Recovery for the Risk of Future Injury - A Creative Resolution
September, 2002
The Traditional American View
The plaintiff’s burden in civil litigation is proof of the claim by a preponderance of the evidence. Each element must be more probably true than not and the law, upon that standard, will not permit the recovery of speculative damages. Thus, the law has historically rejected any award of damages for future injuries unless the plaintiff proves that those injuries are reasonably certain to occur.
A Tough Case
The plaintiff in Dillon v. Evanston Hosp., 771 N.E.2d 357 (Ill. 2002), charging defendants with medical malpractice, faced the risk that a fragment of a catheter which had been left in a vein in her chest and which worked its way into her heart, would cause future injury. The floating fragment could not be safely removed and the risks of it remaining in her heart are infection, perforation of the heart, arrhythmia, embolism and further migration. Plaintiff had no evidence, however, to establish that such injuries were reasonably certain to occur. For instance, the risk of infection was no higher than 20%.
Focus Upon the Risk And Not the Damages
The jury awarded plaintiff $500,000.00 for her increased risk of those future injuries, pursuant to a jury instruction which stated that plaintiff could recover for pain and suffering “reasonably certain to be experienced in the future.”
The Illinois Supreme Court has historically reasoned that it would be unjust to require defendant to pay for injuries that are merely problematical. The Dillon court, however, focused upon the concept of risk, reasoning that it is the risk of injury which is compensable - regardless whether injury ever ensues. The Court reasoned that its holding was not violative of the prohibition against speculative injuries because the recovery is for the risk and not for the injuries. The plaintiff can recover because the plaintiff has established, to a reasonable degree of certainty, that the risk indeed exists. The Court also explained that this ruling is consistent with the established principle of single recovery; that is, that one action arising out of a tort must embrace prospective as well as accrued damages – as no successive actions may be brought.
A Solomon Resolution
The Court held that the compensation should not necessarily encompass the total injury. Reversing the jury award on the future injury element, the Court held that the compensation should reflect the probability of fruition of future injuries. Thus, the jury instruction should essentially tell the jury to compensate the plaintiff only to the extent that future harm is likely to occur. That compensation should be measured by multiplying the total compensation to which the plaintiff would be entitled if the harm were to occur by the proven probability of that harm.
James T. Ferrini
jferrini@clausen.com
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