Unnecessary Changes to Illinois Civil Jury Instructions

June 18, 2011


In the last ten years, we have witnessed an unprecedented number of changes to the Illinois Pattern Jury Instructions (Civil), including changes to longstanding and well established instructions. One of these changes was the 2006 revision to instruction 105.01 which sets forth the standards to be applied in professional negligence cases. This week, the Illinois Supreme Court indicated that the 2006 revision is an incorrect statement of the law. Studt v. Sherman Health Systems, ___ Ill. 2d ___ (No. 108182 June 16, 2011). A pdf copy of the Court’s recent decision may be found at the official Illinois courts website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/June/108182.pdf

Without going into great detail on the reasons for the 2006 revision to instruction number 105.01, it should be sufficient to say that the prior version indicated that the professional “must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified [professional].” The revised 2006 version states that professional negligence “is the failure to do something that a reasonably careful [professional] would do, or the doing of something that a reasonably careful [professional] would not do, under circumstances similar to those shown by the evidence.” The change was said to have a subtle but pronounced effect on the way in which jurors could apply evidence of professional misconduct of individual professionals (as opposed to institutional defendants such as hospitals).


When the 2006 revision was implemented, many of us did not understand why the change was made. After all, the prior version had not been the subject of any great controversy and it had been used for a very long time without apparent concern. Moreover, there had not been a notable change in case law on the standards to be applied to doctors and other professionals in malpractice cases.


Since the revision was put in place five years ago, many professional malpractice trials have proceeded in which the trial judges have had to struggle with the question of whether to instruct the jury using the revised pattern jury instruction or to use the prior (or some other) version of instruction 105.01. It appeared to many judges that the new instruction was an incorrect statement of the law. Many Cook County judges created their own jury instruction on the issue in recognition of the problem created by the 2006 revision. A few appellate court cases have pivoted on the issue as well, causing unnecessary delay in the final disposition of these matters. See, e.g., Lasalle Bank, N.A. v. C/HCA Devel. Corp., 384 Ill. App. 3d 806 (1st Dist. 2008) and Matarese v. Buka, 386 Ill. App. 3d 176 (1st Dist. 2008).


I hope that this week’s decision by the Supreme Court in Studt will cause the Supreme Court’s Committee on Jury Instructions to take pause before they begin “fiddling” with established jury instructions. Perhaps the Supreme Court even needs to intervene to require closer scrutiny of changes recommended by the Committee because one of the most important elements of the justice system is a clear and unequivocal statement of the law which will be consistently applied at trial. When pattern jury instructions are frequently changed, the predictably of the law which will be applied is diminished, which means confidence in the system is damaged. The next change by the Committee, however, should be to formally revoke the 2006 revision to 105.01 with an explanation of why it acted imprudently in making that earlier alteration.



Health Care Lienholders Need Not Pay a Portion of the Expenses of a Lawsuit Which Permitted Recovery for the Lien

March 29, 2011

The recent Illinois Supreme Court decision of Wendling v. Southern Illinois Hospital Services, ___ Ill. 2d ___ (Nos. 110199, 110200 cons. March 24, 2011) clarified a point of law which lawyers and others too often misunderstand. Importantly, the Court explained the differences between a statutory lien claim and a subrogation claim. If you wish to review a copy of the decision from the official Illinois courts website, you may access it here: http://is.gd/N1nI1u

In Wendling, the Court reasserted that the “common fund doctrine” does not apply to statutorily created health care liens such as those imposed by hospitals which have billed for care they provided. Thus, in the event of a settlement or judgment on behalf of an injured plaintiff, the health care provider’s lien must be satisfied in full and no deduction can be retained by the plaintiff either for attorney’s fees or the costs of the litigation.

In Illinois, health care providers may assert a lien on the value of the services which they have provided to a personal injury plaintiff. The lien is permitted only because a statute created that right: The Health Care Services Lien Act, 770 ILCS 23/1 et seq. Under the Act, the total amount of all health care liens is limited to 40% of the judgment or settlement. However, if the total amount of the providers’ bills were not satisfied completely, the providers still have the right to pursue the patient directly for the remaining amount of the bills which were not satisfied by the lien recovery. 770 ILCS 23/45.

