{ "id": 58949, "name": "DIANE DILLON, Appellee, v. EVANSTON HOSPITAL et al., Appellants", "name_abbreviation": "Dillon v. Evanston Hospital", "decision_date": "2002-05-23", "docket_number": "No. 91517", "first_page": "483", "last_page": "510", "citations": [ { "type": "official", "cite": "199 Ill. 2d 483" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "151 Ill. App. 3d 42", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3539334 ], "year": 1986, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0042-01" ] }, { "cite": "233 Ill. App. 3d 197", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5196080 ], "year": 1992, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0197-01" ] }, { "cite": "235 Ill. 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Super. 280", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 777937 ], "year": 1967, "pin_cites": [ { "page": "287-88" } ], "opinion_index": 0, "case_paths": [ "/pa-super/209/0280-01" ] }, { "cite": "267 Or. 402", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2129546 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "410", "parenthetical": "\" 'Admittedly the probability of [plaintiff] getting epileptic seizures is low and it should be weighed by the jury accordingly' \"" }, { "page": "679", "parenthetical": "\" 'Admittedly the probability of [plaintiff] getting epileptic seizures is low and it should be weighed by the jury accordingly' \"" } ], "opinion_index": 0, "case_paths": [ "/or/267/0402-01" ] }, { "cite": "176 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544914 ], "year": 1997, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0095-01" ] }, { "cite": "69 Ill. 556", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2636271 ], "year": 1873, "pin_cites": [ { "page": "559-60", "parenthetical": "\"For such a cause of action *** there can not be successive suits brought from time to time, as damages may in the future be suffered, but the recovery is once for all, and may embrace prospective as well as accrued damages\"" } ], "opinion_index": 0, "case_paths": [ "/ill/69/0556-01" ] }, { "cite": "110 Ill. 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Rev. 875", "category": "journals:journal", "reporter": "Rutgers L. Rev.", "year": 1964, "pin_cites": [ { "page": "876", "parenthetical": "all-or-nothing approach \"is the majority rule in the United States\"" } ], "opinion_index": 0 }, { "cite": "90 Yale L.J. 13", "category": "journals:journal", "reporter": "Yale L.J.", "opinion_index": 0 }, { "cite": "684 F.2d 111", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 529476, 3633740 ], "year": 1982, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/f2d/684/0111-01", "/us-app-dc/221/0337-01" ] }, { "cite": "55 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3410258 ], "year": 1977, "pin_cites": [ { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0822-01" ] }, { "cite": "279 Ill. App. 3d 398", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75244 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "400" }, { "page": "401" }, { "page": "400-01" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0398-01" ] }, { "cite": "132 Ill. App. 3d 877", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3441479 ], "year": 1985, "pin_cites": [ { "page": "884", "parenthetical": "finding \"that whether there is a 1% possibility [of plaintiff losing her foot] or a 99% possibility, each is an element of damage which should be considered by the jury\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0877-01" ] }, { "cite": "213 Ill. App. 3d 6", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2604368 ], "year": 1991, "pin_cites": [ { "page": "33-34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0006-01" ] }, { "cite": "306 Ill. 370", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5780692 ], "year": 1922, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill/306/0370-01" ] }, { "cite": "243 Ill. 263", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3412535 ], "year": 1909, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/ill/243/0263-01" ] }, { "cite": "150 Ill. App. 3d 1052", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3503334 ], "year": 1986, "pin_cites": [ { "page": "1061" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/1052-01" ] }, { "cite": "99 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3103123 ], "year": 1981, "pin_cites": [ { "page": "678", "parenthetical": "collecting cases" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0669-01" ] }, { "cite": "197 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2483901 ], "year": 1990, "pin_cites": [ { "page": "864-65", "parenthetical": "offer of proof unnecessary where expert's opinion testimony was obvious" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0855-01" ] }, { "cite": "274 Ill. App. 3d 702", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291650 ], "year": 1995, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0702-01" ] }, { "cite": "155 Ill. 2d 422", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810080 ], "year": 1993, "pin_cites": [ { "page": "457-58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0422-01" ] }, { "cite": "244 Ill. 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App. 3d", "case_ids": [ 5102017 ], "year": 1993, "pin_cites": [ { "page": "262" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/244/0260-01" ] }, { "cite": "127 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564058 ], "year": 1989, "pin_cites": [ { "page": "203" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/127/0192-01" ] } ], "analysis": { "cardinality": 1672, "char_count": 45821, "ocr_confidence": 0.787, "pagerank": { "raw": 6.086321107353872e-07, "percentile": 0.9554443135487822 }, "sha256": "f661b97b1be076e33caca89e1f5e2a8cf134691f6b9a991c9e25064dafa49aa8", "simhash": "1:e7e9800e3ccb1497", "word_count": 7563 }, "last_updated": "2023-07-14T21:46:57.269661+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DIANE DILLON, Appellee, v. EVANSTON HOSPITAL et al., Appellants." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nPlaintiff, Diane Dillon, brought a medical malpractice action in the circuit court of Cook County against, inter alios, Evanston Hospital (hereafter hospital) and Dr. Stephen Sener. A jury found against these particular defendants and in favor of plaintiff. The appellate court affirmed. No. 1 \u2014 98\u20142893 (unpublished order under Supreme Court Rule 23). We allowed the hospital and Dr. Sener\u2019s petition for leave to appeal (177 Ill. 2d R. 315(a)). We now affirm the judgments below in part and reverse in part, and remand the cause to the trial court for a new trial solely on the issue of damages for the increased risk of future injury.