Holton v. Memorial Hospital

CHIEF JUSTICE HEIPLE, specially concurring:

The majority’s opinion is a fine piece of scholarship, copiously researched and admirably crafted; I even agree with some of what is in it. I agree, for instance, with the majority’s conclusion that the wholly improper remarks by the plaintiffs’ attorney and the trial judge regarding the credibility of a defense witness were unduly prejudicial to the defense case and, as a consequence, the jury verdict for the plaintiffs must be reversed. I must, however, take issue with the majority’s novel analysis which purports to reconcile the traditional concept of proximate cause with the so-called "lost chance” doctrine. Accordingly, I concur only in the judgment.

Under the traditional standards for submitting a medical malpractice case to a jury, a plaintiff must produce evidence showing that his injury was "probably” caused by the defendant’s negligence, meaning simply that it is "more probably true than not” that the ultimate harm or condition resulted from such negligence. Borowski v. Von Solbrig, 60 Ill. 2d 418, 424 (1975). In any negligence case, the standard of proof on the causation issue is whether, by a preponderance of the evidence, the negligent act or omission is shown to have been a substantial factor in bringing about the harm or without which the harm would not have occurred. Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 354-55 (1992); Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 232 (1990). The effect of these standards is to bar recovery where it is less probable than not that the defendant’s negligence caused the ultimate harm complained of by the plaintiff.

The lost chance doctrine, as articulated by the majority, loosens the traditional proximate cause standard by permitting the causation issue to go to the jury where there is no evidence of a reasonable probability that the defendant’s negligence caused the plaintiffs ultimate injury. Indeed, the majority opines that the plaintiff need only show to a "reasonable certainty” that the defendant’s negligence caused an "increased risk of harm or lost chance of recovery.” What is particularly baffling about the majority opinion is its steadfast refusal to acknowledge that it is departing from the traditional proximate cause standard and its insistence that the lost chance doctrine "comports” with our prior decisions. This simply is not so. Under the framework set out by the majority, the lost chance doctrine arises where the traditional probability standard of causation is not met. Words have meaning, and despite the majority’s assurances otherwise, "reasonable certainty” means something other than "reasonable probability.”

The law does not, and should not, require proof of an absolute certainty on causation or any other factual issue. While our jurisprudence routinely settles for proof amounting to less than an ontological certitude, how much less? The majority opinion lowers the threshold below the traditional standard of "reasonable probability” to a "reasonable certainty.” I think this is unwise, ill-advised and, on the facts of this case, wholly unnecessary. Proof to a reasonable probability ensures that the possible explanations for the cause of a plaintiffs injury are sufficiently narrow to allow a jury to determine liability. To permit a case to go to a jury on any less evidence invites a jury to impose liability based on speculation and conjecture.

We have always required this level of certainty on the issue of causation before permitting a jury to find a defendant negligent and to award damages. See, e.g., Ney v. Yellow Cab Co., 2 Ill. 2d 74, 80-81 (1954); Neering v. Illinois Central R.R. Co., 383 Ill. 366 , 380 (1943). The majority opinion acknowledges this and quite rightly resolves the proximate cause issue in this case under our traditional standard. As the majority holds, and I agree, this case properly went to the jury because there was evidence that the nurses’ failure to notify the doctors of Mrs. Holton’s worsening condition caused the doctors, at the very least, to prescribe an inappropriate treatment. There was evidence that if the doctors had been so informed, they could have arrested Mrs. Hoiton’s deterioration with medication and could have prevented her condition from deteriorating as far as it did. Thus, Mrs. Holton did establish that the defendant’s negligence more probably than not did cause her injury. It necessarily follows, then, that the majority’s discussion of the lost chance doctrine was unnecessary to the disposition of the case.

So what then is to be made of the majority’s gratuitous discussion of the lost chance doctrine? It is axiomatic that statements in a judicial opinion which are not essential to the disposition of a case or logically necessary to the rationale for the disposition are not authoritative. Geer v. Kadera, 173 Ill. 2d 398, 414 (1996) (Dicta is not binding authority under the rule of stare decisis”); Department of Public Works & Buildings v. Butler Co., 13 Ill. 2d 537, 545 (1958). As such, a later court — even an inferior court — is free to reject those parts of an opinion. A court might issue general pronouncements when it decides a case, but under stare decisis, those pronouncements are not binding precedent unless essential to the disposition of the case. The logic of the rule is quite simple: this court sits to decide real cases and to prescribe rules of decision (see Ill. Const. 1970, art. VI, §§ 1, 4); we are not empowered to promulgate legislation. Since a court’s authority to "make law” is a product of a court’s duty to adjudicate disputes, it follows then that the authority of a court in any given case extends only to what is needed to resolve the particular dispute before it.

Where a rule of law has become established by a series of decisions — like our traditional proximate cause standard — it should be followed. The reasons are multitudinous: certainty, predictability, stability, equity, efficiency and the avoidance of arbitrary decisionmaking. This principle of stare decisis is as basic as the rule of law itself, and is the mainstay against the hubris of a single judge or the tyranny of a shifting majority. This case in particular illustrates the wisdom of denying precedential authority to unnecessary verbiage in judicial opinions. The majority has given precious little thought to how the lost chance doctrine will affect future cases. There is, for example, no clear, principled reason why the lost chance doctrine should not be applied in malpractice actions against other professionals. Thus, if a disgruntled litigant loses a case that he probably would not have won, but is able to prove that his lawyer negligently reduced his chance of winning by some degree, no matter how small, the litigant would be able to pursue a cause of action for malpractice against his attorney under the lost chance doctrine. See Comment, Loss of Chance in Legal Malpractice, 61 Wash. L. Rev. 1479 (1986). Only the client with no chance of success would be foreclosed from some recovery under the lost chance doctrine. There is nothing in the majority opinion or unique to health care professionals that would limit the application of the lost chance doctrine exclusively to medical malpractice cases.

The consequences of the majority opinion are far from clear. I am troubled that the majority has sought to alter the traditional proximate cause standard without considering the likely expansion of the lost chance doctrine into other areas of law. I also fear that the majority’s opinion is just one more step along the road to making medical professionals the insurers of their patients, rendering health care providers liable without regard to whether their negligence caused injury to the plaintiff. Our traditional proximate cause standard provided a safeguard against this sort of injustice, but the majority proposes to loosen the standard considerably with the lost chance doctrine. The majority’s opinion may be an accurate prediction of how this court might someday rule on the lost chance doctrine, but its discussion here amounts to dicta. Therefore, I consider it still to be an open question whether the common law of Illinois recognizes the lost chance doctrine.