The Illinois Supreme Court’s decision in Holton-vs-Memorial Hospital, 176 Ill.2d 95 (1997),1997 WL182871(1997) settled a conflict between the Appellate Courts of this state which has existed for over a decade.
The issue which divided the Appellate Courts was whether plaintiffs with less than a 50% chance of survival at the time of their physician’s negligence could prove that it was the defendant’s conduct which proximately caused the injury or death complained of.
The Supreme Court resolved this issue with a "yes".
In order to understand the significance of the Court’s decision, it is necessary to review the factual situations in which this issue arose as well as the case law dealing with that issue.
A veteran medical malpractice defense attorney once told me that there are really only two defenses to medical malpractice cases.
The first is the "stuff happens" defense in which the defense takes the position that even though something admittedly bad happened to the plaintiff the defendant did everything right and the bad result was nobody’s fault.
The second defense is the "so what" defense in which the defense argues that no matter what was done wrong it didn’t cause the bad result.
One of the most prevalent manifestations of this "so what" defense is the defendant’s argument that the plaintiff’s (for example) cancer was so far advanced when the defendant failed to diagnose it that the failure to diagnose was not the cause of death. Instead, the argument goes, the death was the result of the underlying disease process itself. In legal terms, the defense position is that the plaintiff cannot prove that the physician’s negligence was the proximate cause of the plaintiff’s death.
All plaintiffs in injury cases have the burden of proving that the defendant’s conduct was, more likely than not, a cause in fact of the injury or death complained of.
In the average automobile, premises, or product liability case, the proximate cause issue is generally quite straight forward. Did the accident cause the plaintiff’s broken leg or not?
However, in medical malpractice cases, this issue can become much more difficult because, almost by definition, the plaintiff has a condition of ill being which preexists the defendant’s alleged negligence.
In the failure to diagnose cases, the defense strategy was to try to win the proximate cause issue as a matter of law by playing a statistical numbers game. The game goes like this. The defense retains an expert willing to opine that the plaintiff’s chance of survival at the time of the alleged malpractice was less than 50%. The defense then argues that since the plaintiff had less than a 50-50 chance in the first instance, the plaintiff could not prove, as a matter of law, that it was more probably true than not that he would have survived the underlying illness if a prompt diagnoses had been made. In other words, the defense would argue that because of these statistical probabilities (or improbabilities) the plaintiff could never show that it was the defendant’s negligence rather than the underlying disease that was more probably than not the proximate cause of the death.
Two conflicting lines of case law developed as the appellate courts of this state were confronted with this issue.
One line of cases held that if a plaintiff could not show that he had a greater than 50% chance of survival at the time of alleged malpractice, that he was unable to prove proximate cause as a matter of law.
The decision in Russell-vs-Sabbiah, 149 Ill.App.3d 268, 500 N.E.2d 138(1986) is representative of this line of case law. Russell was a medical malpractice action in which it was alleged that the defendant physician misdiagnosed the minor plaintiff’s malady and that the resulting delay in rendering proper treatment caused increased injury to the plaintiff’’s right leg and prolonged his recovery. There was no issue as to the defendant’s alleged deviation from applicable standards of medical care. After completing expert discovery, the defendant moved for summary judgement on the basis that the plaintiff’s expert’s testimony did not establish proximate cause as a matter of law. At the hearing on the defendant’s motion, the plaintiff submitted an affidavit from his expert in which the expert opined, in part, that had the defendant properly diagnosed the condition earlier, the plaintiff would have had a fair chance (50-50) of making a complete recovery and of having a significantly shorter recovery period. The trial court granted the defendant’s motion and the plaintiff appealed. In affirming the trial court’s judgement the Appellate Court held:
"We are compelled to agree with the trial court that the Doctor’s statements with respect to proximate cause fall short of the requisite burden of proof. In a medical malpractice case, the plaintiff must prove that it is more probably true than not true that the defendant’s negligence was a proximate cause of the plaintiff’s injury (citation omitted). The doctor’s affidavit estimates the plaintiff’s chance at a better recovery, but for the negligence of Dr. Sabia, at 50-50. In other words, the probabilities are equal that the conduct of the defendant had no effect on the plaintiff’s condition, or that it proximately caused his injury. This failed to satisfy the plaintiff’s burden of proof on an essential element on the cause of action, and warranted the entry of summary judgement in favor of the defendant." (500 N.E.2d at p.141).
The second line of cases which dealt with this issue of proximate cause arrived at diametrically opposed conclusions from the first line of cases. These cases embraced the so called loss of chance doctrine and held that the traditional principles of proximate cause are satisfied by and can be harmonized with that doctrine. This doctrine held that evidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment lessened the effectiveness of treatment is sufficient to establish proximate cause.
Representative of this line of decisions is Chambers-vs-Rush Presbyterian St. Lukes Medical Center, 155 Ill.App.3d 458, 508 N.E.2d 426 (1987). Chambers was an action for survival and wrongful death arising out of the failure to properly monitor the plaintiff’s decedent while he was on intravenous feeding. This failure to properly monitor resulted in plaintiff’s decedent lapsing into a coma and suffering brain damage. A postmortem examination revealed a previously undetected pancreatic cancer. Predictably, there was conflicting medical testimony as to the cause of death. Plaintiff’s expert maintained that the death was the result of a combination of brain damage and the untreated cancer. Defendant’s expert testified that the pancreatic cancer was the sole cause of death. After a jury trial, a verdict was returned in favor of the plaintiff and the defendants appealed.