\nBACKGROUND\nDuring the course of treatment for breast cancer, Dr. Sener surgically inserted a catheter into a vein in plaintiffs upper chest under the clavicle. He performed the insertion on April 20, 1989. The purpose of the catheter was to provide a means to administer chemotherapy and to draw blood without repeatedly inserting needles into plaintiffs veins. The catheter inserted into plaintiff was approximately 16 centimeters long.\nAfter plaintiff completed chemotherapy, the catheter ceased to function, and on July 13, 1990, Dr. Sener removed it. However, unbeknownst to plaintiff \u2014 or Dr. Sener \u2014 the catheter was not removed in its entirety. Rather, Dr. Sener removed only a seven-centimeter portion of the catheter. A nine-centimeter catheter fragment remained in plaintiff. She was not informed of any abnormality despite the fact that she had a chest X ray taken at the hospital in December 1990.\nIn December 1991, plaintiff had a routine chest X ray taken at a different hospital. The X ray revealed that the catheter fragment had migrated to plaintiffs heart. The tip of the fragment is embedded in the wall of the right atrium or the right ventricle. The rest of the fragment is floating free in plaintiffs heart.\nUpon learning that the fragment was in her heart, plaintiff met with Dr. Sener. He could not recall his specific actions in removing the catheter from plaintiff. However, he acknowledged that the fragment was in her heart. Based on the length of time that the fragment had been there, Dr. Sener recommended that plaintiff not attempt to remove it because several risks were attendant to removal. For example, all or part of the fragment could escape and travel further into the heart, making retrieval more difficult, or removal could tear the heart wall. Dr. Sener opined that it would be more dangerous to attempt to remove the catheter fragment than it would be to leave it in place.\nPlaintiff sought opinions from other physicians; all but one agreed with Dr. Sener. Based on the majority of medical opinions she received, plaintiff decided to leave the catheter fragment in her heart.\nPlaintiff filed a complaint for medical malpractice against Dr. Sener, Dr. David Lim, who assisted in the insertion, the hospital, and the catheter\u2019s manufacturer, Davol, Inc., a division of Bard, Inc. (hereafter Davol). After the completion of pretrial proceedings, the trial court entered summary judgment in favor of Dr. Lim. Trial commenced on plaintiffs fifth amended complaint, which named as additional defendants radiologist Dr. Ronald Port and nurse Kathy Henderson.\nAt the close of a trial, the jury found in favor of plaintiff and against Dr. Sener and the hospital. However, the jury found in favor of the remaining defendants. Dr. Sener and the hospital did not present the jury with any special interrogatories to determine on which basis the jury found defendants to have been negligent. The jury awarded plaintiff $1.5 million for past pain and suffering, $1.5 million for future pain and suffering, and $500,000 for the increased risk of future injuries. Plaintiff had not sought compensation for past or future medical expenses. Dr. Sener and the hospital appealed.\nThe appellate court affirmed, with one justice dissenting. No. 1 \u2014 98\u20142893 (unpublished order under Supreme Court Rule 23). Dr. Sener and the hospital appeal. Additional pertinent facts will be discussed in the context of the issues raised in this appeal.\nDISCUSSION\nI. Fifth Amended Complaint: Negligent Insertion\nDr. Sener and the hospital first contend that plaintiffs fifth amended complaint was untimely.\nPlaintiff filed her original complaint on July 1, 1992. Count I alleged that the hospital was negligent in (1) allowing the catheter to be removed in a way that caused a portion to remain in plaintiff, (2) failing to advise plaintiff of the fact that a portion of the catheter remained in her, and (3) providing a defective catheter. In count II, plaintiff alleged that Dr. Sener failed to remove the catheter. Similarly, in count III, plaintiff alleged that Dr. Setter\u2019s actions in not removing the entire catheter were negligent. Notably, the original complaint contained no allegations against Dr. Sener or the hospital that the insertion of the catheter was negligent.\nPlaintiff attached to the original complaint a report of a reviewing health professional. The report stated that the cause of action was meritorious because, inter alia, the catheter was improperly placed.\nOn April 19, 1993, plaintiff filed a second amended complaint adding a count against Dr. Lim, which alleged that he assisted in plaintiff\u2019s surgery and that he negligently inserted the catheter. On March 21, 1995, the trial court granted him summary judgment.\nPlaintiff continued to amend her original complaint throughout the pretrial proceedings as discovery was being conducted. In January 1994, Davol answered plaintiffs fourth amended complaint. Davol asserted the affirmative defense that plaintiffs injuries were proximately caused by the intervening and superseding negligent acts as described in the reports of reviewing health professionals attached to the fourth amended complaint. One of those reports stated in part that the catheter had been improperly placed. On September 6, 1996, plaintiff filed answers to supplemental interrogatories regarding her expert witness, Dr. Michael Blank. Dr. Blank had a new opinion after reviewing the interrogatory answers of Davol, which disclosed opinions critical of the catheter\u2019s insertion. According to Dr. Blank, if Dr. Sener had inserted the catheter in the manner Davol asserted, then Dr. Blank believed that Dr. Sener had deviated from the standard of care in inserting the catheter, which ultimately resulted in the catheter\u2019s fracture. On November 6, 1996, in supplemental answers to interrogatories, plaintiff disclosed that Dr. Blank might opine, based on his review of the X rays, that Dr. Sener negligently inserted the catheter in an improper location that ultimately resulted in the catheter\u2019s fracture.\nIn May 1997, Davol disclosed that Dr. Paul Goldfarb would testify to his opinion that the catheter was improperly inserted, causing it to fracture as the result of repeated compression by the clavicle as the catheter passed over the first rib.