Dillon v. Evanston Hospital
771 N.E.2d 357, 199 Ill. 2d 483, 264 Ill. Dec. 653 (2002)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A plaintiff may recover damages for an increased risk of future injury proximately caused by a defendant's negligence, even if the future injury is not reasonably certain to occur, provided the compensation reflects the probability of the harm's occurrence.
Facts:
- On April 20, 1989, Dr. Stephen Sener surgically inserted a 16-centimeter catheter into Diane Dillon's chest for chemotherapy.
- On July 13, 1990, upon completion of chemotherapy, Dr. Sener attempted to remove the catheter.
- Unbeknownst to Dillon or Dr. Sener, a nine-centimeter fragment of the catheter broke off and remained in Dillon's body.
- In December 1991, a routine chest X-ray revealed the fragment had migrated to Dillon's heart, with its tip embedded in the heart wall.
- Medical experts, including Dr. Sener, advised Dillon that the risks associated with a surgical attempt to remove the fragment outweighed the risks of leaving it in place.
- The presence of the fragment created a continuing risk of future injuries, including infection, heart perforation, arrhythmia, and embolization.
- Expert testimony quantified the risk of these future harms as being less than reasonably certain, with the highest estimated risk of infection being 20% and other risks being smaller.
Procedural Posture:
- Diane Dillon filed a medical malpractice action in the circuit court of Cook County, a trial court of first instance.
- Following a trial, the jury returned a verdict in favor of Dillon and against Dr. Sener and Evanston Hospital.
- The jury awarded Dillon $1.5 million for past pain and suffering, $1.5 million for future pain and suffering, and $500,000 for the increased risk of future injuries.
- Dr. Sener and Evanston Hospital, as appellants, appealed the judgment to the Illinois Appellate Court.
- The appellate court affirmed the judgment of the circuit court.
- The Illinois Supreme Court granted Dr. Sener and Evanston Hospital's petition for leave to appeal.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
May a plaintiff recover damages for an increased risk of future injury proximately caused by a defendant's negligence, where the future injury is not reasonably certain to occur?
Opinions:
Majority - Justice Freeman
Yes. A plaintiff can recover for an increased risk of future injury as a present element of damages, even if that injury is not reasonably certain to occur. The court departs from its prior precedent, which required a greater than 50% probability for recovery of future damages. It adopts the reasoning that the increased risk itself is a present, compensable injury, and fairness dictates that a tortfeasor should be held accountable for creating such a risk. This approach aligns with the single recovery principle, which requires all past and future damages to be litigated in one action. However, the court found the jury instruction on this element of damages was inadequate because it failed to guide the jury to calculate the award by considering the probability of the future harm occurring. Therefore, the case is remanded for a new trial solely on the issue of damages for the increased risk of future injury, with instructions that the award must be proportional to the likelihood of the harm.
Concurring-in-part-and-dissenting-in-part - Chief Justice Harrison
Yes. The author agrees with the majority that damages for an increased risk of future injury are a compensable element of damages. However, he dissents from the decision to remand for a new trial on damages. He argues the jury instruction was adequate because the term 'risk' inherently incorporates the concept of probability. Furthermore, the defendants waived any objection to the specific wording of the instruction by failing to offer an alternative at trial. Therefore, the jury's verdict should have been affirmed in its entirety.
Analysis:
This decision marks a significant shift in Illinois tort law, abandoning the traditional 'all-or-nothing' rule for future damages which required a greater than 50% probability. By recognizing the increased risk of harm as a present, compensable injury, the court aligns Illinois with a modern trend that allows for more nuanced damages awards. This precedent will likely increase the complexity of damages calculations in personal injury and medical malpractice cases, requiring expert testimony to focus on quantifying the percentage of risk. Future cases will require trial courts to provide careful jury instructions on how to value a risk proportionally to its probability, as established by this case.
