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Is Illinois Finally Ready For A "Lost Chance" or "Loss Of Chance" Jury Instruction?

For Immediate Release: July 3, 2018

Contact: Craig M. Sandberg, 833.726.3237,

Chicago, IL – Illinois permits a plaintiff in a medical malpractice lawsuit to claim that a defendant's negligent treatment diminished her chances of avoiding or greatly minimizing her injury. Stated differently, the defendant's negligence caused the injured party a loss of the chance of a better outcome. However, since Illinois courts do not allow non-pattern instructions that state the law of lost chance, the Supreme Court of Illinois should adopt a pattern instruction for loss of chance cases to clarify the law. Because of the need for an instruction, as demonstrated in many cases applying the doctrine of "lost chance" and the right for parties to have the jury hear their theory of their case, parties in Illinois seeking to use the doctrine of lost chance should be entitled to a corresponding instruction.

A key distinction of loss of chance cases is that regardless of the negligence, the ultimate injury is likely to occur. Thus, if a court held that the underlying medical condition, such as cancer, is also a cause of the lost chance, then it would essentially be holding that in every loss of chance case, the two causes, the negligence and the underlying medical condition, produce an identical harm.

A central tenet of tort liability for medical malpractice is that a plaintiff must prove a physician's acts or omissions caused a patient's actual physical or mental injury before liability will attach. In a medical malpractice action, a plaintiff must establish: (1) the relevant standard of care; (2) the defendant's deviation from that standard of care; and (3) the deviation from the standard of care proximately caused the plaintiff's injuries. Reed v. Jackson Park Hosp. Found., 325 Ill. App. 2d 835, 842 (1st Dist. 2001). “Proximate cause in a medical malpractice case must be established by expert testimony to a reasonable degree of medical certainty.” Ayalya v. Murad, 367 Ill. App. 3d 591, 601 (1st Dist. 2006). To establish proximate cause, a plaintiff must prove that the defendant’s negligence more probably than not caused the plaintiff’s injuries. Hemminger v. LeMay, M.D., 2014 IL App (3d) 120392, ¶ 15. Proximate cause is generally a factual matter for a jury to decide. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995).

A number of states have jury instructions/charges that do instruct a jury on the law related to this theory of causation. For instance, according to the "Notes to Judge" contained in New Jersey's Model Civil Jury Charge ("MCJC") 5.50E, "[u]nder the sequence of this charge and accompanying interrogatory, the plaintiff has to prove (1) a deviation from accepted standards of medical practice, (2) that the deviation increased the risk of harm posed by the pre-existing condition, and (3) that the increased risk was a substantial factor in causing the plaintiff’s ultimate injury. The defendant is responsible for all of plaintiff’s injuries unless the defendant can prove (4) what portion of plaintiff’s injuries were the result of the pre-existing condition." See also Wash. Pattern Jury Instr. Civ. WPI 105.09.

When a jurisdictions allows recovery for loss of a chance, the recovery is based on one of two fundamental approaches. Under the first approach, courts adopt a "relaxed causation" standard framed by the Restatement (Second) of Torts section 323(a), which views the underlying injury as the ultimate injury sustained, usually death. Under the second approach, courts treat the actual loss of a chance as a distinct, compensable injury; thus, the loss of a chance is itself the underlying injury.

Section 323(a) of the Restatement (Second) of Torts provides: "One who undertakes, gratuitously or for consideration, to render services for another which he should recognize as necessary for the protection of the other's persons or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform hisundertaking, if (a) his failure to exercise such care increases the risk of such harm...." Under this standard, the plaintiff must show the defendant's acts or omissions increased the risk of harm to the plaintiff. The effect of section 323 is to "relax the degree of certitude" normally required of the plaintiff's evidence as to proof. Hamil v. Bashline, 392 A.2d 1280, 1286 (Pa. 1978). In increased risk of harm cases where section 323 applies, a prima facie case of liability is established if the plaintiff presents expert medical testimony, to a reasonable degree of medical certainty, that the defendant's conduct increased the risk of harm. Some courts describe this as a "relaxed" causation standard. However, this author does not agree that, as a practical matter, proof of causation is relaxed.

“Under the lost chance doctrine, a plaintiff may establish proximate cause by proving that the alleged negligence resulted in an injury in which the patient was deprived ‘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.’ Causation evidence may be presented through the plaintiff’s expert's opinion, to a reasonable degree of medical certainty, that the defendant’s alleged negligence ‘proximately caused the increased risk of harm or lost chance of recovery.’ To show proximate cause, the plaintiff is not required to show that ‘a better result would have been achieved’ or that the patient would have had a greater than 50% chance of survival or recovery, absent the alleged malpractice.” Vanderhoof v. Berk, 2015 IL App (1st) 132927, ¶ 61 (internal citations omitted) (citing and quoting Holton v. Memorial Hosp., 176 Ill. 2d 95, 111, 119 (1997)). As a proximate result of defendant's negligence, the injured party was deprived of the opportunity to receive early treatment and the chance of realizing any resulting gain in his life expectancy and physical and mental comfort. "No matter how small that chance may have been — and its magnitude cannot be ascertained — no one can say that the chance of prolonging one's life or decreasing suffering is valueless." James v. United States, 483 F.Supp. 581, 587 (N.D. Cal., 1980).