As explained by the Wendling Court, the Illinois version of the “common fund” doctrine provides “‘a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.’ [cit. omitted] Underlying the doctrine is the equitable concept that the beneficiaries of a fund will be unjustly enriched by the attorney’s services unless they contribute to the costs of the litigation. [cits. omitted] Courts have applied the common fund doctrine in numerous types of civil litigation, including insurance subrogation claims, class actions, and wrongful_death cases involving an intervenor.[cits. omitted]” In other words, if an entity has paid funds which it would not ordinarily be able recover from anyone, for example an insurance company which was contractually obligated to pay for its insured’s medical expenses, and a lawyer creates a fund (settlement or judgment amount) which permits that entity to recover those outlays, then the entity must share a part of the recovery to pay the party for its costs in creating the fund.

In Wendling, the plaintiff tried to claim that a hospital which had a statutorily created lien, not a subrogation claim, should pay a portion of its lien for the plaintiff’s attorney’s fees and the costs of the lawsuit. Many of us believed this issue had already been decided by the Supreme Court in Maynard v. Parker, 75 Ill. 2d 73, 387 N.E.2d 298, 25 Ill. Dec. 642 (1979), but this time there were powerful amicus curiae briefs filed by the trial lawyers. In the end, the Supreme Court reaffirmed its 1979 holding in Maynard.

Along the way, the Supreme Court noted the differences between subrogation interests and lien claims. Primarily of interest for this decision, the holder of a statutorily created lien has the right to be paid for the lien amount irrespective of whether a recovery is made in the plaintiff’s lawsuit. In essence, the health care provider is the creditor and the plaintiff is the debtor, and the plaintiff must pay for his/her medical bills regardless of what happens in the P.I. lawsuit. In contrast, the holder of a subrogation claim does not ordinarily have an independent right to recover the amounts which were paid to or on behalf of the P.I. plaintiff. The only way the subrogation claimholder can recover is if a fund is created by settlement or judgment in the underlying lawsuit. Accordingly, the Supreme Court noted it to be fair that the subrogation claimant pay a part of the plaintiff’s costs of creating the “common fund” which allowed reimbursement to the subrogee. However, a health care provider with a statutory lien does not need the “common fund” to get paid for its services as the P.I. plaintiff will be required to pay the provider even if a lawsuit has not been filed.

It should be noted that trial lawyers are already trying to have the Illinois legislature enact a law which would get around the holding of this case (and the case law since 1979) by seeking to amend the Health Care Services Lien Act.

Supreme Court Rectifies “Open-Ended Liability” For Construction Contractors and Engineers

January 21, 2011

On January 21, 2111, the Illinois Supreme Court handed down its unanimous decision in Thompson v. Gordon. The Court reversed the holding of the appellate court. I previously commented on the appellate court’s decision, noting the appellate court misapplied the law which sets forth duties of construction entities, and I expressed my hope the Supreme Court would resolve the issues raised by the appellate court’s decision. (See https://triallaw.wordpress.com/2010/06/02/open-ended-liability-for-contractorsengineers/).

Today, the Supreme Court rectified the appellate court’s errant analysis. A copy of the Supreme Court’s decision can be accessed here through the court’s official website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/January/110066.pdf

The case involves a construction engineer who signed a contract to “replace” a bridge. A motorist traveling through the section of replaced bridge was killed in an accident. Her estate sued the engineer alleging he should have done more than just “replace” the prior bridgework but should have improved it to add better median barriers which might have prevented the death.  The appellate court ruled (1) the scope of services section of the construction contract only required “replacement” of the bridge (not improvement), but (2) the portion of the contract which required the engineer to meet professional practice standards raised a question of fact as to whether he should have also suggested and implemented “improvements” to the bridgework.

The Supreme Court ruled that the appellate court was incorrect in determining the scope of the duty by applying a professional negligence standard of care duty, even though the actual scope of the engineer’s duty was contractually established as mere replacement of the prior bridgework. Although the contract indicated the engineer would apply the same skills as other engineers, the Supreme Court held the skill was only that which would be applied to the scope of the contract work, namely the “replacement” of the bridgework (not its improvement).

Importantly, the Supreme Court reinforced its earlier ruling in Ferentchak v. Village of Frankfort105 Ill. 2d 474 (1985). Here, the Court stated that Ferentchak‘s “actual holding … was that the degree of skill and care required of the civil engineer depended on his contractual obligation, and the scope of that duty was defined by the contract.”

