Illinois Supreme Court Addresses Loss Of Chance & Informed Consent Jury Instructions In Medical Malpractice Suit

• Published date: 03 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Wood, Smith, Henning & Berman LLP
• Author: Mr Craig M. Derrig

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...