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April 17, 1997


The Honorable Justice McMORROW delivered the opinion of the court. Chief Justice Heiple, specially concurring. Justice Nickels, dissenting. Justice Harrison joins in this dissent.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

In this appeal we are asked to resolve whether application of the "loss of chance" doctrine in medical malpractice cases lessens the plaintiff's burden of proving proximate cause. This question has caused conflicting opinions among the Illinois appellate court panels. The loss of chance concept refers to the harm resulting to a patient when negligent medical treatment is alleged to have damaged or decreased the patient's chance of survival or recovery, or to have subjected the patient to an increased risk of harm.

Defendant, Memorial Hospital, requests this court to reverse the judgment entered upon the jury's verdict in favor of plaintiffs, Patricia and Frank Holton. Defendant argues that plaintiffs failed to establish that any acts or omissions of defendant's staff proximately caused plaintiffs' injuries. Alternatively, defendant contends that if the judgment is not reversed outright it must be reversed and a new trial ordered because defendant was prejudiced by conduct of plaintiffs' attorney and by the failure of the trial court to maintain impartiality. In addition, defendant challenges certain jury instructions, and also argues that it is entitled to a setoff in the amount of Mrs. Holton's past medical expenses which were reimbursed by insurance.

We allowed defendant's petition for leave to appeal. 155 Ill. 2d R. 315. For the reasons that follow, we reverse the judgment of the appellate court and remand for new trial.


In 1991, Patricia Holton and her husband Frank filed suit in the circuit court of St. Clair County against Memorial Hospital, Radiological Associates, Limited, and William G. Doubek, M.D., seeking damages for Patricia Holton's personal injuries and for Frank Holton's loss of consortium, which allegedly resulted from the defendants' negligence. Subsequently, plaintiffs settled their claims against William Doubek, Radiological Associates, and three other defendants named in a companion case. The trial court found that the $2,950,000 settlement was made in good faith and subsequently dismissed Doubek and Radiological Associates from the case at bar, leaving Memorial Hospital as the sole remaining defendant.

Testimony at trial revealed that Patricia Holton began to suffer severe back pain in late November or early December 1990. Her primary care physician, Dr. Doubek, ordered an X ray and a bone scan. These procedures indicated that the patient suffered from a degenerative process or compression fracture to a vertebra in her thoracic spine. Dr. Doubek scheduled Mrs. Holton to undergo a magnetic resonance imaging (MRI) on January 4, 1991, the earliest available date for nonemergencies. He also told her to go to the emergency room if her pain worsened.

At approximately 9:30 p.m. on December 26, 1990, Mrs. Holton went to the emergency room of Memorial Hospital in Belleville, Illinois, complaining of numbness below the waist and a tingling sensation in her left leg. Dr. Mark Jergens, an emergency room physician, examined Mrs. Holton. He found evidence of a low fever and an elevated white blood count, which indicated the presence of an infection. At this time, according to the trial testimony of Dr. Jergens, Mrs. Holton had not lost any motor skills. The doctor ordered a blood culture and a CAT scan. On the medical records Dr. Jergens noted that thoracic epidural abscess was a possible explanation for Mrs. Holton's symptoms. An epidural abscess is a collection of pus in the epidural area adjacent to the membrane which covers the spinal cord. Because emergency room physicians at the hospital did not have admitting privileges, Dr. Jergens called Mrs. Holton's primary care physicians to order her admission to Memorial Hospital.

Dr. Doubek examined Mrs. Holton early on the morning of December 27, 1990, and discovered that she had tingling, numbness, and weakness in her lower extremities. He was aware that her symptoms were consistent with either a bone infection called osteomyelitis or a tumor in her spine. Dr. Doubek ordered a neurological consultation.

Dr. Murphy, a neurosurgeon, examined Mrs. Holton in the late afternoon of December 27, 1990. She complained of numbness in her abdomen and legs but could still move her extremities. The CAT scan confirmed the existence of a compression fracture. The radiologist who interpreted the CAT scan was of the opinion that Mrs. Holton's pain was caused by a cancerous tumor.

Mrs. Holton testified that during the day of December 27, 1990, she noticed increasing difficulty in moving her left leg. She informed her attending nurses of this condition. However, the nurses' notes state only that the patient did not experience any significant change in her condition during the day. Between 6 and 7 p.m. on December 27, 1990, Mrs. Holton walked to the bathroom unassisted. After a few moments she attempted to rise and return to her bed. However, she could not move her legs or stand up and noticed a particular problem with numbness in her left leg. She rang the bell for help. Two nurses aides helped her into a wheelchair and from there, into her bed. Although she remarked when the nurses aides helped her from the toilet that her legs "didn't want to work," neither aide reported this incident to a supervisor, a nurse, or a doctor.

