Holton v. Memorial Hospital

Annotate this Case

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the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

Docket No. 79957--Agenda 17--September 1996.
PATRICIA HOLTON et al., Appellees, v. MEMORIAL HOSPITAL,
Appellant.
Opinion filed April 17, 1997.

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.

Background
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. 274 Ill. App. 3d 868. The amount
awarded to plaintiffs, as reduced on appeal, totals $4,366,500.

Analysis
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.

I
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 (1st Dist. 1995); Galvin
v. Olysav, 212 Ill. App. 3d 399, 403 (5th Dist. 1991); Chambers v.
Rush-Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458,
463-65 (1st Dist. 1987); Northern Trust Co. v. Louis A. Weiss
Memorial Hospital, 143 Ill. App. 3d 479, 487-88 (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 (2d Dist. 1994); Hare v.
Foster G. McGaw Hospital, 192 Ill. App. 3d 1031, 1038 (1st Dist.
1989); Russell v. Subbiah, 149 Ill. App. 3d 268 (3d Dist. 1986);
Curry v. Summer, 136 Ill. App. 3d 468, 476 (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, , 424 (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.

A
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 d[id] 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, (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, , 351
(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 (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.

B
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 (1986) (entering summary judgment for defendant where evidence
showed a 50/50 chance that a doctor's negligence contributed to
plaintiff's prolonged recovery); see also Curry v. Summer, 136 Ill.
App. 3d 468, 476-80 (1985) (noting in dicta that plaintiff must
show better than even chance of survival absent alleged malpractice
to sustain burden of proof on proximate cause).
Other courts have recognized that victims of medical
malpractice should be able to seek damages arising from their
doctors' or hospitals' negligent treatment, notwithstanding that
the patients' chance of recovering from existing illnesses or
injuries may be less than 50%. See, e.g., Chambers v. Rush-
Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458, 463-
65 (1987) (evidence indicating that decedent had only a 33% chance
of surviving an undetected cancer even with prompt diagnosis and
treatment did not require conclusion that defendant's negligent
inducement of brain-damaging coma did not proximately cause
patient's death).
Although the legal literature and case law reflect varying
perceptions and applications of the loss of chance doctrine, in
general two opposing views of the doctrine have emerged--the
"relaxed causation" approach and the "separate injury" approach.
See 84 Ill. B.J. at 459. In Illinois, most of the controversy stems
from a divergence in viewpoint as to whether the loss of chance
doctrine relaxes the traditional proximate cause standard in
medical malpractice actions (see, e.g., Netto v. Goldenberg, 266
Ill. App. 3d 174, 180-81 (1994); Hare v. Foster G. McGaw Hospital,
192 Ill. App. 3d 1031, 1038 (1989)) or whether the traditional
principles of proximate cause are satisfied by and can be
harmonized with the loss of chance concept (see, e.g, Hajian v.
Holy Family Hospital, 273 Ill. App. 3d 932, 940 (1995); Chambers v.
Rush-Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458,
463-65 (1987)).
Northern Trust Co. v. Louis A. Weiss Memorial Hospital, 143
Ill. App. 3d 479 (1986), was the first Illinois case to
specifically identify and approve the loss of chance concept, in
the context of deciding whether proximate causation could be
established by evidence that the defendant's conduct "lessened the
effectiveness" of the treatment or "increased the risk of harm" to
a patient. In Northern Trust Co., the defendant hospital was found
liable for injuries arising from the medical care given to a
newborn infant. Although the individual nurses and doctors involved
were found not liable in negligence, the jury's verdict against the
hospital was upheld on the ground that the hospital was negligent
for its failure to provide a specially trained nurse to supervise
the nursery in accordance with board of health regulations.
With respect to the issue of causation, the hospital in
Northern Trust Co. claimed that its failure to provide a specially
trained nurse was not a proximate cause of the baby's brain damage.
However, the court cited evidence which indicated that a trained
nurse would have known from the symptoms that the baby's condition
was deteriorating and, had notification of such condition been made
without the 6«-hour delay that occurred in the case, the baby's
brain damage and retardation could have been prevented or reduced.
The expert evidence indicated that the delay increased the
likelihood of permanent damage. The court reviewed cases from other
jurisdictions and examined section 323 of the Restatement (Second)
of Torts (1965), which provides that "[o]ne who undertakes *** to
render services to another which he should recognize as necessary
for the protection of the other's person or things, is subject to
liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking, if (a) his
failure to exercise such care increases the risk of such harm ***."
The Northern Trust Co. court concluded that "the better rule is
that `[e]vidence which shows to a reasonable certainty that
negligent delay in diagnosis or treatment *** lessened the
effectiveness of treatment is sufficient to establish proximate
cause.' " (Emphasis added.) Northern Trust Co., 143 Ill. App. 3d at
487.
We believe that the "reasonable certainty" language referenced
above conforms to traditional principles of proximate cause.
Similarly, in Chambers v. Rush-Presbyterian-St. Luke's Medical
Center, 155 Ill. App. 3d 458 (1987), the court cited the reasoning
in Northern Trust Co. and upheld a medical malpractice verdict for
a plaintiff against the hospital's claim that the plaintiff failed
to establish that the cause of death was defendant's negligence
rather than the decedent's preexisting terminal cancer. In
Chambers, the plaintiff asserted that the defendant hospital
negligently treated the plaintiff's decedent, causing him to lapse
into a coma caused by high blood sugar. The patient suffered brain
damage as a result of the coma and received no treatment for a
cancer that subsequently was discovered during his autopsy. A
contested issue raised in defendant's appeal centered upon the
cause of death and whether plaintiff had adequately proved that
defendant's negligence proximately caused the patient's death, as
opposed to the cancer itself. The Chambers court cited the Borowski
decision for the proposition that a plaintiff is not required to
prove that a better result would have been obtained absent the
malpractice. The court also acknowledged that the circumstances
were more problematic when evidence existed that both medical
malpractice and an underlying disease or injury caused the
patient's death. Nevertheless, the Chambers court rejected
defendants' contention that the plaintiff did not sustain her
burden of proving proximate cause because of her failure to
demonstrate that decedent had more than a 50% chance of surviving
the cancer had he not been put into a coma through the negligence