\nOn November 17, 1997, plaintiff moved to file her fifth amended complaint adding allegations that the catheter was improperly inserted. The trial court allowed plaintiff leave to file because the removal of the catheter was, according to the court, \u201ca completion of the same process\u201d as the insertion. Plaintiff alleged as follows. Counts I and II alleged that Dr. Sener and the hospital negligently inspected, inserted, and removed the catheter; failed to ascertain that the catheter fragment remained in plaintiff; and failed to advise plaintiff that the fragment remained in her body. Count III alleged that Dr. Sener\u2019s actions should be considered negligent under the theory of res ipsa loquitur. Count IV alleged that Davol negligently designed and manufactured the catheter; count V alleged that Dr. Port failed to see the catheter fragment in the December 1990 X ray; and count VI alleged that nurse Henderson improperly maintained the catheter after its insertion in plaintiff. Jury selection began the next day.\nDr. Sener and the hospital contend that the trial court abused its discretion in allowing plaintiff to file her fifth amended complaint, containing the allegations of negligent insertion, because it was not timely. In essence, they believe that plaintiff had ample knowledge from the outset of the litigation that Dr. Sener inserted the catheter and improperly waited until the eve of trial to officially allege negligence regarding the catheter\u2019s insertion. Plaintiff responds that Dr. Sener and the hospital cannot complain because plaintiff presented several theories of negligence, the jury returned a general verdict against them on the negligence claim, and they failed to submit a special interrogatory on any matter. Dr. Sener and the hospital in turn reply that we may not consider plaintiffs defense because she did not raise it in the appellate court.\nWe may consider plaintiffs defense of the trial court\u2019s judgment. An appellee in the appellate court may raise a ground in this court which was not presented to the appellate court in order to sustain the judgment of the trial court, as long as there is a factual basis for it. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 502 (1988); Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 209 (1983).\nCount I of the fifth amended complaint alleged several theories of negligence in addition to the theory of which Dr. Sener and the hospital complain, i.e., negligent insertion. They have not challenged the sufficiency of the evidence on any of those other theories. Also, the jury returned a general verdict against them on the negligence claim. Section 2 \u2014 1201(d) of the Code of Civil Procedure provides in pertinent part:\n\u201cIf several grounds of recovery are pleaded in support of the same claim, whether in the same or different counts, an entire verdict rendered for that claim shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict ***.\u201d 735 ILCS 5/2 \u2014 1201(d) (West 2000).\nBecause Dr. Sener and the hospital did not submit special interrogatories, there is no way of knowing on what theory the jury found defendants negligent. \u201cWhen there is a general verdict and more than one theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either theory, and the defendant, having failed to request special interrogatories, cannot complain.\u201d Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987). We shall not set aside the verdict based on this contention.\nII. Res Ipsa Loquitur\nDr. Sener and the hospital next contend that the trial court erred in instructing the jury on plaintiffs theory of res ipsa loquitur against Dr. Sener. As with the prior contention, plaintiff defends the. judgment by pointing to the jury verdict. The verdict form shows that the jury returned separate verdicts in favor of plaintiff against Dr. Sener on both negligence and res ipsa loquitur. Because the evidence supports the verdict based on negligence, we shall not set aside the verdict based on this contention. See Miller v. DeWitt, 37 Ill. 2d 273, 286-87 (1967); 735 ILCS 5/2 \u2014 1201(d) (West 2000).\nIII. Admission of Videotape\nDr. Sener and the hospital contend that the trial court erred in allowing the jury to view a videotape depicting a bacterial infection in the heart that spread to the brain. The appellate court concluded that the trial court\u2019s ruling was not an abuse of discretion.\nDr. Sener and the hospital bring this assignment of error to this court. However, their three-paragraph argument does not contain any authority. Supreme Court Rule 341(e)(7) provides that a litigant\u2019s brief must contain citations to the relevant authority supporting the argument on appeal. 188 Ill. 2d R. 341(e)(7). \u201cA court of review is entitled to have the issues clearly defined and to be cited pertinent authority. A point not argued or supported by citation to relevant authority fails to satisfy the requirements of Rule 341(e)(7).\u201d Canteen Corp. v. Department of Revenue, 123 Ill. 2d 95, 111-12 (1988); accord Kelley v. Kelley, 317 Ill. 104, 107 (1925). Although we could, in light of the violation of Rule 341(e)(7), consider this matter waived, we instead will exercise our discretion in this matter and address the issue on the merits since we can discern the question sought to be resolved. See People ex rel. Carter v. Touchette, 5 Ill. 2d 303, 305 (1955); People v. Jung, 192 Ill. 2d 1, 12-13 (2000) (Freeman, J., specially concurring, joined by Miller and McMorrow, JJ.); Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253, 256 (1993).\nAfter reviewing the record, we hold that the trial court did not abuse its discretion by admitting the videotape as demonstrative evidence. Dr. David Snydman, qualified and board certified in infectious diseases, testified that the video animation would be helpful in explaining to the jury the general development of endocarditis, a condition for which plaintiff is now at risk. He clearly and specifically explained the relevant differences between the type and location of infection depicted in the videotape and the infection that plaintiff may suffer in the future, owing to the presence of the catheter fragment. Further, Dr. Sener and the hospital had the right and the opportunity to cross-examine Dr. Snydman so as to assure that the videotape could not have misled or confused the jury.