Illinois Court Expands Recoverable Damages
3/20/2008 - The Fifth District of the Appellate Court of Illinois, in the case of Bauer v. Memorial Hospital, decided on November 27, 2007, has greatly expanded recoverable damages under Illinois law. The Bauer decision addressed a medical malpractice action originally tried in the St. Clair County Circuit Court in Belleville, Illinois. The action concerned injuries sustained to an infant. The defendant, in hopes of reducing the amount of damages for future care-taking expenses, put into evidence that the infant's life expectancy had been significantly reduced as a result of the infant's injuries caused by the alleged malpractice. The plaintiff's attorney then asked the judge to submit a jury instruction to the effect that the plaintiff should be entitled to damages for the infant's reduced life expectancy and the judge allowed it. The jury returned a $7.5 million verdict. The Appellate Court of Illinois affirmed, even though the Court pointed out in its decision that there was no prior Illinois case law that specifically allowed recovery for reduced life expectancy damages.
The Appellate Court's decision in Bauer greatly expands the dmages recoverable under Illinois law for plaintiffs because the decision allows recovery for a new category of damages. In future cases, we anticipate that plantiffs' attorneys will try to apply this holding to wrongful death cases as well.
In wrongful death cases, the Illinois Wrongful Death Statute allows recovery by the surviving next of kin for the losses that they have suffered as a result of their relative's death. An example would be the loss of financial support. There is also a statute, called the Survival Act, which allows the decedent's estate to recovery for the injuries that the decedent suffered before death. This statute, 755 ILCS 5/27-6, allows "actions to recover damages for an injury by a person." In other words, any injury suffered by the decedent can be recovered by the estate after the death.
Under prior law, if the accident caused instantaneous death, there was generally no cause of action available except for the next of kin's wrongful death action. We now expect that plaintiffs will argue in wrongful death cases that there should be damages awarded to the estate for the decedent's loss of life under the Survival Act based on the decedent's normal life expectancy had the accident that caused the death not occurred. This award will be in addition to the amount of damages awarded to the next of kin for their own losses.
If Illinois law evolves in this manner, this change in the law will greatly increase the value of wrongful death cases (as well as ones where the plaintiff's life expectancy has been decreased due to the accident). Under such circumstances, there will be no limitation on the amounts that could be awarded.
We will keep you posted on the progress of the Bauer case. We anticipate the defendant will petition the Illinois Supreme Court to review the Appellate Court's decision. In light of the issue's novelty and its significance to the legal community, we expect the Illinois Supreme Court to take the case.