of the hospital. Chambers, 155 Ill. App. 3d at 463.
We conclude that Northern Trust Co. and Chambers reflect the
correct application of proximate causation principles when a
defendant's negligent medical care is alleged to have denied the
patient a chance of survival or recovery. We note, however, that
other appellate decisions have expressly departed from the
rationale of Northern Trust Co. and Chambers on the ground that the
loss of chance analysis in those decisions altered or eliminated
plaintiffs' burden of proving proximate cause. See Hare v. Foster
G. McGaw Hospital, 192 Ill. App. 3d 1031 (1st Dist. 1989); Netto v.
Goldenberg, 266 Ill. App. 3d 174, 180-81 (2d Dist. 1994). Another
recent appellate decision has, in turn, rejected the Hare and Netto
analysis and held that loss of chance theory may be harmonized with
the traditional standard of proof set forth in Borowski. See Hajian
v. Holy Family Hospital, 273 Ill. App. 3d 932 (1st. Dist. 1995),
citing Pumala v. Sipos, 163 Ill. App. 3d 1093 (2d Dist. 1987). We
briefly discuss each of these cases.
Hare was a survival and wrongful death action in which the
decedent, who suffered from an untreatable condition, had been
turned away from defendant hospital. The appellate court affirmed
a directed verdict entered in favor of defendant on the ground that
plaintiff failed to establish the requisite causal connection
between the defendant's allegedly negligent failure to hospitalize
plaintiff's decedent and the patient's death from his untreatable
fatal illness. Because the evidence revealed that no medical
treatment was available for the decedent's fatal illness, the Hare
court determined that plaintiff had not established that the
defendant's failure to hospitalize the decedent "more probably than
not" was a cause of his death.
Instead of simply holding that the directed verdict was proper
because of insufficient evidence of proximate cause, the Hare court
went on to discuss the development of the loss of chance doctrine
and the conflicting interpretations of what standard of proof is
required to establish proximate cause. Apparently believing that
the Borowski standard of proximate cause would be undermined by
recognition of the loss of chance concept, the Hare court expressly
declined to follow the lead of such cases as Northern Trust Co. and
Chambers, stating, "[A]ny alteration in the burden of proof
regarding proximate cause as was done in [Hamil v. Bashline, 481
Pa. 256, (1978)] would have to come from the supreme
court." Hare, 192 Ill. App. 3d at 1038.
The Second District of the Appellate Court, in Netto, adopted
the Hare court's view that the loss of chance doctrine lessened
plaintiffs' burden of proving proximate cause and further expressed
its belief that "the Northern Trust Co. and Chambers courts removed
the proximate cause element from medical negligence actions."
(Emphasis added.) Netto, 266 Ill. App. 3d at 181. The Netto court's
disapproval of the loss of chance doctrine occurred in the context
of reviewing the plaintiff's non-IPI instruction purporting to
state a loss of chance theory. However, the Netto court did not
hold that the plaintiff's evidence of proximate cause was
inadequate and, in fact, reversed the judgment entered upon jury
verdict in favor of defendant and remanded for new trial because of
error.
In Pumala v. Sipos, 163 Ill. App. 3d 1093 (1987), another
panel of the Second District observed that a plaintiff need not
prove that a better result would have occurred absent the alleged
malpractice, consistent with Borowski, but also emphasized that a
plaintiff, to establish proximate cause, must show with a
reasonable degree of medical certainty that the negligent delay in
diagnosis or treatment lessened the effectiveness of the medical
services rendered to the plaintiff. Pumala, 163 Ill. App. 3d at
1098, citing Northern Trust Co, 143 Ill. App. 3d 479. The Pumala
court affirmed the trial court's order directing a verdict in favor
of the defendant in that case, however, because the evidence did
not establish the requisite nexus between the alleged malpractice
and plaintiff's injury.
Finally, in Hajian v. Holy Family Hospital, 273 Ill. App. 3d
932 (1995), a panel of the First District of the Appellate Court
engaged in a thorough analysis of the loss of chance doctrine and
followed the reasoning of Pumala. The court in Hajian stated, "We
do not agree with [Netto's] interpretation of Northern Trust and
its progeny, but rather, would resolve the conflict by harmonizing
the language of Northern Trust and Borowski as was attempted in
Pumala [v. Sipos, 163 Ill. App. 3d 1093 (1987)]." Hajian, 273 Ill.
App. 3d at 940.
As the above examination of the case law reveals, individual
decisions may be properly decided upon their facts yet still
conflict with other decisions in their analysis of the loss of
chance doctrine. The reasoning of the appellate panels in Pumala
and Hajian is consistent with Northern Trust Co. and Chambers and,
in our view, reflects the correct understanding of the loss of
chance concept. Conversely, decisions such as Hare and Netto
misleadingly suggest that loss of chance analysis ipso facto
results in a lowered standard of plaintiff's proof of causation.
Although the specific dispositions of the appeals in Hare and Netto
may have been justified, the loss of chance analysis contained in
the decisions has perpetuated confusion as to the proper standard
of proof in medical malpractice cases. Accordingly, we overrule
those cases to the extent that their analysis conflicts with our
holding in the instant case.
There is nothing novel about requiring health care
professionals to compensate patients who are negligently injured
while in their care. To the extent a plaintiff's chance of recovery
or survival is lessened by the malpractice, he or she should be
able to present evidence to a jury that the defendant's
malpractice, to a reasonable degree of medical certainty,
proximately caused the increased risk of harm or lost chance of
recovery. We therefore reject 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 that they would
have enjoyed a greater than 50% chance of survival or recovery
absent the alleged malpractice of the defendant. E.g., Curry, 136
Ill. App. 3d 468; Russell, 149 Ill. App. 3d 268. See Gatlin v.
Ruder, , 292-93 (1990) (specifically disapproving
the Russell court's entry of summary judgment upon evidence that
the patient's chances of survival absent the malpractice was
"50/50"). To hold otherwise would free health care providers from
legal responsibility for even the grossest acts of negligence, as
long as the patient upon whom the malpractice was performed already
suffered an illness or injury that could be quantified by experts
as affording that patient less than a 50% chance of recovering his
or her health.
Disallowing tort recovery in medical malpractice actions on
the theory that a patient was already too ill to survive or recover
may operate as a disincentive on the part of health care providers
to administer quality medical care to critically ill or injured
patients. Moreover, it has been noted that "[i]t is impossible to
divine who would fall into one category [survivor] or the other
[nonsurvivor]. 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." 84
Ill. B.J. at 462.
We hold that the loss of chance concept, when properly
analyzed, does not relax or lower plaintiffs' burden of proving
causation. Rather, the concept comports with the Borowski standard.

