The opinion of the court was delivered by: Bucklo, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Barbara Graft sued Defendant National Railroad Passenger
Corporation ("Amtrak"), as well as other parties who have since been
dismissed, for injuries relating to a stroke she suffered while a
passenger on board an Amtrak train to Chicago. This case was originally
brought in Illinois state court, but was removed by Amtrak. I have
jurisdiction because Amtrak was incorporated by an act of Congress, and
the United States owns a majority of its capital stock. See
26 U.S.C. § 1331; 28 U.S.C. § 1349; Vasquez v. North County
Transit Dist., 292 F.3d 1049, 1060 (9th Cir. 2002). Amtrak now moves for
summary judgment. I grant the motion.
On March 27, 1998, Ms. Graft and her two adult daughters, Amber Nelson
and Carrie Wiberg, were passengers on board an Amtrak train traveling
from Little Rock, Arkansas to Chicago. At 3:14 p.m., the train left
Joliet Station en route to Chicago Union Station. Shortly after
departure, Ms. Graft suffered a stroke. At 4:10 p.m., the train arrived
at Union Station. By 4:26 p.m., two emergency units from the Chicago Fire
Department had arrived on the scene and made contact with Ms. Graft by
4:32 p.m. The paramedics left Union Station with Ms. Graff at 5:00 p.m.
and arrived at Northwestern Memorial Hospital at 5:10 p.m.
At the hospital, Dr. Teepu Siddique, a neurologist, determined that
Ms. Graft was a candidate for the administration of a drug known as tPA
because less than three hours bad passed since the onset of her stroke.
The medical consensus in this case is that there is an approximately 30%
chance of improvement or complete recovery in patients who receive LPA
within three hours of a. stroke. There are, however, also risks
associated with the administration of tPA. Dr. Siddique was unable to get
consent for this treatment from Ms. Graff's daughters within the three
hour window so tPA was not administered.
Ms. Graff alleges that Amtrak's failure to make arrangements so that
she would have gotten medical attention earlier caused or contributed to
her injuries, including a reduced chance of recovery. Summary judgment is
proper when "there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Popovits v. Circuit
City Stores, Inc.,
185 F.3d 726, 731 (7th Cir. 1999) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1996). In determining whether a genuine issue of
material fact exists, I "construe all facts in the light most favorable
to the nonmoving party and draw all reasonable and justifiable inferences
in that party's favor." Popovits, 185 F.3d at 731 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, the nonmoving
party "must set forth specific facts showing that there is a genuine issue
for trial." Fed.R.Civ.P. 56(e); see also Waldridge v. American Hoechst
Corp., 24 P.Bd 918, 920 (7th Cir. 1994).
In order for Ms. Graft to prevail in a negligence action against
Amtrak, she must show that Amtrak breached some duty that it owed her,
and that this breach proximately caused an injury to her. See Jones v.
Chicago HMO Ltd., 730 N.E.2d 1119, 1129 (Ill. 2000).*fn1 The only issue
raised by Amtrak in its motion for summary judgment is the issue of
Proving proximate causation traditionally requires a plaintiff to show
"that defendant's negligence `more probably than not' caused plaintiff's
injury." Holton v. Memorial Hosp., 679 N.L.2d 1202, 1207 (Ill. 1997).
Amtrak argues that because any individual stroke victim has only a 30%
chance of benefitting from timely administration of tPA, it is impossible
for Ms. Graff to show that it is more likely than not (a showing requiring
greater than 50% certainty) that her injuries would have been less severe
if given tPA. Amtrak's argument is premised on the idea that Ms. Graff's
claimed injury is the marginal increase in harm she suffered as a result
of not receiving tPA. Amtrak argues that because there is a 70% chance
that she would have suffered this harm even if its conduct had not caused
a delay in administering tPA, she could not show that Amtrak's conduct more
likely than not caused this injury.
This analysis misunderstands the nature of Ms. Graff's injury. Her
injury is not the marginal increase in harm that occurs when tPA is not.
administered. Her injury is the failure itself to administer tPA at all.
Had she been given tPA, she would have enjoyed a 30% chance at reducing
her harm. It is this lost chance, the lost opportunity to have even a 30%
chance at reducing her harm, that constitutes her injury. See generally
Doll. v. Brown, 75 F.3d 1200, 1205-06 (7th Cir. 1996) (Posner, J.)
