Illinois Appellate Court Reverses Trial Court’s Denial of "Loss Of Chance" Non-Pattern Jury Instruction
For Immediate Release: November 30, 2020
Contact: Craig M. Sandberg, 833.726.3237, craig@sandberglaw.com
Chicago, IL – Back in July 2018 I wrote a post on this website asking, “Is Illinois Finally Ready For A ‘Lost Chance’ or ‘Loss Of Chance’ Jury Instruction”. Recently, a panel of the First District has answered that question in the affirmative. In Bailey v. Mercy Hospital and Medical Center, 2020 IL App (1st) 182702, “Plaintiff argue[d] that the trial court denied her a right to a fair trial and abused its discretion when it refused to give her nonpattern jury instruction on the loss of chance doctrine. She argue[d] she presented some evidence on every essential element of the doctrine.” Bailey, 2020 IL App (1st) 182702, ¶ 107. The Court “conclude[d] that plaintiff was denied a fair trial when the trial court refused her instruction on the loss of chance.” Id. at ¶ 108.
As long as Plaintiff presents sufficient evidence to support her loss of chance theory of recovery, a party has a right to have the jury instructed on her theory of the case if the facts in evidence or a reasonable inference from those facts supports the theory. “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 diagnosis or treatment lessened the effectiveness of the treatment. A plaintiff establishes a prime facie case when she presents “some” evidence on every essential element. Id. at ¶ 108 (citing and quotes omitted).
In Bailey, Plaintiff submitted a non-pattern jury instruction on the loss of chance, which stated 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 appellate court found this instruction met the criteria for a nonpattern 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 plaintiff to submit her nonpattern 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. As such, the trial court errored when it denied her request and only gave the long-form proximate causation instruction based on IPI Civil (2011) No. 15.01, which stated as follows: “When I use the expression ‘proximate cause,’ I mean a cause that, in the natural or ordinary course of events, produced the plaintiffs [sic] injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.”