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.



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.”