\nIV Exclusion of Cumulative Testimony Dr. Sener and the hospital next contend that the trial court erred in excluding as cumulative the testimony of one of their experts, Dr. John Raaf. The record shows that during the court\u2019s consideration of motions in limine, the court discussed generally the problem of cumulative testimony and informed counsel for both sides that the court would not entertain cumulative medical testimony and would sustain objections to such testimony.\nDr. Richard Vasquez testified as an expert on behalf of defendants. Dr. Vasquez opined that Dr. Sener had met the medically relevant standard of care.\nDr. Sener and the hospital then called Dr. Raaf as an expert. After listening to the equivalent of approximately 20 record pages of testimony, the trial court called a sidebar to express concern regarding Dr. Raaf s testimony. The court stated that if Dr. Raaf was about to testify regarding the medical standard of care, then that testimony would be cumulative. Defense counsel stated that Dr. Raaf s testimony would go to the medical standard of care. Defense counsel declined to make an offer of proof as to other matters to which Dr. Raaf could testify. The court excused Dr. Raaf and told the jury:\n\u201cTHE COURT: Folks, after talking with the lawyers, I have \u2014 I have determined that the last witness, Dr. Raaf, his testimony was going to be on similar topics to those we have covered.\nSo I\u2019ve decided it would be more efficient on use of your time if we move on to another topic, okay?\nTHE JURY: Thank you.\u201d\nThe appellate court found no abuse of discretion.\nInitially, we note plaintiffs argument, in defense of the judgment, that we are precluded from reviewing this contention because Dr. Sener and the hospital failed to make an offer of proof. When a trial court excludes evidence, no appealable issue remains unless a formal offer of proof is made. The failure to do so results in a waiver of the issue on appeal. The purpose of an offer of proof is to inform the trial court, opposing counsel, and a reviewing court of the nature and substance of the evidence sought to be introduced. However, an offer of proof is not required where it is apparent that the trial court clearly-understood the nature and character of the evidence sought to be introduced. People v. Peeples, 155 Ill. 2d 422, 457-58 (1993); see also In re A.M., 274 Ill. App. 3d 702, 709 (1995); M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 103.7, at 23-24 (7th ed. 1999). In this case, an offer of proof was not required because the trial court understood that Dr. Raaf would testify as to the medical standard of care. See First National Bank of Mount Prospect v. Village of Mount Prospect, 197 Ill. App. 3d 855, 864-65 (1990) (offer of proof unnecessary where expert\u2019s opinion testimony was obvious).\nTurning to the merits, the exclusion of cumulative evidence is within the discretion of the trial court, whose ruling will not be reversed absent a clear abuse of that discretion. Kozasa v. Guardian Electric Manufacturing Co., 99 Ill. App. 3d 669, 678 (1981) (collecting cases). This discretion includes limiting the number of expert witnesses. See Yassin v. Certified Grocers of Illinois, 150 Ill. App. 3d 1052, 1061 (1986); M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 403.1, at 192 (7th ed. 1999).\nDr. Sener and the hospital note that plaintiff and Davol were allowed to present several expert witnesses to criticize various aspects of Dr. Sener\u2019s conduct, while he and the hospital could present only one. They posit: \u201cIt is common knowledge that in medical malpractice cases, each side presents two or three expert witnesses to support the conduct or criticize the conduct of the Defendant.\u201d They assert that \u201c[t]he abuse of discretion in this case is the uneven treatment of the parties.\u201d\nWe cannot accept this contention. As in the appellate court, Dr. Sener and the hospital do not indicate how the evidence that Dr. Raaf would have presented, i.e., his opinion that Dr. Sener had met the medically relevant standard of care, was not cumulative to the testimony of Dr. Vasquez. Nor have they shown that the expert testimony that plaintiff and Davol presented was in any way cumulative. Further, Dr. Sener and the hospital presented several experts and treating physicians, who testified on various aspects of the case for the defense. We uphold the ruling of the trial court.\nV Damages: Increased Risk of Future Injury\nDr. Sener and the hospital next contend that the trial court erred in instructing the jury that it could award plaintiff damages for \u201c[t]he increased risk of future injuries.\u201d Plaintiffs argument to the contrary notwithstanding, we note that this issue was adequately preserved for appellate review.\nThere was evidence presented at trial establishing the proximate causal connection between the actions of Dr. Sener and the hospital and the catheter fragment becoming embedded in plaintiff\u2019s heart. On medical advice, plaintiff chose not to attempt removal of the fragment. All the expert witnesses but one believed that the risks of injury from an attempted removal of the fragment outweighed the risks that would exist if the catheter remained in the heart. The attendant risks of the catheter remaining were infection, perforation of the heart, arrhythmia, embolization, and further migration of the fragment. At the time of trial, plaintiff had not suffered from any of these conditions, although she did suffer from anxiety over the fragment\u2019s presence.\nThe evidence was that it was not reasonably certain that plaintiff would in the future suffer the injuries for which she was at risk due to the fragment\u2019s presence in her heart. Several physicians testified about the risk of infection, with the lowest estimated risk being close to zero and the highest being 20%. The risk of arrhythmia was less than 5%. The risks of perforation and migration were also small. The risk of embolization was low to nonexistent.\nThe jury instruction that addressed compensation for plaintiffs increased risks stated in relevant part:\n\u201cIf you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved by the evidence to have resulted from the negligence of one or more of the defendants, taking into consideration the nature, extent, and duration of the injury:\nThe increased risk of future injuries.\nThe pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.\u201d (Emphasis added.)