June 16, 2021

The Appellate Court of Illinois Fourth District (“Illinois Appellate Court”) upheld a $14 million medical malpractice jury verdict in its opinion filed on May 28, 2021.

The Underlying Facts

On September 21, 2012, plaintiff, Mark Allen, felt a “pop” in his neck and began to experience neck pain. That same day, Allen sought medical care from defendant, Sarah Bush Lincoln Health Center, at defendant’s emergency department. Allen was given painkillers and discharged. The following day, September 22, 2012, Allen again went to defendant’s emergency room and, again, was given painkillers and discharged.

On September 26, 2012, Allen’s condition worsened. He went to defendant’s emergency room where he was seen by Dr. Derek Stout, who ordered a computerized tomography (CT) scan for Allen. That scan was read by Dr. Lynn Dale, a radiologist. Stout believed the problem to be a viral infection and discharged defendant.

On September 27, Allen collapsed and was taken to defendant’s emergency room via ambulance before being transferred to Carle Hospital (Carle) early the following morning. At Carle, a neurologist examined Allen and ordered a magnetic resonance imaging (MRI) scan, which revealed that Allen had a spinal epidural abscess. Allen had spinal surgery to drain the abscess but still suffered a spinal cord injury as a result of the abscess.

In September 2013, Allen sued defendant for negligence, alleging that defendant and defendant’s agents had a duty to “possess and apply the knowledge, and use the skill and care ordinarily used by reasonably careful professionals in their respective fields.” Specifically, the Illinois medical malpractice complaint alleged: (1) on September 21 and 22, 2012, Allen presented to defendant’s emergency department complaining of pain in his shoulder and neck but was discharged on both days; (2) on September 26, 2012, at around 10:25 a.m., Allen presented again to defendant’s emergency department where he was seen by Stout; (3) Stout was defendant’s agent; (4) Allen’s blood was tested at around 12:35 p.m. and showed he had an abnormally high white blood cell count; (5) during the September 26 visit, Allen complained of pain and weakness throughout his body, including from his neck down to his waist, as well as an intermittent fever; (6) around 2:36 p.m., defendant discharged Allen from the hospital; (7) Allen continued to deteriorate after leaving the hospital; and (8) defendant and its agents acted negligently in several ways that resulted in defendant’s failing to diagnose and treat Allen’s spinal epidural abscess.

In December 2019, the trial court conducted a jury trial on Allen’s claim. The jury returned a $14 million verdict in favor of Allen.

The defendant appealed, arguing that (1) the trial court erred by instructing the jury that defendant’s sole proximate cause defense could not be based on the act of a nonparty apparent agent, (2) the trial court erred by allowing an internist and an orthopedic surgeon to testify regarding the standard of care for an emergency room physician, and (3) defendant was deprived of a fair trial because of Allen’s counsel’s pervasive misconduct.

The defendant disagreed with instruction No. 18’s use of the word “may” in informing the jury that if it found that Dale was not defendant’s apparent agent, it “may” consider the sole proximate cause defense.

Illinois Appellate Court Opinion

The Illinois Appellate Court stated that the defendant’s contention is about the wording of instruction No. 18, not whether the trial court should have given the instruction at all. Defendant could have (1) submitted an instruction that used a word other than “may” or (2) offered other modifications to proposed instruction No. 18. “Because defendant chose to not do so, we conclude that (1) defendant has forfeited this argument and (2) any prejudice defendant claims to have suffered from this wording is entirely speculative.”

Two-Issue Rule

The two-issue rule, codified in section 2-1201(d) of the Code of Civil Procedure, states, in pertinent part: “If several grounds of recovery are pleaded in support of the same claim, whether in the same or different counts, an entire verdict rendered for that claim shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict … ”

The two-issue rule requires that, in such circumstances, a party must submit special interrogatories to determine whether any error in an alleged erroneous instruction could have affected the verdict.  A special interrogatory is in proper form when it consists of a single, direct question that, standing on its own, is dispositive of an issue in the case such that it would, independently, control the verdict with respect thereto.

The Illinois Appellate Court stated, “Essentially, defendant’s contentions amount to nothing more than that the jury erred by rejecting defendant’s sole proximate cause defense. Because defendant failed to request a special interrogatory that would have revealed whether the jury relied upon instruction No. 18 in reaching its verdict, the two-issue rule precludes reversal based upon defendant’s claim that instruction No. 18 was erroneously given to the jury. We similarly disagree with defendant’s contention that the two-issue rule does not preclude review because we conclude that defendant could have submitted a special interrogatory in proper form to test the basis of the jury’s verdict.”

The Illinois Appellate Court held: “We conclude that the two-issue rule applies in this case and, because defendant failed to request a special interrogatory be submitted to the jury, defendant has forfeited its claim that instruction No. 18 was erroneously given to the jury.”

Source Allen v. Sarah Bush Lincoln Health Center, 2021 IL App (4th) 200360.

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