Registered nurse Barbara Ford cared for Mrs. Holton during the shift between 11 p.m. on December 27, 1990, and 7 a.m. on December 28, 1990. At some time between 1 a.m. and 5 a.m. on December 28, Nurse Ford determined that Mrs. Holton was having difficulties moving her left leg, but she did not believe that this was a significant change of condition.

After the next change in nursing shifts, between 8 and 9 a.m. on December 28, Mrs. Holton complained of numbness from the waist down and an inability to move her legs except for very slight movement in her right foot. She also lost bowel and bladder control. The nurse then on duty, Susan Schindler, informed Dr. Doubek and the neurosurgeon on call of these developments. Dr. Doubek came immediately and confirmed that Mrs. Holton had suffered a complete loss of motor control below the waist. Dr. Sprich, the neurosurgeon on call for Dr. Murphy, ordered tests to determine where the pressure on the spinal cord was located.

Dr. Doubek testified at trial that at the time of his diagnosis he was operating under the assumption that Mrs. Holton had suffered a sudden onset of paralysis because he had not been informed otherwise by the hospital staff or the charts and records. Accordingly, he initially thought it likely that her condition was caused by a tumor-caused infarct of the blood supply to the spinal cord, which would be consistent with sudden and complete loss of motor function. Defendant's nursing staff did not tell Dr. Doubek that Mrs. Holton's numbness and other symptoms of sensory deficits had been progressing over several hours to a state of motor impairment or partial paralysis. According to the neurological evidence adduced at trial, this escalation from tingling and numbness to paresis, or partial loss of motor function, indicates spinal cord compression caused by osteomyelitis (infection of the bone). Osteomyelitis can cause either an inflammation or an abscess that puts pressure on the spine, resulting in the progression of paralysis. Because Dr. Doubek was unaware that Mrs. Holton's apparently sudden paralysis had been preceded by a more gradual onset of declining motor function, Dr. Doubek determined that the most likely cause of plaintiff's condition was a cancerous tumor, requiring radiation.

Similarly, Dr. Sprich, the neurosurgeon on call for Dr. Murphy, testified that he would have come to the hospital immediately if he had been informed that Mrs. Holton was beginning to have trouble walking and moving her legs. By the time she lost bowel and bladder function, according to Dr. Sprich, her condition was irreversible. He further testified that patients suffering from neurological conditions whose symptoms are consistent with epidural abscess can usually be beneficially treated because there is sufficient time to confirm the diagnosis and perform surgery to ease the pressure on the spinal cord. Dr. Sprich testified that if cord compression caused by an epidural abscess is diagnosed within 24 hours of the occurrence of paresis, patients often have "an excellent neurological recovery" and, if caught at an early enough point in the paresis, such patients will be able to "move their legs."

Dr. Doubek and Dr. Sprich also explained why they agreed that the apparently sudden onset of Mrs. Holton's paralysis supported the diagnosis of cancerous tumor rather than osteomyelitis. Osteomyelitis is a rare occurrence in the absence of a prior surgical intervention or trauma to the spinal cord, and Mrs. Holton did not have such a history. Also, statistical probabilities favored the existence of cancerous tumor under the perceived suddenness of the paralysis, especially where, as here, there was no involvement of the disc area of the spine. Consequently, the doctors who diagnosed and treated Mrs. Holton concluded that the cause of her condition was a cancerous tumor and proceeded to treat her based upon that mistaken assumption.

On January 17, 1991, three weeks after her loss of motor function, Mrs. Holton's family transferred her to another hospital because she was not improving. At that hospital, Mrs. Holton was diagnosed with and treated for osteomyelitis. Her current condition is paraplegia with bladder and bowel involvement due to a spinal injury caused by upper thoracic vertebra osteomyelitis.

Following the trial, the jury returned a verdict against Memorial Hospital and in favor of Mrs. Holton in the amount of $8,706,500 and a verdict in favor of Mr. Holton on his loss of consortium claim in the amount of $110,000. Defendant filed a post trial motion seeking alternative relief including judgment n.o.v., a new trial on all issues, a new trial on damages only, and a remittitur of Mrs. Holton's future medical expenses. Defendant further sought to have its liability reduced by the amount of the plaintiffs' settlement with other defendants. The circuit court granted a remittitur in the amount of $1,500,000 but denied defendant's motion in all other respects.