II. Trial Error
Although we have held that defendant was not entitled to
judgment notwithstanding the verdict, we conclude that defendant is
entitled to a new trial because of certain errors which had a
strong probability of prejudicing the jury. Specifically, we
determine that the trial judge's admonition to the jury that one of
the defense witnesses gave inaccurate testimony on a collateral
issue and was encouraged to do so by defendant's attorneys, coupled
with plaintiffs' counsel's repeated charges of defendant's
fraudulent misconduct, constituted reversible error under the
circumstances of this case.
To explain why these errors require the granting of a new
trial it is necessary to consider the factual context in which the
errors occurred. During trial, plaintiffs' counsel attempted to
demonstrate that defendant and its attorneys had coached key
witnesses for defendant to change their deposition testimony to
better fit the defense theory. By vigorous cross-examination and
through repeated remarks during closing argument, plaintiffs'
counsel vehemently argued the possibility that the hospital had
engaged in an attempt to cover up the nursing staff's negligence by
falsifying testimony. Additionally, because of an incident that
occurred just after Dr. Jergens' testimony in defendant's case,
plaintiffs' counsel apparently became convinced that defendant's
attorneys had encouraged Dr. Jergens to give false testimony with
regard to whether the doctor was a defendant in a companion lawsuit
filed by plaintiffs. Although the issue of Dr. Jergens' status as
a defendant in a different case was collateral to the trial issues,
plaintiffs' counsel subsequently asserted to the trial judge in
conference that Dr. Jergens had committed perjury, and that
defendant's counsel had aided and abetted such perjury.
The following facts taken from the record are relevant to this
issue. Dr. Jergens, the emergency room physician on duty at the
time of Mrs. Holton's admission, was asked at the end of his cross-
examination the following question by plaintiffs' counsel, Bruce
Cook:
"Q. You understand, do you not, sir, that you are a defendant
in a companion case to this one? Are your aware of that?
A. I'm not aware of that."
At the time of this question, Dr. Jergens had not been
formally served with summons and a copy of the complaint in a
companion lawsuit that plaintiffs had filed approximately a year
before the trial in the instant case. In fact, according to a
discussion in the transcript it appears that at the beginning of
trial, Cook had told defendant's lead trial counsel, Sandberg, that
he believed the other lawsuit had been dismissed. Moreover, as is
clear from the attorneys' arguments to the judge outside the
presence of the jury, the two attorneys disagreed as to whether a
person is properly considered a party defendant if he or she has
been named in a complaint but has never been served with process.
Sandberg maintained that Dr. Jergens was not a party in the
companion lawsuit until he was served with process. More
importantly, Sandberg argued that the doctor's potential status as
a defendant in a separate lawsuit was a collateral issue of no
relevance to the pending trial. In contrast, plaintiffs' counsel
took the position that if Dr. Jergens was aware of the existence of
the other lawsuit, he did not answer truthfully when questioned
during cross-examination as to his awareness of being a defendant
in that suit. Over objection, and in the jury's presence, the court
took judicial notice of Dr. Jergens' party status and allowed
plaintiffs' counsel to inform the jury, "Mark Jergens, who just
testified, is a party defendant in a pending lawsuit where my
clients have filed suit against him."
If that had been the end of the matter, no real prejudice to
defendant would have resulted because Dr. Jergens' status as a
party defendant in another lawsuit would have been relevant only to
show a potential bias in his testimony, which is an appropriate use
of cross-examination. However, instead of treating the dispute over
Dr. Jergens' party status as a difference of legal opinion,
plaintiffs' attorney chose to treat the doctor's answer as perjury
and to accuse opposing counsel of suborning or inducing such
perjury. In support of these serious charges, Cook informed the
court that after Dr. Jergens left the courtroom following his
testimony, the doctor fled when an employee of Cook's law firm
attempted to serve him with the complaint and summons in the
separate suit. Although service was effected, plaintiffs' counsel
demanded to have the witness brought back for further questioning,
claiming that the incident proved that Dr. Jergens knowingly
deceived the court when he denied awareness of being a defendant in
the other lawsuit. According to Cook, defendant's attorneys must
have warned Dr. Jergens to evade service, which indicated that
defendant's attorneys "again" were engaged in "inducing" a witness
to "tell a lie under oath."
Sandberg acknowledged that Dr. Jergens was aware of the
existence of the separate lawsuit but denied that he had instructed
Dr. Jergens how to answer the question because the issue had
"nothing to do with this lawsuit." Sandberg also told the court
that when he saw the papers for the lawsuit lying on counsel table
he informed Dr. Jergens of the likelihood that plaintiffs' counsel
would attempt to effect service. However, Sandberg reiterated his
belief that Dr. Jergens, who had not been served with the separate
suit at the time he testified, honestly stated his understanding of
his party status and did not give a false or inaccurate response to
Cook's question.
When Dr. Jergens returned to court the same afternoon in
response to the trial judge's order, he was questioned at some
length outside the presence of the jury. Dr. Jergens testified that
