ISMS Advocacy Wins! Illinois Supreme Court Rules Favorably for Doctors

December 1, 2021

ISMS’ advocacy in partnership with the AMA has helped to reverse a ruling that would have set a harmful precedent for Illinois physicians. In the case of Bailey v. Mercy Hospital and Medical Center, the Illinois Supreme Court’s decision struck down a flawed ruling that pertained to jury instructions.

Had the Illinois Supreme Court upheld the First District Appellate Court’s ruling, it would have lowered the burden of proof standards for medical negligence claims. In other words, it would have had a chilling effect on the ability of Illinois physicians to effectively defend themselves at trial.


This past summer, ISMS partnered with the Litigation Center of the American Medical Association in submitting an amicus brief in the case of Bailey v. Mercy Hospital and Medical Center that was pending before the Illinois Supreme Court. This case started when a patient came into the emergency department for treatment, then left the hospital against the recommendations of the healthcare professionals, and later passed away.

During that trial, the Cook County Circuit Court judge denied the plaintiff’s requests for the jury to consider certain instructions on:

  1. Whether there was “lost chance” at a better medical outcome, which would allow the patient to ask for compensation if alleged medical negligence diminished the chance of survival.
  2. Informed consent as applied to the patient’s discharge, which would allow jurors to consider whether the patient was given enough information about what would happen if she went home rather than remain at the hospital and whether the defendants are liable for not performing medical treatment on the plaintiff.

Instead, the Circuit Court gave a shorter instruction on informed consent, and a long-form proximate cause instruction instead of the plaintiff’s requested instruction on loss of chance. At trial, a Circuit Court jury found that four physicians and the hospital were not negligent in their care of the patient. The estate of the woman appealed, and the case went before the First District Appellate Court. That court declined to follow longstanding Illinois precedent and reversed the Circuit Court ’s decision, ruling instead that the plaintiff should be given a new trial so that the jury can be given the two instructions to consider. The defendants then appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed in part the First District Appellate Court’s judgment, and affirmed the Circuit Court’s judgment in its entirety, which was favorable to the healthcare professionals in the case. The Illinois Supreme Court found that a separate instruction on loss of chance was not required, as the jury received instruction on proximate cause. Additionally, the Court rejected the plaintiff’s inverse theory of informed consent, and found the instruction given accurately informed the jury of the plaintiff’s allegations regarding failure to warn regarding the risks of leaving the hospital. Therefore, the plaintiff will not be given a new trial.

ISMS’ advocacy helped to win this court case! Patients and physicians must be able to rely on Illinois courts to follow precedent and sound legal principles.

If you have questions, please contact the ISMS Legal Division by email.

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