Dillon v. Evanston Hospital

Supreme Court of Illinois · Torts

TortsMedical malpracticeDamagesJury instructionsmedical malpracticeincreased riskfuture injurypresent damages

Facts

During plaintiff's breast-cancer treatment, Dr. Sener inserted a catheter into her upper chest and later attempted to remove it, but only part of the catheter was removed and a nine-centimeter fragment remained in her body. A later chest X ray at another hospital revealed that the fragment had migrated to her heart, with the tip embedded in the wall of the right atrium or right ventricle and the rest floating free. Doctors generally advised against removal because of the risks of tearing the heart wall or causing the fragment to move further, so plaintiff left it in place. At trial, evidence showed that the fragment created risks of infection, perforation, arrhythmia, embolization, and further migration, though none of those conditions had yet occurred.

Issue

May a plaintiff in Illinois recover damages for an increased risk of future injury even when the future injury is not reasonably certain to occur? If so, was the jury properly instructed on how to award damages for that element of harm?

Rule

A plaintiff may recover for all demonstrated injuries, including an increased risk of future injury, if the plaintiff proves that the defendant's negligence increased that risk and that the increased risk has a basis in the evidence rather than speculation. Compensation for a future injury that is not reasonably certain to occur is permitted, but the amount awarded must reflect the proven probability that the future harm will occur.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Milwaukee, Dr. Omar Patel negligently leaves a small wire fragment inside Lena Morales's leg during surgery. At trial, two experts testify that the fragment creates a 15% risk of a serious infection over the next decade, but Lena has not yet developed any infection.

Under the governing rule, may Lena recover damages for that future risk?

Explanation. The majority held that a plaintiff may recover for all demonstrated injuries, including an increased risk of future injury, if the defendant's negligence increased that risk and the risk has a basis in the evidence rather than speculation. The plaintiff need not show the future injury is reasonably certain or more likely than not to occur. But the amount awarded must reflect the proven probability of the future harm. (Derived from Dillon v. Evanston Hospital (n.d.).)