The appellate court affirmed the judgment of the circuit court, as modified to reflect a reduction of the verdict by the amount of plaintiffs' settlement with other defendants, $2,950,000, pursuant to the Contribution Act. Holton v. Memorial Hosp., 274 Ill. App. 3d 868, 655 N.E.2d 29, 211 Ill. Dec. 369. The amount awarded to plaintiffs, as reduced on appeal, totals $4,366,500.


In this court, defendant challenges plaintiffs' proof of proximate causation and challenges the propriety of certain jury instructions. Defendant further argues that it was denied a fair trial because of plaintiffs' counsel's prejudicial remarks and a statement of the trial judge that damaged the credibility of defendant's attorneys and one of its witnesses. Finally, defendant contends that the trial court erred in refusing to set off from the judgment the amount of Mrs. Holton's medical expenses reimbursed by insurance. We address these contentions in turn.


Defendant first argues that the appellate court's opinion in the case at bar improperly altered, diminished, or diluted plaintiffs' burden of proving that defendant's negligence proximately caused plaintiffs' injuries. According to defendant, the appellate decisions "are in patent conflict on the sufficiency of evidence necessary to prove proximate causation in a medical malpractice case." See generally Comment, Lost Chance of Survival in Illinois: The Need for Guidance from the Illinois Supreme Court, 23 Loy. U. Chi. L.J. 155, 156 (1991). One line of decisions holds that proximate cause may be established by evidence, to a reasonable degree of medical certainty, that the hospital, doctor, or other health care provider "increased the risk of harm" to plaintiff or "lessened the effectiveness" of plaintiff's treatment by the defendant's negligent conduct. See, e.g., Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932, 939, 210 Ill. Dec. 156, 652 N.E.2d 1132 (1st Dist. 1995); Galvin v. Olysav, 212 Ill. App. 3d 399, 403, 156 Ill. Dec. 631, 571 N.E.2d 218 (5th Dist. 1991); Chambers v. Rush-Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458, 463-65, 108 Ill. Dec. 265, 508 N.E.2d 426 (1st Dist. 1987); Northern Trust Co. v. Louis A. Weiss Memorial Hospital, 143 Ill. App. 3d 479, 487-88, 97 Ill. Dec. 524, 493 N.E.2d 6 (1st Dist. 1986). The approach taken in these and similar cases has been termed the "loss of chance" or "lost chance" doctrine. See generally T. Lavin & G. Ziebell, Lost Chance of Survival: Is it a Lost Cause in Illinois ? 84 Ill. B.J. 458 (1996).

Another line of Illinois appellate cases has rejected the loss of chance doctrine as giving rise to a relaxed standard of proximate cause, one that is too conjectural to satisfy the traditional test of proximate causation. See, e.g., Netto v. Goldenberg, 266 Ill. App. 3d 174, 180-81, 203 Ill. Dec. 798, 640 N.E.2d 948 (2d Dist. 1994); Hare v. Foster G. McGaw Hospital, 192 Ill. App. 3d 1031, 1038, 140 Ill. Dec. 127, 549 N.E.2d 778 (1st Dist. 1989); Russell v. Subbiah, 149 Ill. App. 3d 268, 102 Ill. Dec. 516, 500 N.E.2d 138 (3d Dist. 1986); Curry v. Summer, 136 Ill. App. 3d 468, 476, 91 Ill. Dec. 365, 483 N.E.2d 711 (4th Dist. 1985).

Defendant contends that the appellate court's application of the "lost chance" doctrine in the case at bar allowed plaintiffs to establish their cause of action without being held to the traditional standard of proving causation approved by this court in Borowski v. Von Solbrig, 60 Ill. 2d 418, 424, 328 N.E.2d 301 (1975). Borowski requires proof of causation by the preponderance of evidence, otherwise referred to as the "more probably true than not true" standard, that the negligence complained of caused plaintiff's injury. Before evaluating the conflicting appellate decisions cited above, we revisit the Borowski standard of proximate causation in medical malpractice actions, and determine whether, under that standard, plaintiffs' evidence was sufficient to withstand defendant's motion for judgment notwithstanding the verdict.