\nThis instruction was a modified combination of Illinois Pattern Jury Instructions, Civil, No. 30.01 and No. 30.05 (3d ed. 1995). The modification was the addition of the italicized sentence on the increased risk of future injuries. There is no Illinois pattern jury instruction for that element of damages.\nThe jury awarded plaintiff $500,000 for her increased risk of future injuries. The appellate court upheld the award, holding that the trial court did not err in instructing the jury that plaintiff could be compensated for the increased risk of future harm.\nThis court has historically rejected assessing damages for future injuries. This court has explained: \u201cIt would be plainly unjust to require a defendant to pay damages for results that may or may not ensue and that are merely problematical. To justify a recovery for future damages the law requires proof of a reasonable certainty that they will be endured in the future.\u201d Amann v. Chicago Consolidated Traction Co., 243 Ill. 263, 267 (1909). In 1922, this court reiterated this position in Stevens v. Illinois Central R.R. Co., 306 Ill. 370, 377 (1922).\nBased on the principles noted in Amann and Stevens, some panels of our appellate court have denied recovery for an increased risk of future injury that is not reasonably certain to occur. See, e.g., Wehmeier v. UNR Industries, Inc., 213 Ill. App. 3d 6, 33-34 (1991). However, other panels of our appellate court have allowed compensation for an increased risk of future injury, notwithstanding the improbability of the injury\u2019s occurrence. See, e.g., Jeffers v. Weinger, 132 Ill. App. 3d 877, 884 (1985) (finding \u201cthat whether there is a 1% possibility [of plaintiff losing her foot] or a 99% possibility, each is an element of damage which should be considered by the jury\u201d). The rationale of those decisions allowing recovery is that \u201cthe increased risk is itself a present injury which should be as compensable as any other present injury.\u201d Anderson v. Golden, 279 Ill. App. 3d 398, 400 (1996); accord Harp v. Illinois Central Gulf R.R. Co., 55 Ill. App. 3d 822, 827 (1977). In light of the above, a divergence of authority exists in Illinois whether a plaintiff may recover damages for the increased risk of future injuries.\nCases such as Stevens and Amann and the decisions of our appellate court which adhere to them represent the majority view:\n\u201cThe traditional American rule *** is that recovery of damages based on future consequences may be had only if such consequences are \u2018reasonably certain.\u2019 Recovery of damages for speculative or conjectural future consequences is not permitted. To meet the \u2018reasonably certain\u2019 standard, courts have generally required plaintiffs to prove that it is more likely than not (a greater than 50% chance) that the projected consequence will occur. If such proof is made, the alleged future effect may be treated as certain to happen and the injured party may be awarded full compensation for it; if the proof does not establish a greater than 50% chance, the injured party\u2019s award must be limited to damages for harm already manifest.\u201d Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C. Cir. 1982).\nAccord 2 D. Dobbs, Remedies \u00a7 8.1(7), at 407 (2d ed. 1993); J. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 13'53, 1370-72 (1981); Note, Damages Contingent Upon Chance, 18 Rutgers L. Rev. 875, 876 (1964) (all-or-nothing approach \u201cis the majority rule in the United States\u201d). As one court has explained: \u201cIn evaluating damages in a tort action, a trier is concerned with reasonable probabilities, not with possibilities.\u201d Healy v. White, 173 Conn. 438, 443, 378 A.2d 540, 544 (1977), overruled, Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990). \u201c[A] consequence of an injury which is possible, which may possibly ensue, is a risk which the injured person must bear because the law cannot be administered so as to do reasonably efficient justice if conjecture and speculation are to be used as a measure of damages. On the other hand, a consequence which stands on the plane of reasonable probability, although it is not certain to occur, may be considered in the evaluation of the damage claim against the defendant. In this way, to the extent that men can achieve justice through general rules, a just balance of the warring interests is accomplished.\u201d Budden v. Goldstein, 43 N.J. Super. 340, 347, 128 A.2d 730, 734 (1957).\nNot all jurisdictions follow the majority rule. For example, in Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), the Supreme Court of Connecticut provided an analysis that revealed the problems inherent with the majority approach. That court criticized the \u201call-or-nothing\u201d approach as follows:\n\u201cIn essence, if a plaintiff can prove that there exists a 51 percent chance that his injury is permanent or that future injury will result, he may receive full compensation for that injury as if it were a certainty. If, however, the plaintiff establishes only a 49 percent chance of such a consequence, he may recover nothing for the risk to which he is presently exposed. Although this all or nothing view has been adopted by a majority of courts faced with the issue, the concept has been severely criticized by numerous commentators. By denying any compensation unless a plaintiff proves that a future consequence is more likely to occur than not, courts have created a system in which 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. This system is inconsistent with the goal of compensating tort victims fairly for all the consequences of the injuries they have sustained, while avoiding, so far as possible, windfall awards for consequences that never happen.\u201d Petriello, 215 Conn. at 393-94, 576 A.2d at 482-83.\nAccord DePass v. United States, 721 F.2d 203, 208 (7th Cir. 1983) (Posner, J., dissenting) (\u201cA tortfeasor should not get off scot-free because instead of killing his victim outright he inflicts an injury that is likely though not certain to shorten the victim\u2019s life\u201d); 90 Yale L.J. at 1376-81 (criticizing all-or-nothing approach as arbitrary); 2 G. Boston, Stein on Personal Injury Damages \u00a7 9:16, at 9 \u2014 31 through 9 \u2014 32 (3d ed. 1997) (same).