he knew of the existence of the companion lawsuit. He had formerly
worked at Memorial Hospital and had been deposed in the pending
lawsuit. It was his understanding, based on information from "many
sources," including defendant's attorneys, that he was not a party
defendant in the companion suit until formal service of summons was
effected. Dr. Jergens, who is not an Illinois resident, explained
that he ran from plaintiffs' process server as he was leaving court
because he did not want to be served with the lawsuit. He had asked
Kristen Hines, the hospital's in-house counsel, what to do to avoid
service and she told him to leave quickly. Dr. Jergens denied that
either Hines or Sandberg had told him how to answer if Cook
inquired upon cross-examination whether he was a defendant in the
other lawsuit.
During his questioning of Dr. Jergens outside the presence of
the jury, Cook argued with the witness over the honesty of his
belief that he was not a party in the separate suit, and outright
accused Dr. Jergens of lying to the jury at trial. Then, when
Sandberg remarked that the questioning was getting a "bit far
afield," Cook replied, "You're about ready to go in the slammer
here in a second ***." He referred to Hines as Sandberg's
"henchman" who advised the witness to flee. Continuously during the
hearing, Cook made remarks questioning the ethics of opposing
counsel and impugning their integrity and honesty.
Despite his hostile characterization of the situation, Cook
offered the trial court no authority to support his contention that
Dr. Jergens' testimony regarding his status as a party was legally
incorrect. Nor did he explain in what manner Dr. Jergens' answer
was factually untruthful. Nonetheless, he moved the court to hold
Dr. Jergens and the two attorneys for the hospital in contempt. He
stated that defendant's lawyers, Hines and Sandberg, should be
reported to the Attorney Registration and Disciplinary Commission.
Finally, Cook orally moved the court to strike the hospital's
pleadings, which would have the effect of defaulting defendant. He
told the court, "As a practical matter, Judge, you probably should
issue a directed verdict in my behalf anyway on the issue of
negligence. We'll save a lot of time. The doctor won't have to
spend another day. Ms. Hines and Mr. Sandberg rather than having to
be jailed will *** get their names in the books in the Appellate
Court when they appeal it."
Although the trial judge did not impose the severe sanction of
striking the hospital's answer, the court concluded that Sandberg
had been untruthful when he denied discussing the companion suit
with Dr. Jergens, and further concluded that the veracity of Dr.
Jergens on this collateral matter of his party status was
"important, very, very important." Consequently, the trial judge
read the following statement to the jury at the next session of
court, just before closing statements:
"Yesterday afternoon out of your presence, we
conducted a hearing concerning Dr. Mark Jergens'
testimony. I determined at the hearing that the doctor's
testimony concerning his knowledge of a lawsuit pending
against him was not true. I further determined that Ms.
Hines and Mr. Sandberg knew the statement was false and
had done certain things that encouraged the doctor to
believe his answer was accurate. You may consider this
fact in determining the credibility of Dr. Jergens'
testimony."
In our view, the controversy over Dr. Jergens' party status in
a separate lawsuit was a collateral issue of limited if any
relevance to the instant case. This court has noted that if a
question concerns a collateral matter the cross-examining attorney
must accept the answer given and is not allowed to attempt
impeachment on the issue. See Esser v. McIntyre, 169 Ill. 2d 292,
305 (1996); see also Tzystuck v. Chicago Transit Authority, , 242 (1988) (collateral evidence should be excluded to
prevent the jury from becoming distracted from the main issues).
Moreover, because the trial court took judicial notice of Dr.
Jergens' party status, plaintiffs' counsel was able to inform the
jury of the point he wished to make through Dr. Jergens' testimony,
i.e., that the doctor was a party defendant in the collateral
lawsuit. Therefore, we conclude that the trial court should not
have entertained Cook's request to hold a mini-trial into the side
issue of whether Dr. Jergens' party status answer was complete and
accurate.
Of greater concern are Cook's groundless accusations of
perjury and subornation of perjury in connection with this matter.
The record does not bear out such charges. Dr. Jergens told the
court it was his honest belief that he was not a defendant in the
other suit at the time of his trial testimony because he had not
been served with process. Opinions on points of law, even if
incorrect, are not perjurious. Similarly, a person's honest
understanding of his legal status cannot be viewed as constituting
an intentional misrepresentation of fact. Therefore, Cook's charge
of perjury should have been rejected.
We also question the basis upon which Cook insisted that
Sandberg lied to the court when he initially denied having
discussed the separate suit with Dr. Jergens. The transcript
indicates that Sandberg subsequently corrected himself by
acknowledging that after seeing the papers for the separate lawsuit
lying on counsel table, he informed the doctor of his belief that
plaintiff planned to serve him in court. Sandberg admitted
discussing the legalities of service of process, but denied that he
had specifically told Dr. Jergens how to answer any questions at
trial concerning Dr. Jergens' party status. Indeed, Sandberg stated
that he did not believe the issue was relevant. Dr. Jergens, in his
testimony, corroborated Sandberg's representations that the subject
