Docket No. 91517–Agenda 22–January 2002.

DIANE DILLON, Appellee, v. EVANSTON HOSPITAL et  								al., Appellants.

	JUSTICE FREEMAN delivered the opinion of the court:

	Plaintiff, Diane Dillon, brought a medical malpractice action

in the circuit court of Cook County against, inter alios, Evanston Hospital (hereafter hospital) and Dr. Stephen Sener. A jury found

against these particular defendants and in favor of plaintiff. The

appellate court affirmed. No. 1–98–2893 (unpublished order under

Supreme Court Rule 23). We allowed the hospital and Dr. Sener’s

petition for leave to appeal (177 Ill. 2d R. 315(a)). We now affirm

the judgments below in part and reverse in part, and remand the

cause to the trial court for a new trial solely on the issue of

damages for the increased risk of future injury.

BACKGROUND

	During the course of treatment for breast cancer, Dr. Sener

surgically inserted a catheter into a vein in plaintiff’s upper chest

under the clavicle. He performed the insertion on April 20, 1989.

The purpose of the catheter was to provide a means to administer

chemotherapy and to draw blood without repeatedly inserting

needles into plaintiff’s veins. The catheter inserted into plaintiff was

approximately 16 centimeters long.

	After plaintiff completed chemotherapy, the catheter ceased to

function, and on July 13, 1990, Dr. Sener removed it. However,

unbeknownst to plaintiff–or Dr. Sener–the catheter was not

removed in its entirety. Rather, Dr. Sener removed only a seven-

centimeter portion of the catheter. A nine-centimeter catheter

fragment remained in plaintiff. She was not informed of any

abnormality despite the fact that she had a chest X ray taken at the

hospital in December 1990.

	In December 1991, plaintiff had a routine chest X ray taken at

a different hospital. The X ray revealed that the catheter fragment

had migrated to plaintiff’s heart. The tip of the fragment is embedded in the wall of the right atrium or the right ventricle. The

rest of the fragment is floating free in plaintiff’s heart.

	Upon learning that the fragment was in her heart, plaintiff met

with Dr. Sener. He could not recall his specific actions in removing

the catheter from plaintiff. However, he acknowledged that the

fragment was in her heart. Based on the length of time that the

fragment had been there, Dr. Sener recommended that plaintiff not

attempt to remove it because several risks were attendant to

removal. For example, all or part of the fragment could escape and

travel further into the heart, making retrieval more difficult, or

removal could tear the heart wall. Dr. Sener opined that it would

be more dangerous to attempt to remove the catheter fragment

than it would be to leave it in place.

	Plaintiff sought opinions from other physicians; all but one

agreed with Dr. Sener. Based on the majority of medical opinion

she received, plaintiff decided to leave the catheter fragment in her

heart.

	Plaintiff filed a complaint for medical malpractice against Dr.

Sener, Dr. David Lim, who assisted in the insertion, the hospital,

and the catheter’s manufacturer, Davol, Inc., a division of Bard,

Inc. (hereafter Davol). After the completion of pretrial

proceedings, the trial court entered summary judgment in favor of

Dr. Lim. Trial commenced on plaintiff’s fifth amended complaint,

which named as additional defendants radiologist Dr. Ronald Port

and nurse Kathy Henderson.

	At the close of a trial, the jury found in favor of plaintiff and

against Dr. Sener and the hospital. However, the jury found in

favor of the remaining defendants. Dr. Sener and the hospital did

not present the jury with any special interrogatories to determine

on which basis the jury found defendants to have been negligent.

The jury awarded plaintiff $1.5 million for past pain and suffering,

$1.5 million for future pain and suffering, and $500,000 for the

increased risk of future injuries. Plaintiff had not sought

compensation for past or future medical expenses. Dr. Sener and

the hospital appealed.

	The appellate court affirmed, with one justice dissenting. No.

1–98–2893 (unpublished order under Supreme Court Rule 23). Dr. Sener and the hospital appeal. Additional pertinent facts will be

discussed in the context of the issues raised in this appeal.

DISCUSSION

I. Fifth Amended Complaint: Negligent Insertion

	Dr. Sener and the hospital first contend that plaintiff’s fifth

amended complaint was untimely.