This Supreme Court decision  which developed after the appellate court’s ruling. They were concerned about being held liable for work which was done completely according to contractual requirements, but which an “expert” would criticize after the fact as not having been enough in spite of complying with the contract.

Now, with this decision, it seems clear that courts addressing claims against construction entities must first determine the scope of the services contracted for, and second, determine if the work done only on that scope of services was done properly.

This is a good decision which reestablishes long-held law, clarifies the analysis to be used by trial courts, and allows construction entities to have more certainty about the litigation risks to which they might be exposed.

Illinois Adopts Rules of Evidence

October 4, 2010


Until now, the admissibility of evidence in Illinois was primarily governed by the developing case law of reviewing court decisions. Recently, however, the Illinois Supreme Court adopted formal, codified Rules of Evidence. These Rules take effect January 1, 2010. A copy of the Rules may be found here:


As an older lawyer who has worked with the case law pronouncements of our evidentiary rules, I do not fully understand why formal, codified Rules of Evidence must now be imposed. This is especially true given the fact that the Rules of Evidence, as stated in the Commentary accompanying the Rules indicates that these codified Rules for the most part merely restate the case law development of evidentiary rules. In any event, this is the statement  of the Supreme Court committee as to why these Rules were promulgated:

Currently, Illinois rules of evidence are dispersed throughout case law, statutes, and Illinois Supreme Court rules, requiring that they be researched and ascertained from a number of sources. Trial practice requires that the most frequently used rules of evidence be readily accessible, preferably in an authoritative form. The Committee believes that having all of the basic rules of evidence in one easily accessible, authoritative source will substantially increase the efficiency of the trial process as well as expedite the resolution of cases on trial for the benefit of the practicing bar, the judiciary, and the litigants involved. The Committee further believes that the codification and promulgation of the Illinois Rules of Evidence will serve to improve the trial process itself as well as the quality of justice in Illinois.

Truthfully, I don’t believe the presence of these Rules will significantly affect trial practice. Analogous to the adage, “the devil is in the details,”  trial court rulings on the admissibility of evidence will depend on how the appellate courts interpret the general statements of law found in these Rules of Evidence. To the extent that will be founded upon the pre-Rules of Evidence case law, I guess I won’t have to throw out my case law trial book which is 600 pages long in 10 point type and which I have maintained for the last 25 years — thank goodness.

Illinois Supreme Court Strikes Down Caps on Damages

February 4, 2010

Today (February 4. 2010), the Illinois Supreme Court, in a  4 to 2 decision,  struck down the legislative caps on non-economic damages in medical malpractice cases as an unconstitutional violation of the separation of powers between the judiciary and the legislature. Lebron v. Gottlieb Memorial Hospital, ___ Ill. 2d ___ (Nos. 105741 and 105745 cons. Feburary 4, 2010). The full opinion can be found here:  ttp://www.state.il.us/court/Opinions/SupremeCourt/2010/February/105741.pdf

Interestingly, the sole basis for the Court’s decision is the separation of powers. The Court indicated that trial court judges have the inherent authority to correct an abnormally high jury verdict by exercising the power of remittitur. The Court reasoned that because this legislation forces judges to reduce any jury award on non-economic damages which is greater than the amounts indicated in the statute ($1 million against hospitals, $500,000 against doctors), this imposes on a judge’s authority to determine whether an award is excessive.

My view:  The Court’s opinion is awkwardly decided and uncomfortably stretches the separation of powers doctrine to reach the result. The doctrine of remittitur is founded upon a judge’s application of existing law relating to the total amount recoverable in damages, and if a judge decides the jury has improperly applied the current law of damages to award an excessive amount, the judge can reduce the verdict amount (or permit a new trial). The legislation capping non-economic damages set new law which the jury is to apply, so the judge’s remittitur power is not really affected. Under the law, if a jury awarded an amount which was too high under the statute as applied (e.g., the pain and suffering award against a hospital for $1 million was excessive), then the statute does not affect the ability of the trial judge to remit the verdict under available law.

There are other potential bases for striking down the damages caps law but those did not form the rationale of this opinion. The Supreme Court should be honest about why it is striking something down.

The old law professor maxim is “bad facts make bad law.”

Here, it should be “a bad law makes bad law.”