Plaintiff need not show risk of future harm is greater than 50 percent to recover damages

Law Reporter, Sep 2002

Plaintiff need not show risk of future harm is greater than 50 percent to recover damages.

Dillon v. Evanston Hosp., _ N.E.2d _, No. 91517,2002 WL 1038725 (Ill. May 23, 2002).

The Illinois Supreme Court held that a plaintiff can recover damages for an increased risk of future injuries even if the probability of incurring the harm is less than 50 percent.

Here, a surgeon left part of a catheter in a patient's heart, and the patient filed suit against the surgeon and the hospital. A jury awarded damages. Defendants appealed the verdict, contending that the trial court erred in instructing the jury that it could award plaintiff damages for the increased risk of future injuries. An intermediate appellate court affirmed.

Affirming in part, the state high court noted that several physicians testified at trial about plaintiff's increased risk of infection, with the lowest estimated risk being close to zero and the highest being 20 percent. Other risks, such as arrhythmia, perforation of the heart, and embolization, were described as low.

Historically, the court said, it has rejected assessing damages for future injuries. To justify a recovery for future damages, the law requires proof of a reasonable certainty that such damages will be endured. To meet this standard, courts have generally required plaintiffs to prove that it is more likely than not that the projected consequence will occur. Under this rule, a plaintiff who establishes only a 49 percent chance of future injury will recover nothing, the court observed.

Under this approach, a significant number of persons receive compensation for future consequences that never occur and, conversely, a significant number of persons receive no compensation at all for consequences that later ensue from risks not rising to the level of probability, the court said. Proponents of the traditional rule have said that damages awards should not be based on speculation. But since an award for an increased risk of future injury is proper only if it can be shown to a reasonable degree of certainty that the risk was proximately caused by the defendant's negligence, there is no element of speculation or conjecture in awarding such damages, the court said.

Additionally, the court noted that the cases establishing the traditional rule are more than 80 years old. Scientific advances now enable the medical community to more accurately determine the probability of future injuries than in the past, and the risk of undue speculation is lessened, the court said.

The court concluded that the jury had been improperly instructed on whether it could award damages for increased risk of future injury; accordingly, it remanded the case for a new trial on that issue.

Plaintiff's Counsel

Alan B. Hunter, Chicago, Ill.