The “Lost Chance” doctrine allows a medical malpractice plaintiff to prove proximate cause by showing that the defendant’s negligent conduct either increased the risk of harm or lessened the effectiveness of treatment. Holton v. Memorial Hosp., 176 Ill.2d 95, 111, 679 N.E.2d 1202, 1209 (1997). This is true even if the chance of recovery would be less than 50%.
Don’t tell the jury though. A number of cases don’t allow a special instruction on the lost chance doctrine. Here is an amazingly important piece of the law that the judge won’t tell the jury about. The cases hold that you, as a plaintiff’s attorney, can tell the jury about the doctrine. Never mind the fact that pattern instruction 1.01 tells jurors that the law is contained in the instructions and to disregard all other statements by attorneys.
This is probably the most bizarre restriction I’ve seen, and really needs to be changed. Fight the power.
(Howard Zimmerle is an accident attorney in Rock Island, and Moline Illinois)