\nWe believe that the split of authority in our appellate court compels us to revisit this issue and reexamine our holdings in Amann and Stevens. Our review of cases from other jurisdictions indicates a trend toward allowing compensation for increased risk of future injury as long as it can be shown to a reasonable degree of certainty that the defendant\u2019s wrongdoing created the increased risk. Anderson, 279 Ill. App. 3d at 400 (citing cases); see also United States v. Anderson, 669 A.2d 73 (Del. 1995); 2 J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions \u00a7 13.02 (2001); 2 G. Boston, Stein on Personal Injury Damages \u00a7 9:16, at 9 \u2014 30 (3d ed. 1997) (\u201cCompensation should be given for the fact of increased susceptibility\u201d). This reasoning shows that \u201c[t]he primary motivation of the courts for permitting damages for such an injury is fairness.\u201d 2 J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions \u00a7 13.02, at 13 \u2014 8 (2001). Further, based on the principle of single recovery, \u201c[o]ur legal system provides no opportunity for a second look at a damage award so that it may be revised with the benefit of hindsight.\u201d Petriello, 215 Conn. at 395, 576 A.2d at 483.\nBased on this reasoning, the appellate court in this case relied on the appellate court\u2019s decision in Anderson. There, the court stated that where a defendant\u2019s negligence causes a plaintiff to suffer a present injury, the plaintiff is entitled to compensation for the full extent of the injury. If a defendant\u2019s negligence places a plaintiff at greater risk of sustaining future injuries than if the negligence had not occurred, the appellate court saw \u201c \u2018no legitimate reason why [the plaintiff] should not receive present compensation based upon the likelihood of the risk becoming a reality.\u2019 \u201d Anderson, 279 Ill. App. 3d at 401, quoting Petriello, 215 Conn. at 396, 576 A.2d at 483. The Anderson court held that a plaintiff who has competent evidence which shows that a defendant has negligently caused her to bear the burden of an increased risk of future injury may present evidence of the increased risk as an element of present damages.\nThe Anderson court further noted that the treatment of an increased risk of future injury as a present injury does not run afoul of the general rule that possible future damages are not compensable absent evidence that such damages are reasonably certain to occur. The court reasoned that this rule stems from the principle that damages may not be awarded on the basis of speculation or conjecture. An award of damages 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\u2019s negligence. Therefore, there is no element of speculation or conjecture in awarding damages for increased risks. Anderson, 279 Ill. App. 3d at 400-01.\nLike the court in Anderson, we also believe that the Connecticut court\u2019s approach to this issue better comports with this state\u2019s principle of single recovery. An entire claim arising from a single tort cannot be divided and be the subject of several actions, regardless of whether or not the plaintiff has recovered all that he or she might have recovered. This is true even as to prospective damages. There cannot be successive actions brought for a single tort as damages in the future are suffered, but the one action must embrace prospective as well as accrued damages. Mason v. Parker, 295 Ill. App. 3d 1096, 1098 (1998), quoting Radosta v. Chrysler Corp., 110 Ill. App. 3d 1066, 1068-69 (1982); accord 1 D. Dobbs, Remedies \u00a7 3.1, at 277-78 (2d ed. 1993) (\u201cThe damages remedy is not conditional, and it is not payable periodically as loss accrues unless a statute so provides. So the damages award is traditionally made once, in a lump sum to compensate for all the relevant injuries, past and future\u201d). Indeed, this court long ago so held in the specific context of a medical malpractice action. See Howell v. Goodrich, 69 Ill. 556, 559-60 (1873) (\u201cFor such a cause of action *** there can not be successive suits brought from time to time, as damages may in the future be suffered, but the recovery is once for all, and may embrace prospective as well as accrued damages\u201d).\nThe single recovery principle requires that all damages, future as well as past, must be presented and considered at the time of trial. \u201cThis in turn faces the tribunal with the difficult and uncertain task of prophecy, with no chance for second-guessing where the prophecy turns out to be mistaken, or where the parties have failed to present all items of their claims.\u201d 4 F. Harper, F. James, & O. Gray, Torts \u00a7 25.2, at 498 (2d ed. 1986).\nAlso, this court has previously held in a different context:\n\u201cThere is nothing novel about requiring health care professionals to compensate patients who are negligently injured while in their care. To the extent a plaintiffs chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant\u2019s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery. We therefore reject the reasoning of cases which hold, as a matter of law, that plaintiffs may not recover for medical malpractice injuries if they are unable to prove that they would have enjoyed a greater than 50% chance of survival or recovery absent the alleged malpractice of the defendant. [Citations.] To hold otherwise would free health care providers from legal responsibility for even the grossest acts of negligence, as long as the patient upon whom the malpractice was performed already suffered an illness or injury that could be quantified by experts as affording that patient less than a 50% chance of recovering his or her health.\u201d Holton v. Memorial Hospital, 176 Ill. 2d 95, 119 (1997).\nThe theories of lost chance of recovery and increased risk of future injury have similar theoretical underpinnings. See Anderson, 669 A.2d at 75-76; 2 D. Dobbs, Remedies \u00a7 8.1(7), at 408 (2d ed. 1993).\nWe realize that our decision to recognize damages for the increased risk of future injury is at odds with our previous holdings in Stevens and Amann. However, we note that those cases are over 80 years old, and that scientific advances now enable the medical community to more accurately determine the probability of future injuries than in the past. The risk therefore of undue speculation is lessened. We further note that the split in our appellate court has caused mixed results in cases such as this, where some parties recovered compensation, while others did not. Fairness requires that this court speak to this issue definitively. Having reviewed all of the authorities on this issue, we believe our decision will provide needed stability in this matter for the bench and the bar.