(discussing probabilistic injuries). The Illinois Supreme Court
explicitly endorsed this "lost chance" doctrine in Holton v. Memorial
Hospital. 679 N.E.2d at 1213. In applying the doctrine, the court in that
case 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." Id. at 1211
(internal citation and emphasis omitted) Here, the failure to administer
tPA lessened the effectiveness of Ms. Graft's overall treatment. The tact
that Ms. Graff's chance of benefitting train tPA was only 30% is
irrelevant. See id. at 1213 ("We . . . reject the reasoning of cases
which hold, as a matter of law, that plaintiffs may not recover . . . if
they are unable to prove that they would have enjoyed a greater than 50%
chance of survival absent the alleged malpractice of the defendant.")
Amtrak cites several post-Holton decisions to support its argument that
chance of less than 50% effectiveness cannot establish proximate
causation. These cases, however, focus on the existence of specific
procedures that were negligently withheld, rejecting plaintiffs' claims
not because the expected benefit of any treatment was less than 50%, but
because plaintiffs failed to indicate specifically which beneficial
treatments were withheld. See Reed v. Jackson Park Hosp. Found.,
758 N.E.2d 868, 877-70 (Ill.App. Ct. 2001) (affirming summary judgment
for defendant where record did not disclose any potential treatment for
decedent's condition); Townsend v. University of Chicago Hosps.,
741 N.E.2d 1055, 1061 (Ill.App. Ct. 2000) (reversing jury verdict for
plaintiff where record did not disclose any potential treatment for
plaintiff's condition); Aguilera it Mount Sinai Hosp. Med. Ctr.,
691 N.E.2d 1, 7 (Ill.App. Ct. 1997) (affirming j.n.o.v. in defendant's
favor where there was no evidence that an earlier diagnostic exam would
have led to surgical intervention or any other treatment). In contrast,
in Meck v. Paramedic Services of Illinois, 695 N.E.2d 1321 (Ill.App. Ct.
1998), the Illinois Appellate Court reversed summary judgment for a
defendant where the plaintiff cited seven specific procedures not taken
(including failure to inject enough Epinephrine), even though plaintiff
could not show that the procedures would have increased decedent's chance
at survival by more than 50%. Id. at 1324. Here, there is no dispute that
Dr. Siddique sought to administer tPA, and that tPA gives patients a 30%
chance of improvement or full recovery. If Amtrak's alleged negligence
was the proximate cause of the failure to administer tPA to Ms. Graff, it
can be found liable.*fn2
In Illinois, the proximate cause analysis takes the form of a two-part
inquiry: Was the defendant's negligence "a material and substantial
element in bringing about the injury" (cause in fact), and, if so, "was
the injury of a type that a reasonable person would see as a likely
result of his or her conduct" (legal cause)? First Springfield Bank
& Trust v. Galman, 720 N.B.2d 1068, 1072 (Ill. 1999). Regardless of
whether Amtrak's alleged negligence was a cause in fact of the failure to
administer tPA to Ms. Graff, it was not the legal cause. Here, it is
undisputed that Ms. Graff arrived at the hospital at 5:10 p.m. (Def.'s
Statement of Facts ¶ 13.) There is some dispute regarding the exact
time of Ms. Graft's stroke,*fn3 but even assuming it took place
as early as 3:14 when the train left the station in Joliet, plaintiff was
in the hospital in less than two hours, leaving over a one hour window in
which to diagnose Ms. Graff and obtain consent "from her daughters to
administer tPA. It is undisputed that Dr. Siddique determined that Ms.
Graft fulfilled all necessary criteria for receiving tPA within the three
hour window. (Def.'s Statement of Facts ¶ 14.) Further, both daughters
admit that they had close to fifteen minutes to decide whether or not
to give their consent. (Nelson Dep. at 203-04); (Wiberg Dep. at 85.) The
decision to withhold consent was entirely the daughters'.*fn4
Amtrak neither caused the daughters to withhold consent, nor reasonably
could have anticipated that decision as a likely consequence of its conduct.
See First Springfield Bank, 720 N.E.2d at 1073. At best, Amtrak
created a condition (a shortened window of time for Ms. Graff's daughters
to consult with doctors and decide on consent) that made the injury
(failure to administer tPA) possible. The failure to administer tPA was
actually caused, however, by the subsequent independent acts of the
daughters in withholding their consent. Amtrak's alleged negligence in
creating the condition is thus not the proximate cause of the injury.
See Id. at 1071 ("[I]f the negligence charged does nothing more
than furnish a condition by which the in jury is made possible, and that
condition causes an injury by the subsequent, independent act of a third
person, the creation of the condition is not the proximate cause of the
Because Amtrak's alleged negligence was not the proximate cause of Ms.
Graff's failure to receive tPA, Amtrak's motion ...