of how to answer questions regarding Dr. Jergens' party status was
not discussed. Dr. Jergens also acknowledged having talked to
Sandberg and others in the past regarding the legal significance of
service of process.
We conclude that the record contains no sound basis for
finding that Sandberg intentionally misled the court. Even if
Sandberg misspoke in his initial denial of having discussed the
separate lawsuit with Dr. Jergens, it is clear from the context
that he was attempting to respond to Cook's specific accusation
that he had coached the witness on how to answer the party status
question. We conclude that Cook's motion for sanctions based on
perjury or subornation of perjury was not supported by the record
and was meritless.
We hold that the trial court abused its discretion in bringing
to the jury's attention its personal belief that Dr. Jergens had
testified falsely and had been led to do so by defendants'
attorneys. This court has stated that a trial judge should refrain
from conveying to the jury his or her opinions on ultimate matters
of fact or the credibility of witnesses and the weight to be given
their testimony. See People v. Santucci, , 98 (1962).
In the case at bar, the prejudicial impact of the trial court's
statement upon the jury can hardly be overstated. The jury was not
apprised of the legal basis upon which Dr. Jergens' opinion of his
party status rested, nor was the jury told of the circumstances
under which the charge of attorney misconduct was made. Instead,
the trial court told the jury, as proven fact, that Dr. Jergens
had, in effect, lied at the behest of defendant's attorneys and
that the jury could consider that "fact" in determining the
witness' credibility. This undoubtedly had a devastating impact on
the jury's perception of defendant, its lawyers, and its witnesses.
By its unwarranted remarks to the jury, the trial court placed its
neutrality in issue. Therefore, we hold that defendant was denied
a fair trial and is entitled to a new trial. See, e.g., Forest
Preserve District v. Wike, , 57 (1954) (judge should
not make comments reflecting on the integrity of counsel in the
presence of the jury); see generally A. Hartman, The "Whys" and
"Whynots" of Judicial Comments on Evidence in Jury Trials, 23 Loy.
U. Chi. L.J. 1, 19-21 (1991).
We note further that the prejudicial impact of the trial
judge's remarks was heightened by the immediately following closing
argument of Cook, who riddled his summation with references to
coached and deceitful hospital witnesses and manipulative
attorneys. For example, Cook claimed that the rules of trial had
been "shamelessly ignored" by the defense, including the rule that
attorneys should not "counsel or assist a witness to testify
falsely." Cook commented that the nurses and nurses aides were
"nice people" who had been encouraged to "modify their testimony."
According to Cook, his was the profession of Abraham Lincoln and
Daniel Webster and the Declaration of Independence, while the
defense attorneys profession was that of "John Dean, John
Erlichmann, people who were so interested in winning that they
violated the rules." Cook told the jury that the probable reason
for the "lawyer misconduct in this case" was that Mrs. Holton
sustained terrible damages. He further informed the jury that it
had been the victim of "distortion of the truth" by "the named
partner in a large St. Louis law firm."
We believe that these remarks were of a type likely to arouse
passion and prejudice in the jury, particularly in light of the
trial judge's comments undermining Dr. Jergens' credibility and the
lawyers' integrity. Therefore, the prejudicial remarks contributed
to the trial court's error and combined with that error to deny
defendant a fair trial under the circumstances.
It is true that where there is record evidence in support of
a claim that opposing counsel or parties falsified evidence or
encouraged witnesses to change their trial testimony, counsel may
fairly comment upon such evidence. If a witness' trial testimony
significantly differs from his or her deposition testimony,
opposing counsel may exploit such changes by traditional means of
impeachment. However, modifications or additions to a witness'
trial testimony which were not expressly stated in that witness'
pretrial deposition do not, in and of themselves, suggest
deliberate distortion of evidence by the witness or fraudulent
coaching by lawyers. In the case at bar, plaintiffs' counsel
believed that he had obtained damaging admissions from certain
witnesses that defendant or its agents had encouraged them to
change their testimony with respect to Mrs. Holton's condition in
the hours preceding her paralysis. Because we are remanding this
cause for new trial we make no express finding regarding whether
there may have existed a sufficient evidentiary basis to support
some of Cook's remarks indicating that defense counsel coached the
nursing staff witnesses to lie and change their testimony. Although
the appellate court in the instant case observed that there was
evidence sufficient to raise such an inference, the court further
stated that the evidence did not "conclusively" establish that
hospital employees were manipulated or told to testify falsely. We
hold only that the trial in the instant case was fatally tainted by
the improper comments of the trial judge to the jury, coupled with
closing remarks of an unduly prejudicial nature. The evidence of
the hospital's liability was not so overwhelming that we can
characterize the trial error as harmless under the circumstances.
Nor can we conclude that the jury's verdict was unlikely to have
been influenced by the trial court's comments upon the integrity of
defense counsel and the credibility of one of its witnesses,
especially in light of Cook's repeated charges of dishonesty and
attorney misconduct.

