An Illinois appellate court recently reversed the entry of a directed verdict for a defendant in a medical malpractice action, despite acknowledging that the court’s decision may be “in tension” with prior decisions favoring defendants.   In Hemminger v. LeMay, 2014 IL App (3d) 120392, plaintiff Daniel Hemminger sued defendants Dr. Jeffrey LeMay and Sterling Rock Falls Clinic, Ltd., seeking damages for the death of his wife, Tina.  Hemminger alleged that the defendants’ negligent failure to diagnose Tina’s cervical cancer in a timely fashion proximately caused her death by lessening her chance of survival.

Tina saw Dr. LeMay, an obstetrician/gynecologist, complaining of abdominal pain in June 2000.  Dr. LeMay performed a pelvic examination which showed that Tina’s cervix was abnormally large and firm, but did not biopsy Tina’s cervix or order a microscopic examination of her cervix at that time.  Tina was diagnosed with cervical cancer six months later and died in April 2002.  Hemminger proceeded against the defendants under the “lost chance” theory of recovery, which refers to evidence that a defendant’s negligence increased the risk of harm to a plaintiff or lessened the effectiveness of a plaintiff’s treatment.  Hemminger’s expert obstetrician/gynecologist (who was not an oncologist) testified that Tina’s chance of survival would have been 80-90% if Dr. LeMay would have diagnosed Tina’s cancer in June 2000.  The expert testified that the six month delay in diagnosis decreased Tina’s chance of survival to 32%.  The expert, however, was not able to testify what would have happened to Tina’s chance of survival had she received certain treatment and merely testified that the earlier diagnosis occurs, the better the chances of survival.  No connection was made between that general rule and Tina’s specific circumstances.   The defendants moved for a directed verdict, arguing that Hemminger failed to meet his burden of proving proximate causation by establishing that the defendants’ negligence lessened Tina’s chance of survival. The trial court granted the motion finding that Hemminger’s expert offered only generalized evidence based upon cancer survival rates and a general opinion that an earlier diagnosis leads to better results.

On appeal, the appellate court reversed the entry of a directed verdict for the defendants.   The appellate court disagreed with the defendants’ argument that Hemminger’s causation evidence was speculative and inadequate because Hemminger’s expert was unable to opine that the outcome in Tina’s specific case would have been different with earlier treatment. The court found it sufficient that Hemminger’s expert opined that Dr. LeMay’s negligent failure to diagnose Tina’s cervical cancer in June 2000 caused Tina’s chances of survival to decrease.    In a departure from Illinois law, the court found that Hemminger was not required to show that Dr. LeMay’s negligence actually deprived Tina of a better outcome, but only that Dr. LeMay’s negligence increased a risk of harm or a lost chance of recovery, i.e., that Dr. LeMay’s negligence deprived Tina of the opportunity to undergo treatment that could have been more effective if given earlier, regardless whether there was any evidence that such treatment would have actually been effective. The court acknowledged that its decision may have been “in tension” with prior decisions favoring the defendant, but declined to follow those prior decisions.