	Plaintiff filed her original complaint on July 1, 1992. Count I

alleged that the hospital was negligent in (1) allowing the catheter

to be removed in a way that caused a portion to remain in plaintiff,

(2) failing to advise plaintiff of the fact that a portion of the

catheter remained in her, and (3) providing a defective catheter. In

count II, plaintiff alleged that Dr. Sener failed to remove the

catheter. Similarly, in count III, plaintiff alleged that Dr. Sener’s

actions in not removing the entire catheter were negligent. Notably,

the original complaint contained no allegations against Dr. Sener

or the hospital that the insertion of the catheter was negligent.

	Plaintiff attached to the original complaint a report of a

reviewing health professional. The report stated that the cause of

action was meritorious because, inter alia, the catheter was improperly placed.

	On April 19, 1993, plaintiff filed a second amended complaint

adding a count against Dr. Lim, which alleged that he assisted in

plaintiff’s surgery and that he negligently inserted the catheter. On

March 21, 1995, the trial court granted him summary judgment.

	Plaintiff continued to amend her original complaint throughout

the pretrial proceedings as discovery was being conducted. In

January 1994, Davol answered plaintiff’s fourth amended

complaint. Davol asserted the affirmative defense that plaintiff’s

injuries were proximately caused by the intervening and

superceding negligent acts as described in the reports of reviewing

health professionals attached to the fourth amended complaint. One

of those reports stated in part that the catheter had been improperly

placed. On September 6, 1996, plaintiff filed answers to

supplemental interrogatories regarding her expert witness, Dr.

Michael Blank. Dr. Blank had a new opinion after reviewing the

interrogatory answers of Davol, which disclosed opinions critical of the catheter’s insertion. According to Dr. Blank, if Dr. Sener

had inserted the catheter in the manner Davol asserted, then Dr.

Blank believed that Dr. Sener had deviated from the standard of

care in inserting the catheter, which ultimately resulted in the

catheter’s fracture. On November 6, 1996, in supplemental answers

to interrogatories, plaintiff disclosed that Dr. Blank might opine,

based on his review of the X rays, that Dr. Sener negligently

inserted the catheter in an improper location that ultimately

resulted in the catheter’s fracture.

	In May 1997, Davol disclosed that Dr. Paul Goldfarb would

testify to his opinion that the catheter was improperly inserted,

causing it to fracture as the result of repeated compression by the

clavicle as the catheter passed over the first rib.

	On November 17, 1997, plaintiff moved to file her fifth

amended complaint adding allegations that the catheter was

improperly inserted. The trial court allowed plaintiff leave to file

because the removal of the catheter was, according to the court, “a

completion of the same process” as the insertion. Plaintiff alleged

as follows. Counts I and II alleged that Dr. Sener and the hospital

negligently inspected, inserted, and removed the catheter; failed to

ascertain that the catheter fragment remained in plaintiff; and failed

to advise plaintiff that the fragment remained in her body. Count III

alleged that Dr. Sener’s actions should be considered negligent

under the theory of res ipsa loquitur. Count IV alleged that Davol negligently designed and manufactured the catheter; count V

alleged that Dr. Port failed to see the catheter fragment in the

December 1990 X ray; and count VI alleged that nurse Henderson

improperly maintained the catheter after its insertion in plaintiff.

Jury selection began the next day.

	Dr. Sener and the hospital contend that the trial court abused

its discretion in allowing plaintiff to file her fifth amended

complaint, containing the allegations of negligent insertion, because

it was not timely. In essence, they believe that plaintiff had ample

knowledge from the outset of the litigation that Dr. Sener inserted

the catheter and improperly waited until the eve of trial to officially

allege negligence regarding the catheter’s insertion. Plaintiff

responds that Dr. Sener and the hospital cannot complain because

plaintiff presented several theories of negligence, the jury returned a general verdict against them on the negligence claim, and they

failed to submit a special interrogatory on any matter. Dr. Sener

and the hospital in turn reply that we may not consider plaintiff’s

defense because she did not raise it in the appellate court.

	We may consider plaintiff’s defense of the trial court’s

judgment. An appellee in the appellate court may raise a ground in

this court which was not presented to the appellate court in order

to sustain the judgment of the trial court, as long as there is a

factual basis for it. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 502 (1988); Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 209 (1983).