III. Jury Instructions
Defendant also challenges certain jury instructions. First,
defendant contends that plaintiffs' instruction no. 13, a non-IPI
instruction, was misleading. This instruction stated that defendant
"owed a duty, independent of any relationship between physician and
patient, to review and supervise the medical care administered to
the plaintiff." According to defendant, this instruction could be
understood as making the hospital liable not only for the acts and
omissions of the nursing staff and emergency room personnel, but
also for any negligence on the part of Dr. Doubek and the other
private physicians who treated Mrs. Holton. According to defendant,
because there was no evidence that the hospital knew or should have
known that plaintiffs' private treating physicians had misdiagnosed
Mrs. Holton's condition or rendered ineffective treatment,
defendant was not vicariously liable for the acts or omissions of
plaintiffs' physicians. Furthermore, defendant argues that the
potential jury confusion over the scope of the hospital's vicarious
liability was demonstrated by the jury's written inquiry to the
court, asking whether "a staff member, i.e., Dr. Doubek, [is] an
officer or employee of the hospital."
Plaintiffs concede that instruction no. 13 could have been
drafted more narrowly to prevent the jury from speculating whether
any physicians other than Dr. Jergens, the emergency room physician
on call, were included in the group of defendant's employees whose
acts or omissions were legally attributable to defendant. However,
plaintiffs assert that the instruction correctly states the
applicable law, that a hospital has an independent duty to its
patients to review and supervise treatment, and therefore any error
in the instruction was harmless, particularly in view of the
"overwhelming" evidence against defendant.
In light of our decision to reverse and remand this cause for
new trial we need only note that the instruction should not be
resubmitted in its presently drafted form. We believe that the
jury's question to the court reflects potential confusion over
whether private physicians are considered "staff members" for
purposes of holding the hospital legally responsible for acts and
omissions of the private doctors. Accordingly, on remand any
instruction attempting to state the hospital's duty to supervise
the medical care given its patients should be clearly and
accurately drafted to avoid jury speculation or confusion.
Defendant next argues that the statement of law in plaintiffs'
instruction no. 24 does not apply to the instant case and should
not have been given. Instruction no. 24 stated, "If a health care
provider is guilty of professional negligence which creates a
condition of the plaintiff's body, then the health care provider is
liable not only for plaintiff's damages resulting from that
condition, but also liable for any damages sustained by the
plaintiff arising from the efforts of subsequent health care
providers to treat the condition caused by the initial health care
provider." According to defendant, this instruction is applicable
only in cases where one tortfeasor "creates a condition" in the
plaintiff and subsequent medical providers improperly treat the
condition, making it worse. See Gertz v. Campbell,
(1973) (negligent driver sued for plaintiff's injuries sustained in
collision and also for subsequent aggravation of injuries from
medical malpractice). Defendant states that it did not create the
condition of osteomyelitis in Mrs. Holton and therefore instruction
no. 24 does not apply to any issue in the case.
Plaintiffs relied on the case of Daly v. Carmean, 210 Ill.
App. 3d 19 (1991), as authority for submitting this instruction. In
Daly, the appellate court held that an identically worded
instruction was appropriate in the case before it, which involved
a podiatrist who had negligently performed foot surgery upon
plaintiff and caused numerous complications needing subsequent
correction. Daly held that although the instruction properly stated
the doctor's liability for aggravating the plaintiff's initial
condition, the trial court did not abuse its discretion in refusing
the instruction. In the case at bar, plaintiffs do not explain in
what manner Daly assists their contention that instruction no. 24
should have been given. Instead, plaintiffs simply argue that the
instruction is a correct statement of the law "where subsequent
medical treatment may have caused damage to plaintiff."
We believe that the circumstances of the case at bar are
distinguishable from those of cases such as Daly and Gertz, where
an initial tortfeasor was legally responsible for subsequent
aggravation of the original injury caused by the initial
tortfeasor. The case at bar would be analogous to Gertz and Daly
if, for example, some individual had negligently injured Mrs.
Holton's spine, causing trauma, which resulted in the osteomyelitis
that was subsequently misdiagnosed and incorrectly treated. In such
an example, the original tortfeasor presumably could be found
liable for the damages caused not only by the initial injury to the
spine but also for the subsequent failure on the part of the health
care providers to detect and correct the condition. In the instant
case, however, the facts do not appear to support the giving of an
instruction involving the aggravation of an original tortfeasor's
injury by subsequent medical malpractice. Therefore, we hold that
instruction no. 24 should not be given upon retrial.
Defendant's remaining challenge to the jury instructions is
that the proximate cause instructions were one-sided, favoring
plaintiffs. According to defendant, the trial court erred in
rejecting one of the optional provisions of an IPI instruction,
which would have allowed the jury to enter verdict in favor of
defendant if the jury found that plaintiffs' injuries were solely
caused by the "conduct of some person other than defendant."
In instruction no. 15, the jury was given the long form
proximate cause instruction (IPI Civil 3d No. 15.01), which defines
proximate cause as "any cause which, in natural or probable
sequence, produced the injury complained of. It need not be 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." The jury was also given
IPI Civil 3d No. 12.05, submitted by defendant, which states that
if the jury finds the defendant's negligence was a proximate cause
of plaintiff's injury it is not a defense that "something else may
also have been a cause of the injury." The second paragraph of this
instruction instructs that the verdict should be for defendant if
the jury decides "that the sole proximate cause of injury to the
plaintiff was something other than the conduct of the defendant."
(Emphasis added.) IPI Civil 3d No. 12.05.
Defendant's specific challenge is to the omission from another
instruction, instruction no. 14, of a sole proximate cause
provision based on conduct of third parties. As given to the jury,
instruction no. 14 stated that "more than one person may be to
blame for causing an injury. If you decide that the defendant was
negligent and that its negligence was a proximate cause of injury
to the plaintiff, it is not a defense that some third person who is
not a party to the suit may also have been to blame." See IPI Civil
3d No. 12.04. According to defendant, the second paragraph of IPI
Civil 3d No. 12.04 should have been included, as follows: "However,
if you decide that the sole proximate cause of injury to the
plaintiff was the conduct of some person other than the defendant,
then your verdict should be for the defendant." Defendant argues
that the inclusion of this provision would have properly allowed
the jury to find that the conduct of Dr. Doubek, Dr. Murphy, or Dr.
Sprich in failing to properly diagnose and treat Mrs. Holton, was
the sole proximate cause of her injury.
We reject defendant's contention that the trial court abused
its discretion in declining to include the above-quoted provision
in instruction no. 14. A defendant is not automatically entitled to
a sole proximate cause instruction wherever there is evidence that
there may have been more than one, or concurrent, causes of an
injury or where more than one person may have been negligent.
Instead, a sole proximate cause instruction is not appropriate
unless there is evidence that the sole proximate cause (not "a"
proximate cause) of a plaintiff's injury is conduct of another
person or condition. See Ballweg v. City of Springfield, , 121 (1986); cf. Leonardi v. Loyola University, (1995). The usage notes following IPI Civil 3d No. 12.04 caution
that the sole proximate cause provision "should be used only where
there is evidence tending to show that the sole proximate cause of
the occurrence was the conduct of a third person."
In the case at bar, defendant did not present evidence or
argue that it was only the negligence of persons other than the
hospital employees which proximately caused plaintiffs' injury.
Instead, defendant attempted to establish that no medical
negligence had occurred at all. Defendant did not charge that
plaintiffs' treating physicians were negligent in their acts or
omissions. On the contrary, much of the defense relied on the
rationale that the treating physicians' diagnosis and treatment
decisions were proper in light of the circumstances in which the
decisions were made. For example, there was evidence that a
cancerous tumor appeared to be the most likely diagnosis based on
the information upon which the treating doctors based their
decisions. The jury, however, found in favor of plaintiffs, under
whose theory of the case defendant's negligence proximately caused
the treating physicians' misdiagnosis. Because neither plaintiffs
nor defendant asserted at trial that the treating physicians
themselves were negligent, we conclude that the trial court did not
err in denying defendant's request for a sole proximate cause
instruction based on the negligence of third parties.

