Illinois personal injury trial lawyers should take note of a recent Illinois First District appellate court case, Tabe v. Ausman, 388 Ill. App. 3d 398 (1st Dist. 2009), dealing with the relationship between the “sole proximate cause” instruction, the “two-issue rule,” and the requirement for submitting Special Interrogatories to the jury. This case is sure to impact the practice of personal injury law in Chicago and throughout Illinois.
In Tabe, the plaintiff brought a medical malpractice action against three doctors at the University of Illinois Hospital in Chicago who performed a laminectomy procedure on the plaintiff: a neurosurgeon, the chief hospital resident a the time of the surgery, and a second-year resident at the time of the surgery. The laminectomy, which involved placing a fat graft into the plaintiff’s spinal area to alleviate chronic back pain, was unsuccessful, and left the plaintiff with motor and sensory deficits.
The plaintiff’s main allegation was that the defendant physicians negligently failed to perform a timely decompression procedure to preserve the plaintiff’s spinal nerves and avoid other undesired results. The plaintiff’s expert neurologist and neuroradiologist claimed that the MRI films of the plaintiff clearly showed signs of decompression — despite the fact that the MRI report, authored by a non-party neuroradiologist, noted that the fat graft used in the surgery “encroached” on the spinal canal, but did not indicated that the graft was “compressing” on the plaintiff’s spinal nerves. Then plaintiff’s experts further opined that the defendants should have immediately performed decompression surgery to remove the pressure and avoid permanent nerve damage.
The defense argued two different grounds to support a finding of no liability: (1) the fat graft was not compression g the plaintiff’s nerves and, therefore, they were not negligent in failing to perform a decompression surgery; (2) if the MRI films showed compression, as the plaintiff’s experts testified, then the non-party neuroradiologist’s omission of that fact in the MRI report was the “sole proximate cause” of the plaintiff’s injury.
At the close of the evidence, the defendants convinced the trial court to give the long form of Illinois Pattern Jury Instruction (IPI) No. 12.04 (sole proximate cause instruction) over the plaintiff’s objection. The instruction informed the jury that “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.” IPI Civil (2006) No. 12.04. After a nine-day jury trial, the jury returned a general verdict in favor of the defendants after less than one day of deliberation.
However, the trial court granted the plaintiff’s request for a new trial on the basis that there was no evidence to support the unnamed neuroradiologist as the sole proximate cause of the plaintiff’s injury. The court found “no competent evidence that anyone was misled or that the defendants were relying on the neuroradiologist’s” MRI report. Instead, the court found that the defendant doctors relied on their own interpretation of the MRI films and determined their own treatment plan for the plaintiff without input from the neuroradiologist. The court found its error misled the jury and resulted in prejudice to the plaintiff.
The Illinois appellate court reversed, and reinstated the jury’s verdict of no liability.
The Two-Issue Rule and the need to Submit Special Interrogatories to Jury
The appellate court held that the jury’s general verdict in favor of the defendants was beyond review based on the “two-issue rule” in the absence of special interrogatories, which would have disclosed the basis for the jury’s verdict.
The two-issue rule, as described in Strino v. Premier Healthcare Associates, 365 Ill. App. 3d 895 (2006), provides that if the jury’s defense verdict can be explained by either of two factual determinations, one of which being that the defendants did not deviate from the standard of care, special interrogatories must be submitted to the jury to determine whether the sole proximate cause instruction made any difference. In other words, if the jury concluded that the MRI films did not disclose a nerve compression and, therefore, the defendant doctors were not “negligent” in failing to perform a decompression procedure, then instructing on “sole proximate cause” did not matter.
However, because neither party submitted “special interrogatories” to the jury — answering whether or not the plaintiff proved that the defendants’ deviated from the standard of care (i.e. were negligent) — the appellate court could not determine from the general verdict whether the sole proximate cause instruction made any difference.
This holding puts Illinois personal injury plaintiffs and their lawyers in a precarious position. Experienced personal injury lawyers are often hesitant to submit special interrogatories to juries, for fear of “inconsistent verdicts” — i.e., a finding of liability and award of damages, but a contrary answer to a special interrogatory finding the defendant not to have deviated from the standard of care. Plaintiff’s lawyers must now balance the risks of exposing one’s client to an inconsistent verdict at trial with the need to preserve the record for appeal.
Sole Proximate Cause Instruction — No Showing of Prejudice
The appellate court also found that even if the sole proximate cause instruction was given in error, the trial court should not have awarded a new trial because the plaintiff was “not prejudiced” by the instruction. First, the appellate court found there was adequate basis for the instruction because there was “some evidence” that the defendants were either misled by, or relied upon, the non-party neuroradiologist’s conclusion that there was no nerve damage. See Leonardi v. Loyola Univ. of Chicago, 168 Ill. 2d 83 (1995).
More importantly to the appellate court, however, was the fact that the plaintiff could not show it was “prejudiced” by instruction the jury on the sole proximate cause defense, and “absent a showing of serious prejudice to the plaintiff, it is an abuse of discretion to grant a new trial based on an erroneous jury instruction.” The plaintiff acknowledged that there was no precedent that holds the giving of the sole proximate cause instruction results in prejudice to a plaintiff.
Therefore, the court held that although it may have been error to put before the jury the possibility that the conduct of some third-person was the sole proximate cause of the plaintiff’s injuries, it found “no prejudice” to the plaintiff. Instead, the court found the instruction merely focused the jury’s attention on the plaintiff’s duty to prove that the defendants’ conduct was a proximate cause of the injuries he claimed.