The Illinois Supreme Court recently upheld a trial's court's decision to not include a pattern jury instruction on the loss of chance doctrine as well as nonpattern jury instructions on informed consent. The court agreed with the trial court and held that the instruction on proximate cause was sufficient for plaintiff to get a fair trial on his medical malpractice case.
Important Facts: Bailey v. Mercy Hospital
The plaintiff, Bailey, an independent administrator of the estate of Jill Hampton, filed a medical malpractice lawsuit against Mercy Hospital and Medical Center (Mercy) and several other medical professionals seeking damages for wrongful death and medical malpractice.
Hampton, who was 42 years old, passed away two days after she first sought treatment at Mercy for abdominal pain, vomiting, diarrhea and nausea. She reported to the medical staff that she had been suffering from this flu-like illness for the four days. . The on-duty nurse noted that the Hampton had an elevated heart rate, but did not present with fever or any respiratory problems. The triage doctor ordered a comprehensive metabolic panel and urinalysis. Later, when Hampton was examined a second time, the emergency physician again noted that Hampton had an elevated heartrate, but no fever, chest pain or shortness of breath. The physician started Hampton on IV fluids the medical staff continued to operate under the supposition that Hampton had a bad case of the flu because she was responding well to fluids.
Although she continued to suffer from abdominal symptoms, Hampton advised that she would like to leave the hospital and recover at home. The doctor did warn her that were multiple possible culprits for her symptoms, but did not explain that some possibilities could potentially be life-threatening.
When Hampton returned to the hospital for continuing issues, the doctor ordered a CT scan of her abdomen and a "heterogenous density" was found, but not identified. Hampton's symptoms now included a cough, continued stomach pain, shortness of breath, chest pain, low blood pressure, an abnormal respiratory rate and warm/dry skin. She waited in the emergency department's waiting room for four hours before being provided a bed in the main emergency department where she then passed away from myocarditis.
At trial, plaintiff's experts opined that Hampton died of toxic shock syndrome and the density found in her abdomen was in fact a retained tampon that subsequently caused sepsis and an infection that could have been treated effectively with antibiotics had it been diagnosed correctly.
Defendants countered that Hampton died of myocarditis, which could not have been treated with antibiotics. They presented expert testimony that there was no evidence of a bacterial infection found during the autopsy and no symptoms pointing to the possibility of toxic shock syndrome.
The jury returned a verdict for the defendants. On appeal, plaintiff argued that the trial court's exclusion of three jury instructions resulted in an unfair trial.. The instructions plaintiff requested, but were excluded, were: (1) Illinois Pattern Jury Instruction, Civil, No. 105.07.01 (2011)(the instruction on informed consent); (2) Illinois Pattern Jury Instruction, Civil, No. 5.01(2011) (relating to missing evidence or witnesses); and (3) A nonpattern jury instruction on the loss of chance doctrine.
The appellant court agreed with the plaintiff and held that the trial court abused its discretion in (1) refusing plaintiff's proposed instructions,(2) issuing a one line instruction on informed consent and (3) only providing the jury with a long form proximate causation instruction instead of the loss of chance instruction. The Illinois Supreme Court, however, reversed the appellate court and affirmed the trial court's decision.
Loss of Chance Pattern Jury Instruction
Plaintiff's proposed nonpattern jury instruction on loss of chance read: "If you decide or if you find that the 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 and death."
On appeal before the Illinois Supreme Court, defendants asserted that the appellate court was incorrect in its finding that the loss of chance doctrine is a separate theory from traditional proximate cause principles outlined in the pattern jury instructions. The defendants relied on Holton v. Memorial Hospital, 176 Ill.2d 95 (1997), where the court held that the loss of chance doctrine is covered in a jury instruction that lays out the traditional concepts of proximate cause. The defendants also argued that the appellate court's decision was against other published decisions finding that a nonpattern jury instruction on the loss of chance doctrine is not necessary for a fair trial. Plaintiff disagreed and argued that the pattern jury instruction on proximate cause was insufficient because it fails to instruct the jury completely and accurately on the law for loss of chance.
In Holton, the court held that: "The loss of chance doctrine in medical malpractice actions 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." Id. at 111.