IV
Finally, defendant claims that it was entitled to a setoff
against the damages award for expenses paid by plaintiffs'
insurance company. Plaintiffs counter that this court's resolution
of the issue would be premature because the issue of the insurer's
subrogation rights has not yet been adjudicated. We decline to
address this issue in light of our reversal of the cause for new
trial because there is no longer a judgment against which to set
off the expenses paid by the insurance company. The parties may
raise any issues regarding insurance reimbursement or subrogation
rights at the appropriate time in the trial court.
For the foregoing reasons, we agree with the denial of
defendant's motion for judgment notwithstanding the verdict and
hold that plaintiffs sustained their burden of proving proximate
cause pursuant to the Borowski standard. We reverse the judgment of
the appellate court and the judgment of the circuit court entered
upon jury verdicts in favor of plaintiffs and remand for a new
trial because defendant was denied a fair trial.

Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.

CHIEF JUSTICE HEIPLE, specially concurring:
The majority's opinion is a fine piece of scholarship,
copiously researched and admirably crafted; I even agree with some
of what is in it. I agree, for instance, with the majority's
conclusion that the wholly improper remarks by the plaintiffs'
attorney and the trial judge regarding the credibility of a defense
witness were unduly prejudicial to the defense case and, as a
consequence, the jury verdict for the plaintiffs must be reversed.
I must, however, take issue with the majority's novel analysis
which purports to reconcile the traditional concept of proximate
cause with the so-called "lost chance" doctrine. Accordingly, I
concur only in the judgment.
Under the traditional standards for submitting a medical
malpractice case to a jury, a plaintiff must produce evidence
showing that his injury was "probably" caused by the defendant's
negligence, meaning simply that it is "more probably true than not"
that the ultimate harm or condition resulted from such negligence.
Borowski v. Von Solbrig, , 424 (1975). In any
negligence case, the standard of proof on the causation issue is
whether, by a preponderance of the evidence, the negligent act or
omission is shown to have been a substantial factor in bringing
about the harm or without which the harm would not have occurred.
Thacker v. UNR Industries, Inc., , 354-55 (1992);
Smith v. Eli Lilly & Co., , 232 (1990). The effect
of these standards is to bar recovery where it is less probable
than not that the defendant's negligence caused the ultimate harm
complained of by the plaintiff.
The lost chance doctrine, as articulated by the majority,
loosens the traditional proximate cause standard by permitting the
causation issue to go to the jury where there is no evidence of a
reasonable probability that the defendant's negligence caused the
plaintiff's ultimate injury. Indeed, the majority opines that the
plaintiff need only show to a "reasonable certainty" that the
defendant's negligence caused an "increased risk of harm or lost
chance of recovery." What is particularly baffling about the
majority opinion is its steadfast refusal to acknowledge that it is
departing from the traditional proximate cause standard and its
insistence that the lost chance doctrine "comports" with our prior
decisions. This simply is not so. Under the framework set out by
the majority, the lost chance doctrine arises where the traditional
probability standard of causation is not met. Words have meaning,
and despite the majority's assurances otherwise, "reasonable
certainty" means something other than "reasonable probability."
The law does not, and should not, require proof of an absolute
certainty on causation or any other factual issue. While our
jurisprudence routinely settles for proof amounting to less than an
ontological certitude, how much less? The majority opinion lowers
the threshold below the traditional standard of "reasonable
probability" to a "reasonable certainty." I think this is unwise,
ill-advised and, on the facts of this case, wholly unnecessary.
Proof to a reasonable probability ensures that the possible
explanations for the cause of a plaintiff's injury are sufficiently
narrow to allow a jury to determine liability. To permit a case to
go to a jury on any less evidence invites a jury to impose
liability based on speculation and conjecture.
We have always required this level of certainty on the issue
of causation before permitting a jury to find a defendant negligent
and to award damages. See, e.g., Ney v. Yellow Cab Co., , 80-81 (1954); Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380 (1943). The majority opinion acknowledges this and quite
rightly resolves the proximate cause issue in this case under our
traditional standard. As the majority holds, and I agree, this case
properly went to the jury because there was evidence that the
nurses' failure to notify the doctors of Mrs. Holton's worsening
condition caused the doctors, at the very least, to prescribe an
inappropriate treatment. There was evidence that if the doctors had
been so informed, they could have arrested Mrs. Holton's
deterioration with medication and could have prevented her
condition from deteriorating as far as it did. Thus, Mrs. Holton
did establish that the defendant's negligence more probably than
not did cause her injury. It necessarily follows, then, that the
majority's discussion of the lost chance doctrine was unnecessary
to the disposition of the case.
So what then is to be made of the majority's gratuitous
discussion of the lost chance doctrine? It is axiomatic that
statements in a judicial opinion which are not essential to the
disposition of a case or logically necessary to the rationale for
the disposition are not authoritative. Geer v. Kadera, 173 Ill. 2d 398, 414 (1996) ("Dicta is not binding authority under the rule of
stare decisis"); Department of Public Works & Buildings v. Butler
Co., , 545 (1958). As such, a later court--even an
inferior court--is free to reject those parts of an opinion. A
court might issue general pronouncements when it decides a case,
but under stare decisis, those pronouncements are not binding
precedent unless essential to the disposition of the case. The
logic of the rule is quite simple: this court sits to decide real
cases and to prescribe rules of decision (see Ill. Const. 1970,
art. VI, 1, 4); we are not empowered to promulgate legislation.
Since a court's authority to "make law" is a product of a court's
duty to adjudicate disputes, it follows then that the authority of
a court in any given case extends only to what is needed to resolve
the particular dispute before it.
Where a rule of law has become established by a series of
decisions--like our traditional proximate cause standard--it should
be followed. The reasons are multitudinous: certainty,
predictability, stability, equity, efficiency and the avoidance of
arbitrary decisionmaking. This principle of stare decisis is as
basic as the rule of law itself, and is the mainstay against the
hubris of a single judge or the tyranny of a shifting majority.
This case in particular illustrates the wisdom of denying
precedential authority to unnecessary verbiage in judicial
opinions. The majority has given precious little thought to how the
lost chance doctrine will affect future cases. There is, for
example, no clear, principled reason why the lost chance doctrine
should not be applied in malpractice actions against other
professionals. Thus, if a disgruntled litigant loses a case that he
probably would not have won, but is able to prove that his lawyer
negligently reduced his chance of winning by some degree, no matter
how small, the litigant would be able to pursue a cause of action
for malpractice against his attorney under the lost chance
doctrine. See Comment, Loss of Chance in Legal Malpractice, 61
Wash. L. Rev. 1479 (1986). Only the client with no chance of
success would be foreclosed from some recovery under the lost
chance doctrine. There is nothing in the majority opinion or unique
to health care professionals that would limit the application of
the lost chance doctrine exclusively to medical malpractice cases.
The consequences of the majority opinion are far from clear.
I am troubled that the majority has sought to alter the traditional
proximate cause standard without considering the likely expansion
of the lost chance doctrine into other areas of law. I also fear
that the majority's opinion is just one more step along the road to
making medical professionals the insurers of their patients,
rendering health care providers liable without regard to whether
their negligence caused injury to the plaintiff. Our traditional
proximate cause standard provided a safeguard against this sort of
injustice, but the majority proposes to loosen the standard
considerably with the lost chance doctrine. The majority's opinion
may be an accurate prediction of how this court might someday rule
on the lost chance doctrine, but its discussion here amounts to
dicta. Therefore, I consider it still to be an open question
whether the common law of Illinois recognizes the lost chance
doctrine.

JUSTICE NICKELS, dissenting:
I agree with the majority's excellent analysis and conclusion
finding that the "loss of chance" doctrine does not lessen a
plaintiff's duty to prove proximate cause in a medical malpractice
action. However, I strongly disagree with the majority's conclusion
that the conduct of the trial court and the plaintiffs' attorney
constitutes reversible error. Therefore, I respectfully dissent.