On appeal, the defendant argued that plaintiff failed to satisfy his burden of proof on the issue of proximate cause. The defendants argued that since plaintiff’s medical expert testified that the overall survival rate for cancers of the type decedent had was 33%, it was, as a matter of law, more probable than not that the decedent’s death would have occurred irrespective of any negligent medical treatment. In rejecting this argument, and affirming the jury’s verdict, the Appellate Court held: "It is fundamental law that in negligence cases, there may be more than one proximate cause of injury and that one is liable for its negligent conduct whether it contributed in whole or in part to the injury as long as proximate cause exists.....Whether a person would have had a 33% or 66%, or 100% chance to survive but for the negligence of another is a question of fact properly determined by a jury." (508 N.E.2d at p. 429)
These conflicting lines of cases left Illinois law in chaos. Neither plaintiff nor defense attorneys could find any clear guidance on whether or not a case would be dismissed as a matter of law or would be allowed to go to the jury. After more than a decade of confusion, the Illinois Supreme Court waded into the fray and came down decisively in favor of the loss of chance line of cases. Holton v. Memorial Hospital, (176 Ill.2d 95, 1997 WL 182871(1997).
Holton V. Memorial Hospital
Holton was a medical malpractice action alleging a negligent failure to diagnose a certain condition of ill being. The evidence at the trial revealed that the plaintiff, while hospitalized, suffered from a progressive onset of neurological symptoms. Nurses employed by the defendant hospital noted the progression of symptoms but failed to inform the treating physicians. The plaintiff’s progression of symptoms continued on the second hospital day when the plaintiff suffered numbness from the waist down, an inability to move her legs and a complete loss of bowel and bladder control. These conditions were reported to the plaintiff’s physicians.
At trial, both the primary care physician and the neurosurgeon testified that they were under the impression that the loss of motor function was a sudden event. These physicians, therefore, came to the diagnosis that the plaintiff’s condition was caused by a tumor-caused infarct of the blood supply to the spinal cord. The neurosurgeon further testified that if he had known that the onset of neurological symptoms was progressive he would have diagnosed an epidural abscess which can usually be beneficially treated by surgery. This misdiagnosis resulted in the plaintiff suffering permanent paralysis.
A jury returned a verdict in favor of the plaintiff and the defendants appealed. The Appellate Court affirmed, and the Supreme Court granted leave to appeal.
Before the Supreme Court, the defendant’s argued that the appellate court improperly diminished the plaintiff’s burden of proving proximate cause by accepting and applying the lost chance doctrine. Specifically, defendant argued that the defense was entitled to judgment as a matter of law for the plaintiff’s failure to present expert testimony that an earlier call to the plaintiff’s physicians would have prevented her paralysis.
The Supreme Court, citing Borowski v. Von Solbrig, 60 Ill.2d 418, 328 N.E.2d 301 (1975), held that the plaintiff was not required to prove that an earlier call would have resulted in a more favorable outcome.
The Court then discussed the proper relationship between the loss of chance doctrine and the plaintiff’s burden of proving proximate cause in a medical malpractice case. The Court outlined the conflict between the Appellate Courts in cases where a plaintiff’s estimated chance of surviving or recovering from an illness or injury was 50% or less and noted that most of the controversy between the districts stemmed from a difference of opinion as to whether the loss of chance doctrine improperly relaxes the traditional proximate cause standard.
After analyzing the two conflicting Appellate Court approaches, the Supreme Court ruled that the application of the lost chance of survival doctrine did not impermissibly lessen the plaintiff’s burden of proving proximate cause and overruled the decisions in Hare v. Foster G. McGaw Hospital, 192 Ill.App.3d 1031, 549 N.E.2d 778 (1989) and Netto v. Goldenberg, 266 Ill.App.3d 174, 640 N.E.2d 948 (1994).
The Supreme Court rejected the reasoning of cases which hold as a matter of law that plaintiffs may not recover for medical malpractice injuries if they are unable to prove they would have enjoyed a greater than 50% chance of survival absent the alleged malpractice of the defendant.
The Court reasoned that disallowing tort recovery in medical malpractice actions on the basis that a patient was already too ill to survive would operate as a disincentive to administer quality medical care to critically ill patients.
The Court’s opinion in Holton certainly does not ensure plaintiff victories in all loss of chance cases. Reduced to its essence, the Court’s opinion returns the issue of proximate cause to the trier of fact. It does not preclude defendants from arguing statistical probabilities against survival. It simply prohibits the trial court from deciding a case as a matter of law on the basis of statistics. As both the Supreme Court and various authors have observed "It is impossible to divine who would fall into one category (survivor) or the other (non-survivor). Not allowing such a case to be decided by a jury means that statistical proof of a less than 50% chance would be dispositive, even though no expert in the world could prospectively state who would survive and who would die. That is why doctors treat all patients, not just those with better than even odds". (176 Ill.2d at p.107)
The Holton decision properly puts this quintessential question of fact where it belongs—in the hands of the body historically best suited to answer such questions—the jury.
Ralph R. Hruby is Principal of Ralph R. Hruby, Ltd., Wheaton. His practice is concentrated in Plaintiff’s Civil Litigation. He received his Undergraduate Degree in 1977 from St. Francis College and his Law Degree in 1982 from John Marshall.