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The Lost Chance Doctrine

January 3, 2024  ·  By shannen

In medical malpractice cases, there are often multiple providers who have committed errors over an extended period of time, leading to a catastrophic result. Defense lawyers often misrepresent to trial judges the law on proximate cause in Illinois and argue that a jury should not be allowed to consider defendants liable for errors early in a course of treatment if the errors did not directly cause the ultimate injury.

In cases where medical errors by different providers occur over many hours or days, defense lawyers argue that a plaintiff cannot establish proximate because a) a defendant’s errors later in the course of care “broke the causal chain” for errors by other defendants early in the course of care, or b) plaintiff cannot prove the mistakes early in the course of care caused the ultimate injury.

Take this birth injury scenario:

  • A 36-week pregnant woman goes to the Emergency Room at 10:40 p.m. with headache, shortness of breath, palpitations and protein in her urine. These were signs of preeclampsia, a pregnancy-related condition. However, the defendant hospital’s triage nurse admitted the mother to the ER instead of sending her to the Labor and Delivery Unit for monitoring of both mother and baby—the first deviation from the standard of care.
  • The ER physician kept the mother in the ER for hours without contacting the attending obstetrician, and without ordering electronic fetal heart monitoring [EFM]—additional deviations from the standard of care. Eventually the mother’s blood pressure rose to 180/105—abnormally high and a clear sign of severe preeclampsia. The treatment of severe preeclampsia is delivery of the baby. However, the ER physician and a consulting cardiologist chose to send the mother to the hospital’s cardiac catheterization lab instead of the Lab and Delivery Unit, losing an opportunity to monitor the baby and perform a cesarean section.
  • A labor and delivery nurse came to the ER to check for fetal heart tones with a Doppler device, but never recorded her findings in the chart and never instituted continuous fetal heart monitoring. The nurse left and never returned to monitor the baby.
  • At 7:30 a.m., the defendant attending obstetrician arrived in the Cardiac Catheterization Lab. Using a Doppler device, the obstetrician noted that the baby’s heart rate was normal and in the “130’s.” The obstetrician diagnosed the mother as having severe preeclampsia, and ordered a cesarean section delivery of the baby. When the obstetrician performed the cesarean section at 8:42 a.m., the baby was pulseless, motionless, and suffering from severe hypoxia and acidosis. The baby’s cord blood pH was less than 6.8, and her APGAR scores were 0 for twenty minutes. A neonatologist revived the baby after twenty-five minutes of resuscitation efforts. Neonatologists diagnosed the baby with a severe hypoxic-ischemic brain injury soon after birth.

Since all the defendants failed to ever use a continuous electronic fetal heart monitor, there was no hard evidence regarding when the baby’s heart rate and heart rate patterns showed signs of fetal distress. In the Complaint at Law and in the plaintiff’s Rule 213(f)(3) disclosures, we carefully described how multiple deviations from the standard of care over nine hours—in combination—were a proximate cause of the child’s brain injury.

The trial court denied the defense motions based on a doctrine more important than ever in medical negligence cases—the lost chance doctrine.

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