Initially, I note that the majority is simply incorrect in
asserting that Dr. Jergens' party status in the companion lawsuit
is a collateral matter. The purpose of cross-examination is to test
the credibility of a witness. People v. Collins, ,
269 (1985). A matter is considered collateral only if it is
irrelevant for any purpose other than to simply contradict the in-
court testimony of the witness. M. Graham, Cleary & Graham's
Handbook of Illinois Evidence 607.2, at 337 (5th ed. 1990). For
example, what a witness had for lunch, even if contradicted by
other evidence, would not be a proper basis for extrinsic evidence
in a case involving whether a defendant ran a red light. However,
a witness' bias is not a collateral matter and a party may prove
bias by extrinsic evidence. See M. Graham, Cleary & Graham's
Handbook of Illinois Evidence 607.2, at 338 (5th ed. 1990).
In the instant case, the plaintiffs' attorney attempted to
elicit the fact that Dr. Jergens was named as a defendant in a
separate lawsuit that plaintiffs brought arising from the same set
of facts. Plaintiffs' attorney was attempting to show that Dr.
Jergens' testimony should not be viewed as impartial, because
plaintiff was also attempting to impose liability on Dr. Jergens in
the separate lawsuit. "Extrinsic evidence offered to establish bias
*** [by] the witness may be admitted following denial by the
witness of a fact giving rise to such an inference when put to the
witness on cross-examination." M. Graham, Cleary & Graham's
Handbook of Illinois Evidence 607.2, at 340 (5th ed. 1990).
Even more confusing than the majority's misapplication of the
collateral matter rule is the suggestion that the conduct of the
plaintiffs' attorney that occurred outside the presence of the jury
requires reversal of the jury verdict. The "mini trial" described
in the majority opinion in which plaintiffs' attorney made many of
the heated accusations of perjury and the quoted remarks
questioning the integrity of defense counsel occurred outside the
presence of the jury. As this occurred outside the presence of the
jury, I fail to understand how any of this has any relevance to
whether the defendant hospital received a fair trial.
The majority finds that the trial judge abused his discretion
in making the statement to the jury concerning the existence of the
pending lawsuit against Dr. Jergens. In that statement, the judge
told the jurors that in considering Dr. Jergens' credibility, they
may consider that he was aware of a lawsuit against him and that
the defendant's attorneys had done "certain things that encouraged
the doctor to believe his answer was accurate." The majority finds
"no sound basis for these charges."
I question the overly charitable view the majority gives the
defense in this matter as well as the import of the instruction on
which the majority finds error. After denying his awareness that he
was a "defendant" in the companion lawsuit, Dr. Jergens ran from
the courtroom in an effort to evade service of process. Plaintiffs'
attorney believed this conduct showed an awareness of the suit, and
a hearing was held outside the presence of the jury. At the
hearing, the court attempted to determine if the witness had been
coached to give a misleading answer. The defense attorney initially
denied ever talking about the lawsuit with Dr. Jergens:
"MR. SANDBERG [defense attorney]: Since the time the
lawsuit was filed, I have never talked to Dr. Jergens
about the lawsuit and there is no evidence otherwise--."
The majority finds that defendant's attorney merely "misspoke"
in denying that he had ever discussed the lawsuit with Dr. Jergens.
However, the defendant's attorney did not completely "correct
himself" until Dr. Jergens was returned to the courtroom to
directly contradict this statement. After Dr. Jergens was located,
he testified that he had discussed the lawsuit with both defense
attorneys at a meeting at the hospital and immediately before
testifying in court. It was based on this discussion, as well as
discussion with other attorneys, that Dr. Jergens formed his belief
that he was not actually a party until served.
"MR. COOK [plaintiffs' attorney]: Who gave you that
understanding? Did you talk about that with Ms. Hines or
Mr. Sandberg?
DR. JERGENS: Among others.
MR. COOK: Among others. When's the last time that
you talked with them about that fact before you
testified? Yesterday?
DR. JERGENS: We talked about a suit yesterday. But
whether or not the last time they talked to me about
being summoned?
***
MR. COOK: Doctor, again, you were told yesterday
that you're not a defendant until you're served with
summons by one or both of these lawyers, is that right?
DR. JERGENS: That's my recollection.
MR. COOK: That's yesterday. Where were you when you
had that discussion with one or both of those lawyers?
DR. JERGENS: I was at Memorial Hospital.
MR. COOK: Who else was present?
DR. JERGENS: No one.
***
MR. SANDBERG: Did I tell you because you hadn't been
served you're not a defendant in the companion case?
DR. JERGENS: That was my understanding from our
conversation and from the conversations I had with other
lawyers."
Upon further questioning by defendant's attorney, Dr. Jergens
clarified his response by stating that the specific question
regarding his party status was not discussed with the defense
attorneys prior to his testimony.
Based on this hearing, the trial court determined that defense
counsel "had done certain things that encouraged the doctor to
believe that his answer was accurate." This characterization is
supported by Dr. Jergens' testimony at the hearing and is a neutral
explanation of why the doctor testified that he believed he was not
a party. This explanation directly impugns neither the integrity of
defense counsel nor Dr. Jergens. In addition, the court stated that
the jury may consider the fact that Dr. Jergens is a defendant in
a lawsuit filed by the plaintiffs in determining his credibility.
Thus, the trial court's instruction placed the evidence of Dr.
Jergens' bias in a proper context for the jury and explained the
error of his testimony in a neutral fashion. I would not find that
the trial court abused its discretion in this regard.
The majority also finds error in certain comments plaintiffs'
attorney made during closing arguments. Specifically, the majority
complains that plaintiffs' attorney suggested that nurses were
encouraged to "modify their testimony" and objects to the
comparison of the defense attorneys to nefarious attorneys who
violated ethical rules. I note that attorneys are granted wide
latitude in closing arguments. Furthermore, even the majority is
forced to acknowledge that, in light of the evidence presented,
there is support for these charges. More importantly, defense
counsel did not object to plaintiffs' closing arguments. I do not
agree that these comments, which were grounded in the evidence
presented and not objected to at trial, constitute a sound basis
for a new trial. For these reasons, I respectfully dissent from the
majority's opinion.

JUSTICE HARRISON joins in this dissent.

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