A recent Illinois Bar Journal article written by Jason L. Hortensteine laid out clearly the Illinois lost chance doctrine that has become the law since the Illinois Supreme Court delivered its decision in Holton v. Memorial Hospital, 176 Ill.2d 95 (1997). Illinois Bar Journal, Vol. 103, 2 (February 2015). The lost chance doctrine is applicable in cases claiming injury to an individual that arises in medical malpractice cases. The application of the lost chance doctrine was made in a medical negligence case where the patient is injured and the treatment is alleged to have (1) damaged or decreased the patient’s chance of survival or recovery or (2) either lessened the effectiveness of a patient’s treatment or subjected the patient to an increased risk of harm. Holton, 176 Ill.2d at 98.
The lost of chance doctrine applies even if the plaintiff has a chance of recovery that is less than 50% of survival or recovery prior to the occurrence of the medical negligent conduct.
In other words, although often times misunderstood, a plaintiff injured at the hands of a medical provider need only prove to a reasonable degree of medical certainty, more probably true than not, that the malpractice proximately caused an increased risk of harm or lost chance of recovery. It doesn’t matter how small or large that loss of chance is according to the current state of the law. Holton, 176 Ill.2d at 119.
Even though the lost of chance was just a small percentage, maybe substantially less than 50%, that does not lessen the burden of proof that the plaintiff must meet in order to prevail. The burden of proof remains to a preponderance of the evidence where more probably true than not is the measure. The Illinois Jury Pattern Instructions did not provide its own special instruction for loss of chance, but instead the jury instruction dealing with proximate cause would be:
“[w]hen I use the expression ‘proximate cause,’ I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines it with another cause resulting in the injury}.” Illinois Pattern Jury Instruction Civil (2011) 15.01.
The typical fact setting for application of the lost chance doctrine is in a case where a patient is treated or not treated for what amounts to a deadly disease such as cancer. The lost chance of survival that resulted because of the medical negligence as alleged, must be supported by expert testimony. That is to say that an expert must give sound expert testimony that but for the presence of the medical negligence, the patient would have had a percentage of chance of survival, but in the presence of the negligence that chance of survival was extinguished or diminished.
In a case referenced in Mr. Hortensteine’s article, Perky v. Portes-Jarol, 2013 IL App (2d) 120470, the family of the decedent filed a lawsuit for wrongful death and a survival action claiming that medical negligence by a physician was responsible for the loss of chance to cure the decedent’s pancreatic cancer. The family alleged that the doctor in delaying the diagnosis and treatment for the pancreatic cancer for what amounted to approximately 16 months was a cause of the recurrence of the pancreatic cancer and thus the decedent lost an opportunity for cure.
In that case, the medical expert, a surgical oncologist testified at trial that it was “impossible to say” with “certainty” at what cancer stage the decedent was when the first opportunity to treat occurred in February 2001. The doctor testified that the stage at that time could have been Stage IIA or could have been Stage I. The doctor stated that if it were Stage IIA as opposed to Stage IIB, the decedent would have been twice as likely to be cured but gave the percentages as 12% versus 6%.
The same doctor said that if the stage were IA, then the decedent was six times more likely to be cured. In just about every cancer case, the earlier detection in treatment, the better chance of recovery or cure. In that case, the court affirmed the jury’s verdict in favor of the family even though there was such a low cure rate for pancreatic cancer.
In another case reference in the Illinois Bar Journal article by Mr. Horntensteine, Hemminger v. LeMay, 2014 IL App (3d) 120392, the case centered around the death of a woman who was late diagnosed and treated with cervical cancer. Again, the issue was whether the expert’s testimony was sufficient enough to support the causal connection. In that case, the trial judge granted the defendant’s motion for directed verdict after the plaintiff’s case stating that the medical expert, an obstetrician/gynecologist failed in the effort to present sufficient evidence to establish that the defendant’s medical negligence proximately caused the decedent’s death. On appeal, the court reversed stating that the expert’s opinion is not that the patient would have had a better outcome had there not been medical negligence but only that the negligence “increased the risk of harm or a lost chance of recovery.” Hemminger v. LeMay, Id., 23. The court stated that the expert doesn’t have to give opinion testimony that the treatment that could have been given would have been more effective only if it were given earlier, but would testify that the chance that the plaintiff would have received a better treatment outcome was lost by the delay.
In this article, the author points out that discovery are critical for lost chance cases. By way of example, reference was made to the request to produce audit trails in these cases. In my practice, I ask for audit trails in any medical negligence case to verify and know what medical providers were involved with the patient’s care. Usually the audit trail document comes in the way of a summary showing date, time and medical provider. Another suggestion made by the author in this article was that request for production for the hospital records should be both electronic records as well as written records or paper records as a way of cross-checking for inconsistent entries and treatments.
As in all medical negligence cases, a series of motions in limine need to be thoughtfully and meticulously prepared in advance of the trial. A note as mentioned by the author is the fact that the opposing lawyers should be instructed by a motion in limine that the plaintiff in lost chance cases is not required to prove or show a greater than 50% chance of survival or recovery prior to the occurrence of the medical negligence. This kind of motion and order would prevent the jury from being misled or not understanding correctly the law. One of the best techniques that defendants’ attorney use in medical malpractice cases is to make the case more complicated than is necessary. The court’s order would hopefully be very specific in instructing counsel not to discuss or try to confuse the jury on that point.
The lost chance doctrine is not available in all states. Fortunately, Illinois law is clear on this point.
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