long-form version of the pattern jury instruction on proximate causation, Illinois Pattern Jury Instruction (Civil) No. 15.01, adequately explains the loss-of-chance doctrine.

The Illinois Appellate Court for the First District reversed a judgment for the four emergency room physicians and their employer, Emergency Medicine Physicians of Chicago (EMP). They disagreed with Cetera stating that IPI 15.01 “does not distinctly inform the jury about loss-of-chance, i.e., that the jury may consider, as a proximate cause of a patient’s injury, that a defendant’s negligence lessened the effectiveness of the treatment or increased the risk of an unfavorable outcome to a plaintiff.

One of Bailey’s expert physicians testified that every hour of delay in giving antibiotics to a patient who presents with sepsis increases the risk of death by 7%. But the defendants insisted that Milton-Hampton died from acute viral myocarditis, which would not have been remedied with antibiotics.

The Illinois Appellate Court panel concluded that the plaintiff was denied a fair trial when the trial judge refused her instruction on the loss-of-chance. “A party has a right to have a jury instructed on his or her theory of the case if the facts in evidence or reasonable inference from those facts supports the theory.” Tsoukas v. Lapid, 315 Ill.App.3d 372 (2000). In this case, the appeals panel stated that the plaintiff presented sufficient evidence to support her loss-of-chance theory of recovery.

Under the loss-of-chance theory, a plaintiff may establish proximate cause “when the evidence presented shows to a reasonable certainty that defendant’s negligent delay in diagnoses or treatment lessened the effectiveness of the treatment.” Sinclair v. Berlin, 325 Ill.App.3d 458 (2001). A plaintiff establishes a prima facie case when she presents “some” evidence on every essential element. Hemminger v. LeMay, 2014 IL App (3d) 120392.

The plaintiff here submitted sufficient evidence to support her theory that negligent delay in diagnosis or treatment lessened the effectiveness of treatment. Plaintiff’s experts testified that the patient’s history, symptoms, and certain tests and laboratory findings in the emergency room were consistent with toxic shock syndrome and sepsis, which ultimately caused her death. However, three of the defendants diagnosed the patient with viral gastroenteritis, not sepsis, during her first two admissions to the emergency room.

Plaintiff’s experts testified that a patient has a better outcome if sepsis is treated early with antibiotics. Dr. Michael Noto, who testified that his opinions were made by a reasonable degree of medical certainty, specifically testified that each hour of delay from the time a patient presents with sepsis to the time she receives antibiotics increases the risk of death by about 7%.

Dr. Noto testified that the risk of dying increased when the physicians did not diagnose the patient with sepsis or administer an early treatment of antibiotics. Drs. Hilton Hudson and Harry Jacob, who also testified that their opinions were made with a reasonable degree of medical certainty, both specifically testified that, if Milton-Hampton had received the proper course of treatment, it was more probably true than not that she would have survived. Accordingly, plaintiff submitted sufficient evidence to support her loss-of-chance theory as it related to her case against the emergency doctors at EMP.

The plaintiff suggested non-pattern jury instruction on the loss-of-chance was as follows:

“If you decide or if you find that plaintiff has proven that a negligent delay in the diagnosis and treatment of sepsis in Jill Milton-Hampton lessened the effectiveness of the medical services which she received, you may consider such delay one of the proximate causes of her claimed injuries or death.”

The Illinois Appellate Court in this case found that this instruction met the criteria for a non-pattern instruction, as it was simple, brief, impartial, and free from argument. See Ill.S.Ct.R. 239(a). Thus, the trial court should have permitted the plaintiff to submit her non-pattern jury instruction on the loss-of-chance, which would have required the jury to consider whether a negligent delay in the diagnosis and treatment of sepsis in Jill lessened the effectiveness of the medical services that she received and was one of the proximate causes of her death.

The proximate cause instruction in IPI Civil No. 15.01 provides that the cause “may not be the only cause, nor the last or nearest cause” but does not distinctly inform the jury about loss-of-chance, i.e., that the jury may consider, as a proximate cause of a patient’s injury, that a defendant’s negligence lessened the effectiveness of the treatment or increased the risk of an unfavorable outcome to plaintiff. See Hemminger v. LeMay, 2014 Ill.App.3d 120392 (loss-of-chance in medical malpractices where the malpractice lessened the effectiveness of treatment or increased the risk of an unfavorable outcome).

Accordingly, because the plaintiff submitted sufficient evidence to support her loss-of-chance theory and because she was entitled to have the jury instructed on her theory of the case, the appeals panel found that she was denied a fair trial when the court refused her non-pattern instruction on loss-of-chance. Accordingly, the jury verdict in favor of the defendants was reversed and the case remanded for a new trial.

Bailey v. Mercy Hospital, 2020 IL App (1st) 182702 (Sept. 30, 2020).

Kreisman Law Offices has been handling wrongful death cases, medical malpractice cases, misdiagnosis of sepsis lawsuits, nursing home negligence cases, and birth trauma injury lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Lemont, Orland Park, Palos Hills, Palatine, Arlington Heights, Elmhurst, Schaumburg, Bolingbrook, Tinley Park, Worth, Highland Park, Olympia Fields, Hinsdale, Chicago (Rogers Park, Englewood, North Lawndale, East Garfield Park, Bronzeville, South Shore, Kenwood, Oakland, Pilsen, Uptown, Andersonville, River North, Hegewisch, East Side), Grayslake, Park Forest, Park Ridge, and Libertyville, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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