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The Takeaways

When it comes to jury instructions, defense attorneys in medical malpractice cases may want to request a:

• non-pattern jury instruction on the sole proximate cause
• special interrogatory to make a jury specify what it found to be the cause of a plaintiff’s injuries.

In addition, in order to stop the accrual of prejudgment interest, medical malpractice defense attorneys may want to:

• consider making a formal settlement offer within the required time period

Introduction

On May 7, 2025, the First District of the Illinois Appellate Court upheld a $20 million verdict against a hospital in a medical malpractice case[i]. In doing so, the Court ruled that:

1. Defendant hospital was entitled to a non-pattern jury instruction on the sole proximate cause, but the trial court’s failure to give this instruction was harmless.
2. The high-low agreement did not constitute a settlement offer within the meaning of the prejudgment interest statute.

Case Background

The parents in this case sued the hospital, their obstetrician, and three resident physicians over their son’s birth defect, which resulted in his permanent disability.

The parties presented different versions of what caused the birth defect. The parents blamed the lack of oxygen during the delivery, while defendants introduced evidence showing that the birth defect was due entirely to fetal growth restriction  during the baby’s gestation.

The trial court refused to instruct the jury on defendants’ sole proximate cause defense on the ground that the recently modified Illinois Pattern Jury Instructions on proximate cause no longer included the language relating to the sole proximate cause. Instead, IPI Civil No. 15.01 merely instructed the jury that, “if you decide that the defendant’s conduct was not a proximate cause of the plaintiff’s injury, then your verdict should be for the defendant.”

Also, while the jury was deliberating, lead counsel for each party exchanged text messages regarding the possibility of a high-low agreement in which defendants agreed to pay plaintiff a minimum recovery in return for the plaintiff’s agreement to accept the maximum amount regardless of the trial’s outcome. In this text exchange, defendants offered to pay plaintiffs the minimum of $6 million and the maximum of $20 million. Plaintiffs refused. The jury then returned a verdict of $20 million in plaintiffs’ favor.

Appellate Court Decision

Defendants appealed the adverse verdict, arguing, among other things, that the trial court erroneously refused to instruct the jury on their sole proximate cause defense. Defendants also argued that plaintiffs weren’t entitled to prejudgment interest in the $20 million verdict because the final high-low agreement constituted a $20 million settlement offer.

Sole proximate cause. In ruling on defendants’ claims, the appellate court first held that the trial court erred by refusing to tender to the jury a non-pattern instruction on the sole proximate cause (which is currently absent from the IPI). The Court explained that pursuant to Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83 (1995), “the defense that a third party or other causative factor is solely to blame for the plaintiff’s injury is a distinct and additional way to argue that the defendant’s conduct was not the proximate cause of the plaintiff’s injury.” Consequently, the revised IPI Civil No. 15.01—which omits the sole proximate cause language—doesn’t adequately reflect this theory of defense. The court held: “we find that, although sentence two of IPI Civil No. 15.01 is an accurate statement of law on proximate cause in general, it does not state the law regarding the sole proximate cause defense with [the] specificity Leonardi requires.”

Nonetheless, the appellate court concluded that defendants were not seriously prejudiced by the absence of the sole proximate cause instruction because, among other things, defendants had explained their theory of causation at length during closing arguments. The court also faulted defendants for failing to submit a special interrogatory asking the jury to specify what it found to be the cause of the minor’s injuries. Thus, the appellate court held that the circuit court’s refusal to instruct the jury on the sole proximate cause did not warrant reversal or a new trial. 

Prejudgment interest. The appellate court held that a high-low agreement did not constitute a settlement offer within the meaning of the prejudgment interest statute. The prejudgment interest statute [735 ILCS 5/2-1303(c)] provides that when a judgment is less than or equal to the amount of the highest written settlement offer made within the relevant time, prejudgment interest may not be added to the amount of the judgment. The First District explained that “a high-low agreement still requires that a case proceed to trial and a verdict be reached.” Thus, “the arrangement cannot reduce the cost of delay or the burden on court dockets, which the legislature sought to alleviate with the prejudgment interest statute.”

[i] Johnson v. Advocate Health & Hospitals Corp., 2025 IL App (1^st) 230087 ADD link after goes live