Professional Negligence Law Reporter

An Illinois appellate court upheld a jury verdict for the family of a patient who suffered brain damage while waiting to undergo surgery to replace a baclofen pump.

Scott Wilcox, who suffered from paralysis, used a pump to deliver baclofen, a medication used to treat muscle spasms. His pump required replacement, and his physician recommended that he be hospitalized so that he could be monitored for baclofen withdrawal while he awaited the procedure. He developed mental status changes, pain, and blood pressure issues while in the hospital. When his treating neurosurgeon arrived for the procedure a few days later, a pump was not available, and neither was the correct concentration of baclofen. Wilcox suffered respiratory arrest and hypoxia before the procedure and remained on life support until his death approximately two weeks later. His wife, on behalf of his estate, sued the hospital and others, alleging claims for institutional negligence and vicarious liability. Suit charged that, among other things, the hospital had failed to effectuate the timely replacement of Wilcox’s pump and the restoration of his baclofen.

The jury awarded $42.4 million. On appeal, the defense argued that the plaintiff had improperly employed a theory of institutional negligence to impose direct liability on the hospital for what was actually a claim of vicarious liability for the professional negligence of Wilcox’s treating health care providers.

Affirming, the court noted that under an institutional negligence theory, the hospital is the alleged tortfeasor and may be held liable for the failure to review and supervise patient treatment. Here, the court found, the plaintiff supported its institutional negligence claim with the testimony of a physician that a systems failure had occurred at the hospital regarding Wilcox’s treatment and that because of a lack of coordination between hospital departments, the facility had violated national standards of the Joint Commission by, among other things, failing to coordinate timely patient care and treatment based on Wilcox’s needs. The court concluded that the plaintiff had appropriately employed the theory of institutional negligence to impose direct liability on the hospital. The physician’s testimony allowed the jury to conclude that the defendant had violated policies and standards and that such violations were the responsibility of the defendant as an institution, the court reasoned. Rejecting the defense argument that the violations involved health care professionals’ medical judgments, the court found that the plaintiff’s claim focused on the hospital’s alleged failure to comply with the administrative and managerial duties it owed as an institution to enforce and train staff to comply with policies and national standards.

The court also rejected the defense argument that the plaintiff had failed to prove the hospital had prior notice that its policies or standards were being violated. No court has yet imposed such a notice requirement, the court said, adding that a plaintiff is similarly not required to show a systemic problem with a hospital’s policy enforcement for a finding of institutional negligence.

The court nevertheless determined that the evidence at trial was insufficient to establish proximate cause on the vicarious liability claim. Notwithstanding this, the court said that its conclusion did not warrant setting aside or reversing the verdict in that the plaintiff’s institutional negligence count was legally sufficient and supported a finding of proximate cause. The verdict form the jury returned indicated a single damages award against the hospital and specified that the jury had found for the plaintiff on both theories, the court said. Accordingly, the court affirmed the trial court’s judgment.

Citation: Wilcox v. Advocate Condell Med. Ctr., 2024 WL 561935 (Ill. App. Ct. Feb. 13, 2024).

Plaintiff counsel: AAJ members Thomas A. Demetrio, Mitchell W. Bild, and Michael D. Ditore, all of Chicago; and Michael T. Reagan, Ottawa, Ill.