Bailey v. Mercy Hospital & Medical Center
166 N.E.3d 301
Ill. App. Ct.2021Background
- Jill Milton-Hampton presented to Mercy Hospital ED March 16–17, 2012 with GI symptoms, tachycardia and low hemoglobin; she was treated, discharged once, returned, observed, then deteriorated and died March 18, 2012.
- Plaintiff (Bailey, estate representative) sued the treating ED physicians, nurses, Mercy, and EMP alleging failure to diagnose/treat sepsis/toxic shock from a retained tampon; defendants maintained fulminant viral myocarditis caused death.
- Trial featured sharply conflicting expert testimony: plaintiff’s experts said CT "heterogeneous density" was a tampon, Woertz’s postmortem blood culture showed MRSA, and earlier antibiotic treatment would likely have averted death; defendants’ experts called the MRSA a contaminant, said autopsy and labs supported viral myocarditis, and that care met the standard.
- At trial the court refused: IPI Civil No. 105.07.01 (informed consent), IPI Civil No. 5.01 (missing-evidence), and plaintiff’s nonpattern loss-of-chance instruction; the court admitted Dr. Reingold (to testify about toxic shock) and allowed a demonstrative exhibit used by defendants; jury returned verdict for defendants.
- On appeal the First District affirmed in part and reversed in part: it held the court erred by refusing the informed-consent IPI instruction and the nonpattern loss-of-chance instruction and remanded for new trial as to the physician/EMP defendants; it affirmed the verdict for Mercy Hospital and nurse Anderson and rejected error as to the missing-evidence instruction and the two evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court refused IPI Civil No. 105.07.01 (informed consent) | Bailey argued the one-line reference in the issues instruction failed to explain elements of informed consent (duty to disclose, breach, causation, injury) and deprived her of instruction on her theory against Dr. Jones | Defendants argued the IPI instruction was inapplicable (they characterized it as tied to consent for procedures) and a one-line issue reference was adequate | Court: Reversed — refusal was error; IPI 105.07.01 should have been given because plaintiff presented evidence on the four elements and the instruction accurately states the law |
| Trial court refused IPI Civil No. 5.01 (missing evidence — blood culture) | Bailey argued blood-culture results were under Mercy’s control, missing without explanation, and jury should be permitted to infer adverse results | Defendants showed the blood-culture order was discontinued during resuscitation and results never existed; depositions were available; thus Mercy had a reasonable excuse | Court: Affirmed — no abuse of discretion; instruction requires proof that evidence existed and was withheld, not merely an order having been entered |
| Trial court refused nonpattern "loss of chance" instruction | Bailey said she presented sufficient evidence that negligent delay lessened the effectiveness of treatment (experts opined each hour delay increased mortality risk) and the jury should be instructed on loss of chance proximate-cause theory | Defendants relied on precedent holding long-form proximate-cause IPI 15.01 sufficed | Court: Reversed — refusal was error; plaintiff presented enough to support loss-of-chance and IPI 15.01 does not fairly, distinctly instruct the jury on the doctrine, so a new trial as to the physician/EMP defendants is required |
| Admission of Dr. Reingold and demonstrative exhibit | Bailey contended Reingold was unqualified to opine on clinical/postmortem findings and the viral-transmission demonstrative was misleading and irrelevant | Defendants argued Reingold’s CDC-era toxic-shock experience qualified him and demonstrative evidence was a permissible aid to Schaer’s viral-myocarditis theory; plaintiff failed to contemporaneously object at trial | Court: Affirmed — plaintiff forfeited contemporaneous objections; even on the merits the court did not abuse discretion admitting Reingold or the demonstrative exhibit |
Key Cases Cited
- Dillon v. Evanston Hosp., 199 Ill. 2d 483 (Ill. 2002) (jury instructions must fairly and distinctly state law and parties are entitled to instructions on issues presented)
- Holton v. Memorial Hosp., 176 Ill. 2d 95 (Ill. 1997) (plaintiff may present loss-of-chance evidence that malpractice lessened chance of recovery)
- Simmons v. Garces, 198 Ill. 2d 541 (Ill. 2002) (elements and limits for missing-evidence instruction)
- Nassar v. County of Cook, 333 Ill. App. 3d 289 (Ill. App. 2002) (discussing IPI Civil No. 5.01 and trial court discretion)
- Sinclair v. Berlin, 325 Ill. App. 3d 458 (Ill. App. 2001) (loss-of-chance as proximate-cause theory in medical malpractice)
- Cetera v. DiFilippo, 404 Ill. App. 3d 20 (Ill. App. 2010) (prior panel held IPI 15.01 could suffice for loss of chance; distinguished here)
- La Salle Bank, N.A. v. C/HCA Dev. Corp., 384 Ill. App. 3d 806 (Ill. App. 2008) (instructions must fairly, fully, and comprehensively inform the jury of relevant law)