SIDEBAR – No Chance For A Non-IPI Instruction On The Lost Chance Doctrine In Medical Malpractice Actions After Gretencord-Szobar v. Kokoszka, 2021 IL App (3d) 200015 and Bailey v. Mercy Hospital and Medical Ctr., 2021 IL 126748

by Melinda S. Kollross

In Gretencord-Szobar, 2021 IL App (3d) 200015, this author defended a medical malpractice defense verdict in the Illinois Appellate Court, Third District, against plaintiff’s argument that a new trial should have been ordered because the trial court refused to give a non-IPI jury instruction explaining the lost chance doctrine to the jury. During the pendency of the Gretencord-Szobar appeal, our opponent sought to cite the appellate decision in Bailey v. Mercy Hospital and Medical Ctr., 2020 IL App. (1st) 182702, as supplemental authority to reverse the trial court’s decision because the First District in Bailey had approved giving such a non-IPI instruction explaining the lost chance doctrine for a jury. We took the position that the First District wrongly decided Bailey because the current body of Illinois precedent established that no such additional instruction was necessary where a jury had been properly instructed on proximate cause pursuant to IPI Civil No. 15.01. The Third District in Gretencard-Szobar agreed with our position and affirmed the defense verdict. The Illinois Supreme Court has now affirmatively concurred in Bailey, holding that no such non-IPI instruction explaining the lost chance doctrine is necessary and should not be given in any Illinois medical malpractice trial.

Bailey Facts

Plaintiff brought a medical malpractice action contending that plaintiff’s decedent died of toxic shock syndrome and sepsis caused by a retained tampon, which could have been treated by antibiotics if timely diagnosed by defendants. Defendants contended that decedent died of acute viral myocarditis, which could not be treated with antibiotics. Plaintiff had requested that the jury be instructed with a non-IPI instruction stating that:

“If you decide or if you find that the plaintiff has proven that a negligent delay in the diagnosis and treatment of sepsis in [decedent] 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.”

As courts have explained, this non-IPI instruction embodies a concept that enters into the proximate cause analysis in medical malpractice cases when a plaintiff alleges a defendant’s negligent delay in diagnosis or treatment has lessened the effectiveness of treatment. It’s called the “lost chance” doctrine.

The trial court denied this non-IPI instruction, and the jury returned a verdict for defendants. The Appellate Court reversed the defense verdict, holding that the non-IPI instruction tendered by plaintiff should have been given to the jury. The Appellate Court acknowledged the precedent opposing such an instruction, but nonetheless ruled that the non-IPI instruction had to be given stating that otherwise a plaintiff would never be able to explain a lost chance theory to a jury.

The Illinois Supreme Court granted review. It reversed the Appellate Court and affirmed the trial court’s decision refusing to give the non-IPI instruction.

The Illinois Supreme Court’s Ruling

The Supreme Court ruled that until the First District’s decision in Bailey, Illinois precedent uniformly held that no such non-IPI instruction explaining the lost chance doctrine was necessary where a jury was otherwise properly instructed on proximate cause by using IPI Civil No. 15.01. The Supreme Court specifically noted the Third District’s decision in Gretencord-Szobar as rightfully declining to follow the First District’s Bailey decision in reliance upon the uniform precedent rejecting the use of such a non-IPI instruction explaining the lost chance doctrine. According to the Supreme Court, when a jury is instructed on proximate cause through IPI Civil No. 15.01, the lost chance doctrine, as a form of proximate cause, is encompassed within the instruction given to the jury, and the circuit court’s refusal to give a separate nonpattern instruction on loss of chance does not deny the plaintiff a fair trial. Learning Point:Bailey teaches that even though a non-IPI instruction may accurately state the law, that does not ipso facto mean that the non-IPI instruction must be given to a jury where there is already an IPI instruction that completely and accurately covers the point. IPI Civil 15.01 completely and accurately stated the law on proximate causation, and thus an additional non-IPI instruction on the lost chance doctrine, while accurately stating the law, was unnecessary and not required to ensure a fair trial.