Illinois Appellate Court Affirms $20 Million Verdict in Birth Injury Lawsuit

A 2022 Cook County, Ill., jury verdict was returned in favor of the child and family for $20 million against Advocate Health & Hospitals and its employees. The trial judge then later awarded more than $885,000 in prejudgment interest to the plaintiffs.

A panel of the First District Appellate Court ruled that Advocate Health was not denied a fair trial and that the trial judge correctly awarded the $885,000 in prejudgment interest to the plaintiffs.

The gist of the appeal was that concerning Illinois Pattern Jury Instruction (IPI) Civil No. 15.01 claiming that it failed to provide instruction on sole proximate cause and was incorrectly used at the trial level.

Justice LeRoy K. Martin Jr. delivered the judgment of the court with the opinion.

Bonita Johnson and Fifth Third Bank sued Advocate Health & Hospitals Corp. and several of its physicians and nurses on behalf of Johnson’s son, Anthony Harris.

Harris, who was born in 2014, was diagnosed with neonatal encephalopathy after allegedly being deprived of oxygen for 45 minutes while Johnson was in labor.

Young Harris experienced a fluctuating heart rate while his mother was in labor. The Cesarean delivery was delayed while waiting for Johnson’s obstetrician, who was traveling to Advocate Christ Hospital and Medical Center of Oak Lawn.

The obstetrician was found not liable for the injuries and is not a party to the appeal.

The lawsuit was filed in 2016 and proceeded to a jury trial. The Johnson family argued that Harris’s injuries were caused by the lack of oxygen to the brain, while Advocate claimed they were caused by fetal growth restriction (FGR), which occurred during his gestation.

Both parties to the lawsuit tendered jury instructions regarding proximate cause. The plaintiffs tendered IPI Civil No. 15.01, which defines proximate cause as, “A cause that, in the natural or ordinary course of events, produced the plaintiff’s injury.” Their instruction concluded with the sentence, “However, if you decide that the defendants conduct was not a proximate cause of the plaintiffs’ injury, then your verdict should be for the defendants.”

Conversely, Advocate tendered a modified version of IPI Civil No. 15.01. Its instruction ended with “However, if you decide that the sole proximate cause of the injury to plaintiffs was something else or the conduct of someone else other than defendants, then your verdict should be for the defendants.”

Advocate objected to the plaintiffs’ instructions and requested that the judge use its version, which was denied.

Further, Advocate’s counsel also attempted to negotiate a high-low offer of $6 million and $20 million, which the plaintiffs’ counsel rejected.

After the entry of the $20 million jury verdict, Advocate filed a motion for a new trial in 2022, which was denied. It then appealed in 2023.

In the panel’s opinion, it found that the trial judge incorrectly refused to give a modified jury instruction on the issue of proximate cause and wrote that IPI Civil No. 15.01 was insufficient to instruct the jury on the issue.

It was noted that IPI Civil No. 15.01, which was revised in 2021, does not provide an instruction related to sole proximate cause.

“Here, Advocate presented evidence by way of expert testimony that [Harris’] injuries were caused solely by FGR. Therefore, Advocate was entitled to an instruction on sole proximate cause. Revised IPI Civil No. 15.01 did not suffice, as it does not state the sole proximate cause defense.”

In the appellate court’s opinion, Advocate was not seriously prejudiced by the trial judge’s refusal to give the modified jury instruction and noted that “the parties made it clear to the jury that causation was a pivotal issue in the case.”

Additionally, the appellate court affirmed the award of prejudgment interest. It was also found that Advocate’s high-low proposal was not a settlement offer within the meaning of prejudgment interest statute, which 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.

“Accordingly, a high-low agreement still requires that a case proceed to trial and a verdict be reached. The arrangement cannot reduce the cost of delays or the burden on court dockets, which the legislature sought to alleviate with a prejudgment interest statute. Thus, we, the appellate court conclude the legislator did not intend for a high-low proposal to qualify as a settlement offer for purposes of the prejudgment interest statute.”

Accordingly, the trial court’s $20 million verdict and prejudgment interest are affirmed.

Johnson v. Advocate Health & Hospitals Corp., 2025 IL App (1st) 230087.

Kreisman Law Offices has been handling birth trauma injury lawsuits, medical malpractice cases, nursing home abuse lawsuits and wrongful death cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 49 years in and around Chicago, Cook County and its surrounding areas, including Cicero, Forest Park, Melrose Park, Park Forest, Crestwood, Western Springs, Northlake, Rosemont, Park Ridge, Prospect Heights, Rolling Meadows, Palatine, Wheeling, Vernon Hills, Lake Bluff, Chicago (Jefferson Park, Lincoln Square, West Ridge, Lakeview, Logan Square, Hermosa, West Town, River North, Near Northside, South Loop, Back of the Yards, Englewood, Avondale, Brighton Park, Auburn Gresham, Calumet Heights), Oak Lawn, Hickory Hills, Chicago Ridge, Blue Island, Dolton and Oakbrook Terrace, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.