\nAccordingly, we hold simply that a plaintiff must be permitted to recover for all demonstrated injuries. The burden is on the plaintiff to prove that the defendant\u2019s negligence increased the plaintiffs risk of future injuries. A plaintiff can obtain compensation for a future injury that is not reasonably certain to occur, but the compensation would reflect the low probability of occurrence. See Feist v. Sears, Roebuck & Co., 267 Or. 402, 410, 517 P.2d 675, 679 (1973) (\u201c \u2018Admittedly the probability of [plaintiff] getting epileptic seizures is low and it should be weighed by the jury accordingly\u2019 \u201d), quoting Schwegel v. Goldberg, 209 Pa. Super. 280, 287-88, 228 A.2d 405, 409 (1967). This \u201cfits comfortably within traditional damage calculation methods.\u201d Anderson, 669 A.2d at 78, citing Petriello, 215 Conn. at 397-98, 576 A.2d at 484; accord 2 G. Boston, Stein on Personal Injury Damages \u00a7 9:16, at 9 \u2014 30 through 9 \u2014 31 (3d ed. 1997) (stating that the solution is not in denying recovery, but in \u201cletting the jury determine on a common sense basis the amount of damages which will reasonably compensate the plaintiff\u2019). \u201cThe defendant\u2019s proper remedy lies in objecting to the excessiveness of the verdict in an appropriate case.\u201d 2 J. Nates, C. Kimball, D. Axelrod & R Goldstein, Damages in Tort Actions \u00a7 13.02, at 13 \u2014 9 (2001).\nHaving determined that this element of damages is compensable, we now consider whether the jury was properly instructed thereon. The record shows that Dr. Sener and the hospital failed to object with specificity to the form of the instruction and to offer their own versions thereof. Accordingly, we could consider this issue waived for appellate review. See 155 Ill. 2d R 366(b) (2) (i); Deal v. Byford, 127 Ill. 2d 192, 203 (1989).\nHowever, the waiver rule is a principle of administrative convenience, an admonition to the parties; it is not a jurisdictional requirement or any limitation upon the jurisdiction of a reviewing court. In this regard, this court has recognized that a reviewing court may, in furtherance of its responsibility to provide a just result and to maintain a sound and uniform body of precedent, override considerations of waiver that stem from the adversarial nature of our system. In re C.R.H., 163 Ill. 2d 263, 274 (1994); Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967); accord 155 Ill. 2d R. 366(a)(5). In this case, for reasons which we will explain, we deem that this responsibility outweighs the waiver by Dr. Sener and the hospital. See, e.g., Welch v. Johnson, 147 Ill. 2d 40, 48 (1992); American Federation of State, County & Municipal Employees, Council 31 v. County of Cook, 145 Ill. 2d 475, 480 (1991).\nIn Illinois, the parties are entitled to have the jury instructed on the issues presented, the principles of law to be applied, and the necessary facts to be proved to support its verdict. The decision to give or deny an instruction is within the trial court\u2019s discretion. The standard for determining an abuse of discretion is whether, taken as a whole, the instructions are sufficiently clear so as not to mislead and whether they fairly and correctly state the law. See Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 388 (2000); accord Korpalski v. Lyman, 114 Ill. App. 3d 563, 568 (1983).\nIn this case, there is no pattern jury instruction on the increased risk of future injury as an element of damages. Accordingly, this is a situation where our pattern instructions are inadequate and additional instruction is appropriate. See Balestri v. Terminal Freight Cooperative Ass\u2019n, 76 Ill. 2d 451, 454-55 (1979). Under Supreme Court Rule 239(a) (177 Ill. 2d R. 239(a)), a nonpattern instruction is permissible if it is simple, brief, impartial, and nonargumentative. Where a unique factual situation, or a point of law, is presented, a nonpattern instruction may be given if it is accurate and will have no improper effect on the jury. Magna Trust, 313 Ill. App. 3d at 388.\nApplying these principles to this case, we conclude that the instruction which the jury received on this element of damages did not adequately state the law. We earlier quoted the jury\u2019s instruction on damages, which included the following description of this element: \u201cThe increased risk of future injuries.\u201d\nThis instruction fails to instruct the jury on several important legal requirements, e.g., the increased risk must be based on evidence and not speculation, and, more importantly, the size of the award must reflect the probability of occurrence. For example, as a result of Petriello, Connecticut Civil Jury Instruction No. 2 \u2014 40(c) was promulgated:\n\u201cDamages \u2014 Compensation for Increased Risk of Injury\n***\nThe plaintiff claims that he/she has suffered an increased risk of [alleged future complication] as a result of the defendant\u2019s negligence. The plaintiff is entitled to recover damages for physical harm resulting from a failure to exercise reasonable care. If the failure to exercise reasonable care increases the risk that such harm will occur in the future, the plaintiff is entitled to compensation for the increased risk. In order to award this element of damages, you must find a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm. The increased risk must have a basis in the evidence. Your verdict must not be based on speculation. The plaintiff is entitled to compensation to the extent that the future harm is likely to occur as measured by multiplying the total compensation to which the plaintiff would be entitled if the harm in question were certain to occur by the proven probability that the harm in question will in fact occur.\u201d (Emphasis added.)\nIn the present case, the instruction given failed to convey the principles of law expressed in the italicized portion of the Connecticut instruction. While not prescribing its use verbatim, we hold that the essence of this instruction fairly and correctly states the law on this element of damages.\nOur responsibility to provide a just result requires reversal on this issue. The partial dissent, pointing to the dictionary meaning of \u201crisk,\u201d concludes that the jury instruction given in this case \u201cwas sufficient to describe the type of assessment the jury was required to make.\u201d 199 111. 2d at 509 (Harrison, C.J., concurring in part and dissenting in part).