In Borowski, this court did not directly address the loss of chance doctrine. Instead, the issue relevant to causation was whether an injured plaintiff who allegedly received negligent medical treatment could establish proximate cause without presenting evidence that a better result would have obtained if proper treatment had been administered. The plaintiff in Borowski was struck by an automobile while crossing a street and received severe injuries to his legs. The medical malpractice claim arose from the defendant hospital's alleged negligence in its treatment of the plaintiff's injuries, which resulted in the amputation of the plaintiff's left leg. The plaintiff's expert witnesses testified that in their opinion, plaintiff's leg could have been successfully repaired had proper tests been performed and procedures followed, and that delay in the plaintiff's surgery was a proximate cause of the amputation. Defendants countered that there was insufficient evidence to support the verdict in favor of plaintiff on the causation issue. Further, defendants contended that they were "entitled to judgment because the evidence did not establish that a better result would have been obtained if proper treatment were administered." Borowski, 60 Ill. 2d at 424.

This court rejected the defendants' argument, stating that it was "unnecessary to extend the burden-of-proof requirements of a medical malpractice case beyond those of an ordinary negligence case by adding the further requirement that the plaintiff prove a better result would have been achieved absent the alleged negligence of the doctor." Borowski, 60 Ill. 2d at 424. The court reiterated that under accepted Illinois Pattern Jury Instructions, plaintiff's burden of proving that defendants' negligence was the proximate cause of his injury was sustainable by proof that the proposition in issue-defendants' breach of duty caused plaintiff's injury-was more probably true than not true. Addressing the defendants' contention that the jury should not be permitted to speculate upon the relative amount of injury attributable to the fracture caused by the original accident and the amount attributable to the malpractice, the Borowski court stated, "[Speculation] can be guarded against by the use of appropriate instructions to the jury. It is not necessary to become involved in all of the collateral ramifications that the 'better result' test could inject into a case." Borowski, 60 Ill. 2d at 424.

We reaffirm the Borowski holding. The traditional statement of proximate cause requires plaintiff to prove that defendant's negligence "more probably than not" caused plaintiff's injury. The "better result test" is not a part of plaintiff's burden of proof. Issues involving proximate cause are fact specific and therefore uniquely for the jury's determination. When a plaintiff comes to a hospital already injured, as in the case of Borowski, or has an existing undiagnosed medical condition, as in the case at bar, and while in the care of the hospital is negligently treated, the question of whether the defendant's negligent treatment is a proximate cause of plaintiff's ultimate injury is ordinarily one of fact for the jury.

In the case at bar, defendant asserts that it was entitled to judgment as a matter of law for the failure of plaintiffs to present expert testimony that an earlier call to Mrs. Holton's physicians would have prevented her paralysis. In light of Borowski 's rejection of the "better result" test, Mrs. Holton was not required to prove that an earlier call to her physicians would have resulted in a more favorable outcome. Moreover, Mrs. Holton did not base her case solely on defendant's delay in the reporting of her condition. Instead, she contended that the failure of defendant's nursing staff to accurately report the progression of her decline into paresis was a proximate cause of her paralysis. The record contains evidentiary support for plaintiffs' theory. Both Dr. Sprich and Dr. Doubek explained that they based their erroneous diagnosis and treatment decisions upon inaccurate and incomplete information regarding Mrs. Holton's condition in the hours preceding her total loss of motor control. Dr. Sprich testified that when a patient's paresis (partial paralysis) is detected and treated early enough there is a good probability of avoiding or minimizing paralysis. Dr. Doubek testified that, to a reasonable degree of medical certainty, the preferred treatment for relieving pressure on the spinal cord caused by an abscess or edema is decompression or drainage. Had the doctors been given the opportunity to properly diagnose Mrs. Holton's condition based on accurate and complete information, they would have had the opportunity to treat her condition by ordering the appropriate treatment. Because of the hospital's negligent failure to accurately and timely report Mrs. Holton's symptomotology, the appropriate treatment was not even considered. In light of these facts, we conclude that defendant failed to establish that it was entitled to judgment n.o.v. based on plaintiffs' failure to prove that an earlier call to the treating physicians would have resulted in Mrs. Holton's recovery.

Defendant presents the additional argument that judgment n.o.v. is justified in the case at bar because Mrs. Holton's personal physicians rendered ineffective treatment both before and after being notified of her loss of motor skills; therefore, she did not establish that her physicians would have acted differently had they been earlier notified. In support, defendant cites to Gill v. Foster, 157 Ill. 2d 304, 193 Ill. Dec. 157, 626 N.E.2d 190 (1993), where summary judgment was entered in favor of the defendant hospital despite the failure of a nurse to notify a physician that a patient being discharged from the hospital complained of chest pains. Gill held that summary judgment was appropriate in that case because there was no indication that the doctor, who was aware of his patient's complaint and had decided it was not significant, would have done anything differently had the nurse repeated the patient's complaint to the doctor.