Illinois courts do not permit a jury instruction on “lost chance” or “loss of chance”. See Sinclair v. Berlin, 325 Ill. App. 3d 458, 758 N.E.2d 442 (1st Dist. 2001); Cetera v. DiFilippo, 404 Ill. App. 3d 20 (3d Dist. 2010); Lambie v. Schneider, 305 Ill. App. 3d 421 (4th Dist. 1999). These courts have held that the issue is subsumed within the “proximate cause” instruction. However, the IPI 15.01 “proximate cause” instruction does not inform a jury or otherwise correct misstatements of law regarding “lost chance”.

The highest courts of at least twenty states and the District of Columbia have adopted the loss of chance doctrine. See Murdoch v. Thomas, 404 So. 2d 580 (Ala.1981); Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605 (Ariz. 1984); Ferrell v. Rosenbaum,691 A.2d 641 (D.C.1997); Holton v. Memorial Hosp., 679 N.E.2d 1202 (Ill. 1997); Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000); DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986); Delaney v. Cade, 873 P.2d 175 (Kan. 1994); Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La. 1986); Parents v. Green, 836 N.W.2d 321 (Minn., 2013); Wollen v. DePaul Health Ctr., 828 S.W.2d 681 (Mo.1992); Aasheim v. Humberger, 695 P.2d 824 (Mont. 1985); Perez v. Las Vegas Med. Ctr., 805 P.2d 589 (Nev. 1991); Evers v. Dollinger, 471 A.2d 405 (N.J. 1984); Alberts v. Schultz, 975 P.2d 1279 (N.M. 1999); Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480 (Ohio 1996); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467 (Okla. 1987); Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978); Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000); Brown v. Koulizakis, 331 S.E.2d 440 (Va. 1985); Herskovits v. Group Health Coop. of Puget Sound, 664 P.2d 474 (Wash. 1983); Thornton v. CAMC, 305 S.E.2d 316 (W. Va. 1983); Ehlinger v. Sipes, 454 N.W.2d 754 (Wis. 1990); McMackin v. Johnson County Healthcare Ctr., 73 P.3d 1094 (Wyo. 2003), S.C., 88 P.3d 491 (Wyo.2004). One additional State's high court recognized loss of chance, Falcon v. Mem'l Hosp., 462 N.W.2d 44 (Mich. 1990), but the Legislature subsequently amended its medical malpractice statute to state that a "plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%." Mich. Comp. Laws Ann. § 600.2912a(2) (West), as amended by 193 Mich. Pub. Acts 78, § 1, (effective April 1, 1994). See also Boone v. William W. Backus Hosp., 864 A.2d 1 (Conn. 2005) (adopting loss of chance doctrine, but also apparently retaining requirement that decedent "had at least a 51 percent chance of survival" prior to negligence).

Ten states' high courts have, in contrast, refused to adopt the loss of chance doctrine. See Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984); Manning v. Twin Falls Clinic & Hosp., Inc., 830 P.2d 1185 (Idaho 1992); Fennell v. Southern Md. Hosp. Ctr., Inc., 580 A.2d 206 (Md. 1990); Ladner v. Campbell, 515 So.2d 882 (Miss. 1987); Cohan v. Med. Imaging Consultants, P.C., 900 N.W.2d 732 (Neb. 2017); Pillsbury-Flood v. Portsmouth Hosp., 512 A.2d 1126 (N.H. 1986); Kilpatrick v. Bryant,868 S.W.2d 594 (Tenn.1993); Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993); Jones v. Owings, 456 S.E.2d 371 (S.C. 1995); and Smith v. Parrott, 833 A.2d 843 (Vt. 2003). Two other states' high courts have held that loss of chance claims are incompatible with their states' wrongful death statutes, but have not decided whether loss of chance claims are otherwise actionable. See United States v. Cumberbatch, 647 A.2d 1098 (Del. 1994); and Joshi v. Providence Health Sys. of Or. Corp., 149 P.3d 1164 (Or. 2006).

Other states' high courts have not addressed the issue or have explicitly left the question open. See, e.g., Holt v. Wagner, 43 S.W.3d 128 (Ark. 2001) ("not closing the door to the future adoption of one of the versions of lost chance of survival" when issue is properly presented).

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