In other words, the loss of chance analysis does not diminish the plaintiff's burden of proving causation under Illinois law. Instead, the loss of chance doctrine is in line with traditional proximate cause principles, which were detailed in Borowski v. Von Solbrig, 60 Ill. 2d 418 (1975). In fact, Illinois courts have consistently held that a trial court does not deny a plaintiff a fair trial when it refuses to issue a nonpattern jury instruction on the loss of chance doctrine. Lost chance is not a separate theory of recovery, but rather a part that is already included in the proximate cause analysis.
The Illinois Supreme Court concluded that a nonpattern jury instruction on the loss of chance doctrine is not necessary to accurately educate the jury regarding the applicable law and result in a fair trial. Therefore, it held that the trial court did not abuse its discretion when it denied plaintiff's request to include a nonpattern jury instruction on loss of chance.
Pattern Jury Instruction on Informed Consent
The trial court also denied plaintiff's request to include a jury instruction on informed consent that was modeled on pattern jury instruction IPI Civil No. 105.07.01.1. The proposed jury instruction read : "The plaintiff claims that the defendant doctor failed to inform Jill Milton-Hampton of the risks associated with pulmonary embolism, gastrointestinal bleed, infection and sepsis prior to being discharged the morning of March 17, 2012, which a reasonably careful emergency medicine physician would have disclosed under the same or similar circumstances; The plaintiff further claims that if the defendant had disclosed those risks, a reasonable person in Jill Milton-Hampton's position would not have left the hospital the morning of March 17, 2012; and The plaintiff further claims that Jill Milton-Hampton was injured, and that the defendant's failure to disclose the aforementioned risks was a proximate cause of her injury. The defendant denies that he failed to inform the plaintiff of those risks which a reasonably careful emergency medicine physician would have disclosed under the same or similar circumstances; denies that Jill Milton-Hampton was injured and denied any failure to disclose risks was a proximate cause of any harm or injury."
The trial court did not allow this requested instruction, but permitted plaintiff to add a line item in the issues instruction that introduced the concept of informed consent. In accordance with the trial court's ruling, the jury was instructed that "plaintiff claims that Hampton was injured and sustained damage, and that the defendants were negligent in that...the doctor failed to inform Hampton of the risks of leaving the hospital."
The defendant argued that plaintiff's proposed instruction on informed consent was correctly rejected by the trial court because the plaintiff's action did not involve an informed consent claim. The defendant argued that an informed consent theory of liability is limited to situations in which a patient gives consent to a medical treatment or procedure without being adequately informed of the risks of that treatment or procedure, and those facts were not present in this case.
The Supreme Court again agreed with defendants on this issue and held that the trial court was correct in finding that a pattern jury instruction on informed consent was not needed under the circumstances. Under Illinois law, a plaintiff must prove four elements in a malpractice action that is premised on lack of informed consent. Those elements are as follows:
- The physician had a duty to disclose material risks;
- Physician failed to disclose or inadequately disclosed those risks;
- As a direct and proximate result of this failure to disclose, the patient consented to treatment she otherwise would not have consented to; and
- Plaintiff was injured by the proposed treatment. Davis v. Kraff, 405 Ill. App. 3d 20, 28-29 (2010) (quoting Coryell v. Smith, 274 Ill. App. 3d 543, 546 (1995)).
The court noted that plaintiff's estate did not present any evidence that Hampton consented to medical treatment that she otherwise would not have if a proper disclosure of risks had been presented to her. There was also no evidence that she consented to any kind of medical treatment that later caused her injury.
The court further held that plaintiff was effectively attempting to push an inverse theory of informed consent by claiming that the defendants were liable for not performing additional medical treatment on Hampton before she left the hospital. This theory did not prove a violation of informed consent under the law. The Supreme Court further held that the trial court's instruction adequately informed the jury of plaintiff's claim that the doctor failed to properly warn Hampton of the risks she took when she made the decision to leave the hospital.
Therefore, the Supreme Court affirmed the decision of the trial court in full and reversed the appellate court's decision that a new trial was necessary.
Practice Pointers for Illinois Practitioners
- A separate nonjury pattern instruction for loss of chance is not required to ensure a fair trial. Longstanding legal precedent in the state supports the idea that the loss of chance doctrine is included in the analysis of traditional proximate cause principles outlined in the pattern jury instruction.
- A claim for lack of informed consent may not be sought inversely. The evidence presented must show that the plaintiff consented to a medical treatment without being fully informed of the possible outcomes and is subsequently injured by the treatment or procedure.
- A plaintiff may not claim that a doctor not providing her with every possible risk scenario upon discharge from the hospital is liable for failing to provide informed consent.
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