Gill is inapposite to case at bar because in that case the nurse's report of the complaint would not have caused any further action on the part of the doctor. In contrast, there is testimony in the instant case that the doctors would have undertaken a different course of treatment had they been accurately and promptly apprised of their patient's progressive paresis.

Judgment notwithstanding the verdict should not be entered unless the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. See, e.g., Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351, 211 Ill. Dec. 314, 654 N.E.2d 1365 (1995). We do not believe that the evidence in the case at bar so overwhelming favors defendant that no verdict contrary to defendant could ever stand. Mrs. Holton's treating physicians testified that they based their erroneous diagnosis and treatment decisions upon their belief that their patient's paralysis was of sudden onset rather than having been preceded by approximately 14 to 18 hours of paresis. It is uncontested that neither of the nurses aides who assisted Mrs. Holton into a wheelchair when her legs stopped working during the evening of December 28, 1990, informed the duty nurse or a doctor of the patient's motor impairment. It also appears uncontested that the nurses who were on duty during the hours after the bathroom incident did not report Mrs. Holton's difficulties in moving her legs as a significant change in her condition. It was not until she lost bladder and bowel function along with all ability to move her legs that the nurse on duty reported Mrs. Holton's condition to her doctors. While the parties' expert opinion testimony differs with respect to the consequences flowing from the nursing staff's failure to accurately and promptly apprise the doctors of Mrs. Holton's deteriorating motor ability, the record evidence permits the inference that defendant's negligent acts and omissions prevented her physicians from correctly diagnosing and treating her condition. We conclude that the evidence supports the jury's verdict. See, e.g., Wodziak v. Kash, 278 Ill. App. 3d 901, 215 Ill. Dec. 388, 663 N.E.2d 138 (1996) (holding that evidence was sufficient to establish that defendant's delay in diagnosing the decedent's illness lessened the effectiveness of the treatment and that plaintiff was not required to show in absolute terms that a different outcome would have occurred had the defendant made an earlier diagnosis of the decedent's condition).

We note that the Borowski court's formulation of proximate cause in the context of medical malpractice litigation is the same standard of proximate cause that is used in other types of negligence actions. Although it may appear more difficult to assess exactly what harm negligent medical treatment may have caused when the patient had a preexisting illness or injury, juries routinely are asked to determine whether, and to what extent, a defendant's negligent treatment proximately caused the injury upon which the patient's lawsuit is based. An Illinois Pattern Jury Instruction (IPI) on proximate cause that was given in the case at bar explains that the defendant's negligence need only be a cause of the harm, or "any cause which, in the natural or probable sequence, produced the injury" of the plaintiff, not "the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury." Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1995) (hereinafter IPI Civil 3d). Under the Borowski standard, plaintiff met her evidentiary burden of proving the elements of her case. Accordingly, we hold that, based on the evidence of record, defendant was not entitled to judgment as a matter of law, and the trial court did not err in denying defendant's motion for judgment notwithstanding the verdict.


Our conclusion that defendant was not entitled to judgment as a matter of law does not directly resolve defendant's contention that the appellate court's reliance on the loss of chance doctrine lessened plaintiffs' burden of proving proximate cause. Because our review of the conflicting appellate cases reveals a significant and ongoing dispute over the application of the loss of chance doctrine in medical malpractice actions, we further consider the issue.

"Lost chance" or "loss of chance" in medical malpractice actions refers to the injury sustained by a plaintiff whose medical providers are alleged to have negligently deprived the plaintiff of a chance to survive or recover from a health problem, or where the malpractice has lessened the effectiveness of treatment or increased the risk of an unfavorable outcome to the plaintiff. Under the traditional formulation of proximate cause, as reflected in Borowski, the plaintiff must prove that defendant's alleged medical malpractice more probably than not caused the claimed injury. Where there is evidence that a plaintiff's estimated chance of surviving or recovering from an existing illness or injury, absent the malpractice, is 50% or less, some courts have concluded that proximate cause under the traditional definition is lacking. In such cases, courts have entered judgments in favor of defendants as a matter of law. See, e.g., Russell v. Subbiah, 149 Ill. App. 3d 268, 102 Ill. Dec. 516, 500 N.E.2d 138 (1986) (entering summary judgment for defendant where evidence showed a 50/50 chance that a doctor's negligence ...

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