Following a three-week trial, an Illinois medical malpractice jury found Advocate Health and Hospitals Corporation
(Advocate) liable for the neurodevelopmental disabilities of a child delivered at the hospital in 2014. The plaintiffs
argued that the child suffered brain damage (hypoxic ischemic encephalopathy (HIE)) from oxygen deprivation during the 45-minute period prior to delivery and that the hospital’s staff was negligent for failing to perform an emergency Cesarean section sooner. The hospital argued that the child’s injuries resulted solely from fetal growth restriction (FGR) and the outcome would have been the same even if he had been delivered sooner.
The parties tendered differing jury instructions regarding proximate cause. The plaintiffs tendered IPI Civil No. 15.01. In relevant part, the instruction concluded with the sentence, “However, if you decide that the defendants’ conduct was not a proximate cause of the plaintiffs’ injury, then your verdict should be for the defendants.” Advocate tendered a modified version of IPI Civil No. 15.01 with the final sentence stating, “However, if you decide that the sole proximate cause of the injury to Plaintiffs was something else or the conduct of someone else other than Defendants, then your verdict should be for the Defendants.”
The court refused Advocate’s requested instruction, reasoning that language regarding “sole proximate cause” was purposefully omitted when the Committee on Illinois Pattern Jury Instructions revised the instructions regarding proximate cause in 2021. Instead, the court gave the revised pattern instruction, which directed the jury to find for the hospital only if they determined that the hospital’s conduct was not a cause of the injury. The jury returned a $20 million verdict in favor of the plaintiffs.
Advocate appealed, arguing that the trial court erred by refusing its requested instruction. The Appellate Court of Illinois First District stated in its May 7, 2025 Opinion that a defendant may defeat a plaintiff’s claim of negligence by establishing proximate cause in the act of solely another not named in the suit, which is known as the “ ‘empty chair’ or sole proximate cause defense (“the defense that a third party or other causative factor is solely to blame for the plaintiff’s injury is a distinct and additional way to argue that the defendant’s conduct was not the proximate cause of the plaintiff’s injury. That the defendant’s conduct did not cause the plaintiff’s injury rebuts an element of negligence.”).
The Illinois appellate court held in the case it was deciding: “a party is entitled to have the jury instructed on any theory supported by the evidence … Here, Advocate presented evidence by way of expert testimony that AJ’s injuries were caused solely by FGR. Therefore, Advocate was entitled to an instruction on sole proximate cause. Revised IPI Civil No. 15.01 did not suffice, as it does not state the sole proximate cause defense. Thus, the court erred by refusing to give the modified instruction.”
Nonetheless, the Illinois appellate court stated: “Erroneous or incomplete instructions, however, do not necessarily require reversal of a judgment … We will only reverse if the error resulted in “ ‘serious prejudice’ ” to the appellant’s right to a fair trial … Serious prejudice occurs when the trial court’s faulty instructions clearly misled the jury.”
“Although the jury was not given an explicit instruction on sole proximate cause, it was instructed that the plaintiffs’ had the burden to prove Advocate’s acts proximately caused AJ’s injury. Furthermore, it instructed that if the jury decided that Advocate’s conduct was not a proximate cause of the injury, they should return a verdict for Advocate. These were accurate statements of law. Moreover, they are logically consistent with and complementary to the sole proximate cause defense. That is, if a defendant’s conduct was not a proximate cause of the plaintiff’s injury, it necessarily follows that the plaintiff’s injury was only attributable to other causes and vice versa. These concepts are inextricably connected. We presume the jury understood and followed the court’s instructions … In addition, if Advocate was concerned that the jury would be confused by the instructions, it could have requested special interrogatories to make the jury specify what it found to be the cause of AJ’s injury. For example, the jury could have been asked, “Did AJ’s developmental disabilities result only from FGR?” and/or “Would AJ have the same developmental disabilities if he had been delivered an hour sooner?”.”
The Illinois appellate court held: “We are not persuaded that Advocate did not receive a fair trial. Accordingly, we find that Advocate was not seriously prejudiced by the trial court’s refusal to give the modified instruction it tendered.”
The Illinois appellate court further held that while “a high-low agreement is a settlement agreement, it is not the kind of settlement contemplated in the prejudgment interest statute.”
Source Johnson v. Advocate Health & Hospitals Corp., 2025 IL App (1st) 230087.
If you or a loved one have suffered serious harm as a result of a birth injury in Illinois or in another U.S. state, you should promptly find an Illinois medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your birth injury medical malpractice claim for you and represent you or your loved one in a birth injury medical malpractice case, if appropriate.
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