Plaintiff’s Illinois medical malpractice complaint alleged that he was a type 1 diabetic and had previously received medical care and treatment from defendants related to his diabetes. On January 12, 2017, plaintiff went to defendant Quincy Physicians & Surgeons Clinic, S.C., doing business as Quincy Medical Group (“QMC”), and was examined by defendant Dr. Love. On that date, plaintiff complained that he had difficulty walking on his left foot, explaining that the pain began a week prior when he injured his left ankle and foot. Dr. Love diagnosed plaintiff with left foot edema and potential cellulitis. Plaintiff returned to QMC on January 16, 2017, complaining of increased redness and swelling into his ankles and lower extremities with increased pain in and along the bottom of his foot. Dr. Love again diagnosed cellulitis in the foot and prescribed an antibiotic. Plaintiff telephoned defendants on January 23 and 25, 2017, stating that the swelling in his foot had worsened, the bottom of his foot was a deeper red, and the pain was excruciating. Plaintiff was prescribed additional pain medication. Plaintiff saw Dr. Love again on January 26, 2017, and reported that it was painful to walk and that he was unable to put pressure on the upper part of his foot. Dr. Love repeated his diagnosis of cellulitis and ordered five days of antibiotics for plaintiff. Dr. Love also referred plaintiff to a podiatrist for a follow up.
Plaintiff went to a podiatrist on January 30, 2017, and described his ongoing symptoms. The podiatrist ordered X-rays of the foot. Those X-rays showed a complete dislocated fracture of the first metatarsal and minimally displaced complete transverse fractures of the base of the second and third metatarsals. Plaintiff then was referred to an orthopedic surgeon. The orthopedic surgeon stated that plaintiff’s injury was exacerbated when plaintiff continued working and walking on his foot. Plaintiff had surgery on his foot in March 2017. Plaintiff later developed an infection and had a second surgery in October 2017. Plaintiff ultimately had his left leg amputated just below the knee.
Plaintiff’s complaint alleged that Dr. Love had misdiagnosed a fracture in plaintiff’s foot as an infection. As a result of the misdiagnosis, plaintiff continued walking on his foot, causing a cascade of fractures that ultimately led to an
amputation below his knee.
The Illinois medical malpractice jury had difficulty deciding the case. Its last note to the judge, from an unidentified juror, stated:
“For the record, I will sign the verdict for the defendant Dr. Love. I am firm in my support for the plaintiff Mr. Shilling [sic].
I am only signing to end this deliberation and put an end to this. After many hours of discussion and debate, we cannot come to a unanimous decision. Therefore, its [sic] my position to sign only to end this.
I 100% believe Dr. Love was negligent in providing the appropriate care to his patient. As a result, Mr. Schilling [sic] overall care was impacted because of Dr. Loves decision.
Once again. I am only agreeing to sign to end this.”
Plaintiff’s counsel argued that the juror’s note indicated the jury was deadlocked and moved for a mistrial. The trial
court then brought the jurors back into the courtroom and asked the foreperson if he felt the jury was deadlocked. The foreperson answered that, to his “understanding,” the jury was deadlocked. The trial court then gave the jury IPI Civil No. 1.05, both orally and in writing. At this point, plaintiff’s counsel again moved for a mistrial based upon the “Surrender Note.” Plaintiff’s counsel argued that the Prim instruction was untimely and should have been given the previous night when the jury first declared that it was deadlocked. The trial court denied the motion for a mistrial.
The jury subsequently informed the trial court that it had reached a verdict. Plaintiff’s counsel moved the court to poll the jury when the jurors returned to the courtroom, before the verdict was announced. The trial court responded that it would poll the jurors but would do so after the verdict was announced. The jurors were then brought back into the courtroom, and the verdict in favor of defendants was read. Each juror was then asked, “was this then and is this now
your verdict?” All jurors answered “yes” to the polling question, at which point the jury was discharged.
Plaintiff’s counsel then renewed his request for a mistrial. Plaintiff’s counsel noted on the record that when juror 34 was polled, the juror hesitated and gave a loud sigh but answered “yes” when asked if the verdict was then and is now his verdict. Plaintiff’s counsel suggested that juror 34 may have been the juror who wrote the Surrender Note and argued that there should have been further polling of that juror given his response during the individual polling. The trial court again denied plaintiff’s motion for mistrial.
The Supreme Court of the State of Illinois stated in its January 23, 2026 Opinion: “This court has recognized several nonexhaustive factors in reviewing whether a trial court acted within its discretion in declaring a mistrial on the basis of a jury deadlock. Id. ¶ 38. These factors include “(1) statements from the jury that it cannot agree, (2) the length of the deliberations, (3) the length of the trial, (4) the complexity of the issues, (5) the jury’s communications to the judge, and (6) the potentially prejudicial impact of continued forced deliberations.””
“When the jury first notified the trial court that it was deadlocked, the trial court provided no guidance and simply directed the jurors to continue deliberating. The conceivably coercive effect of the trial court’s silence is seen in
the Surrender Note, where the author stated that he or she would vote with the majority solely to end deliberations. After the trial court gave the Prim instruction, the jury continued to deliberate, reaching a verdict approximately 50 minutes later. During polling, the jury unanimously affirmed that the verdict “was then and is now” their verdict. The Prim instruction thus did exactly what it was intended to do by providing guidance to the deadlocked jury. The Prim instruction is not inherently coercive. The trial court therefore did not abuse its discretion in denying plaintiff’s motion for a mistrial and instead giving the jury a Prim instruction following receipt of the Surrender Note.”
“The author of the Surrender Note had the opportunity to disclose any coercion, mistake or dissent from the verdict during the polling. The jurors, however, all answered “yes” when asked whether the verdict was their verdict.
Consequently, there was no reason for the trial court to conduct further questioning … It is clear from the preceding cases that a juror must express dissent to a verdict or provide an ambiguous response to require the court to continue polling the juror. Juror 34’s long pause and loud sigh prior to answering “yes” to the jury polling in this case did not express dissent nor was it ambiguous. Juror 34’s response was not comparable to the Kellogg juror asking if she could change her vote. Juror 34 did not express disagreement with the verdict returned or otherwise indicate that he wanted to change his vote. Plaintiff’s jury had an opportunity to express disagreement during polling in this case. None of the jurors did so. The trial court thus did not abuse its discretion in denying plaintiff’s motion for further polling beyond asking the jurors “was this then and is this now your verdict?””
Source Schilling v. Quincy Physicians & Surgeons Clinic, S.C., d/b/a Quincy Medical Group, 2026 IL 131411.
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