Plaintiffs Take a Chance: The Development of Nonpattern Jury Instructions on the Loss of Chance Doctrine

In Bailey v. Mercy Hospital & Medical Center, the Illinois Appellate Court, First District, held that a trial court’s refusal to give a loss of chance jury instruction deprived the plaintiff of a fair trial, rejecting longstanding precedent that the Illinois Pattern Jury Instruction on proximate cause adequately addresses loss of chance claims. The court concluded that the pattern instruction fails to distinctly inform juries that a defendant’s negligence may be a proximate cause where it lessens the effectiveness of treatment or increases the risk of an unfavorable outcome, thereby entitling plaintiffs to a separate loss of chance instruction.