\nHowever, it must be remembered that juries are composed of laypersons who are not trained to separate issues and to disregard irrelevant matters. That is the purpose of jury instructions. The function of jury instructions is to convey to the jury the correct principles of law applicable to the submitted evidence and, as a result, jury instructions must state the law fairly and distinctly and must not mislead the jury or prejudice a party. See Ono v. Chicago Park District, 235 Ill. App. 3d 383, 386 (1992); Pry v. Alton & Southern Ry. Co., 233 Ill. App. 3d 197, 214 (1992); Fravel v. Morenz, 151 Ill. App. 3d 42, 45 (1986). In the context of this issue, reliance on a dictionary is inadequate to fulfill this purpose.\nOur responsibility to maintain a sound and uniform body of precedent likewise requires reversal on this issue. As we earlier noted, today\u2019s decision represents a departure from the previous holdings of this court. There was a split of authority in the appellate court over whether the increased risk of future injury was compensable as an element of damages. Further, those appellate court decisions that allowed recovery did not discuss the form of the instruction. We have now definitively spoken to this issue. A retrial, in which a jury may apply the correct legal principles to the submitted evidence, is appropriate to maintain a sound and uniform body of precedent.\nThe jury in this case was inadequately instructed on the increased risk of future injury as an element of damages. Accordingly, we reverse plaintiffs damages award for the increased risk of future injury, and remand the cause to the trial court for a new trial solely on that element of damages.\nCONCLUSION\nFor the foregoing reasons, the judgments of the circuit and appellate courts are affirmed in part and reversed in part, and the cause remanded to the circuit court of Cook County for further proceedings consistent with this opinion.\nAppellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded.\nJUSTICE FITZGERALD took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE FREEMAN" }, { "text": "CHIEF JUSTICE HARRISON,\nconcurring in part and dissenting in part:\nThe appellate court\u2019s judgment affirming the judgment of the circuit court should be upheld without qualification. Contrary to my colleagues, I would not remand for a new trial on the element of damages for increased risk of future injuries. The damages instruction tendered by plaintiff was adequate as given. Although my colleagues are quite right that the jury\u2019s assessment of increased risk must be based on evidence, not speculation, that is true of every element of damages. Indeed, it is true of every element of plaintiffs cause of action.\nJuries are told this at the outset of their deliberations. Illinois Pattern Jury Instructions, Civil, No. 1.01(3) (1995), specifically cautions the jury that its verdict \u201cmust be based on evidence and not upon speculation, guess or conjecture.\u201d We do not require this caveat to be repeated in the instructions governing the other aspects of a plaintiffs claim, and there is no reason to require such repetition with respect to a plaintiffs claim for damages based on increased risk of future injuries.\nI am also unpersuaded by the majority\u2019s contention that the damages instruction tendered in this case failed to adequately apprise the jury that the size of its award for increased risk of future injuries must reflect the probability that such injuries will occur. The instruction was specifically phrased in terms of \u201crisk.\u201d By definition, risk includes \u201cthe product of the amount that may be lost and the probability of losing it.\u201d Webster\u2019s Third New International Dictionary 1961 (1986). Accordingly, the charge to the jury here was sufficient to describe the type of assessment the jury was required to make.\nEven if the revisions to the instruction proposed by my colleagues would have been helpful to the jury, that is not an adequate basis under the law for disturbing the jury\u2019s verdict. In assessing the sufficiency of the jury\u2019s instructions, the issue is not whether our court could have phrased the instructions in a better way. It is whether the instructions given, considered as a whole and read as a series, were sufficiently clear so as not to mislead the jury and whether they fairly and correctly stated principles of law which pertain to the case. See Eaves v. Hyster Co., 244 Ill. App. 3d 260, 262 (1993).\nIf the defendants in this case believed that the wording in the instruction on damages was incorrect, incomplete, or otherwise inadequate, it was their duty to object to that instruction and to offer their own remedial versions. Deal v. Byford, 127 Ill. 2d 192, 203 (1989). They did not do so. In the trial court, defendants\u2019 objection was that the issue of increased risk of future injuries should not be presented to the jury at all. Defendants did not take issue with the way that issue was set forth in the instruction tendered by plaintiff, and defense counsel declined an express invitation by the trial judge to propose alternative language. Under these circumstances, any claim of error with respect to the wording of the instruction has been waived. See Diaz v. Chicago Transit Authority, 174 Ill. App. 3d 396, 401-02 (1988).\nIn all other respects, I am in complete accord with the majority\u2019s disposition.", "type": "concurring-in-part-and-dissenting-in-part", "author": "CHIEF JUSTICE HARRISON," } ], "attorneys": [ "David J. Loughnane and Charlene M. Sheridan, of Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellants.", "Corboy & Demetrio, P.C., of Chicago (Thomas A. Demetrio, Barry R. Chafetz, Kenneth T. Lumb and Philip H. Corboy, of counsel), and Herbolsheimer, Lannon, Henson, Duncan & Reagan, EC., of Ottawa (Michael T. Reagan, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 91517.\nDIANE DILLON, Appellee, v. EVANSTON HOSPITAL et al., Appellants.\nOpinion filed May 23, 2002.\nFITZGERALD, J., took no part.\nHARRISON, C.J., concurring in part and dissenting in part.\nDavid J. Loughnane and Charlene M. Sheridan, of Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellants.\nCorboy & Demetrio, P.C., of Chicago (Thomas A. Demetrio, Barry R. Chafetz, Kenneth T. Lumb and Philip H. Corboy, of counsel), and Herbolsheimer, Lannon, Henson, Duncan & Reagan, EC., of Ottawa (Michael T. Reagan, of counsel), for appellee." }, "file_name": "0483-01", "first_page_order": 495, "last_page_order": 522 }