	Count I of the fifth amended complaint alleged several theories

of negligence in addition to the theory of which Dr. Sener and the

hospital complain, i.e., negligent insertion. They have not challenged the sufficiency of the evidence on any of those other

theories. Also, the jury returned a general verdict against them on

the negligence claim. Section 2–1201(d) of the Code of Civil

Procedure provides in pertinent part:

			“If several grounds of recovery are pleaded in support

of the same claim, whether in the same or different counts,

an entire verdict rendered for that claim shall not be set

aside or reversed for the reason that any ground is

defective, if one or more of the grounds is sufficient to

sustain the verdict ***.” 735 ILCS 5/2–1201(d) (West

2000).

Because Dr. Sener and the hospital did not submit special

interrogatories, there is no way of knowing on what theory the jury

found defendants negligent. “When there is a general verdict and

more than one theory is presented, the verdict will be upheld if

there was sufficient evidence to sustain either theory, and the

defendant, having failed to request special interrogatories, cannot

complain.” Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987). We 

shall not set aside the verdict based on this contention.

II. Res Ipsa Loquitur

	Dr. Sener and the hospital next contend that the trial court

erred in instructing the jury on plaintiff’s theory of res ipsa loquitur against Dr. Sener. As with the prior contention, plaintiff defends

the judgment by pointing to the jury verdict. The verdict form

shows that the jury returned separate verdicts in favor of plaintiff

against Dr. Sener on both negligence and res ipsa loquitur. Because the evidence supports the verdict based on negligence, we

shall not set aside the verdict based on this contention. See Miller v. DeWitt, 37 Ill. 2d 273, 286-87 (1967); 735 ILCS 5/2–1201(d) (West 2000).

III. Admission of Videotape

	Dr. Sener and the hospital contend that the trial court erred in

allowing the jury to view a videotape depicting a bacterial infection

in the heart that spread to the brain. The appellate court concluded

that the trial court’s ruling was not an abuse of discretion.

	Dr. Sener and the hospital bring this assignment of error to

this court. However, their three-paragraph argument does not

contain any authority. Supreme Court Rule 341(e)(7) provides that

a litigant’s brief must contain citations to the relevant authority

supporting the argument on appeal. 188 Ill. 2d R. 341(e)(7). “A

court of review is entitled to have the issues clearly defined and to

be cited pertinent authority. A point not argued or supported by

citation to relevant authority fails to satisfy the requirements of

Rule 341(e)(7).” Canteen Corp. v. Department of Revenue, 123 Ill. 2d 95, 111-12 (1988); accord Kelley v. Kelley, 317 Ill. 104, 107 (1925). Although we could, in light of the violation of Rule

341(e)(7), consider this matter waived, we instead will exercise our

discretion in this matter and address the issue on the merits since

we can discern the question sought to be resolved. See People ex rel. Carter v. Touchette, 5 Ill. 2d 303, 305 (1955); People v. Jung, 192 Ill. 2d 1, 12-13 (2000) (Freeman, J., specially concurring,

joined by Miller and McMorrow, JJ.); Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253, 256 (1993).

	After reviewing the record, we hold that the trial court did not

abuse its discretion by admitting the videotape as demonstrative

evidence. Dr. David Snydman, qualified and board certified in

infectious diseases, testified that the video animation would be

helpful in explaining to the jury the general development of endocarditis, a condition for which plaintiff is now at risk. He

clearly and specifically explained the relevant differences between

the type and location of infection depicted in the videotape and the

infection that plaintiff may suffer in the future, owing to the

presence of the catheter fragment. Further, Dr. Sener and the

hospital had the right and the opportunity to cross-examine Dr.

Snydman so as to assure that the videotape could not have misled

or confused the jury.

IV. Exclusion of Cumulative Testimony

	Dr. Sener and the hospital next contend that the trial court

erred in excluding as cumulative the testimony of one of their

experts, Dr. John Raaf. The record shows that during the court’s

consideration of motions in limine, the court discussed generally the problem of cumulative testimony and informed counsel for both

sides that the court would not entertain cumulative medical

testimony and would sustain objections to such testimony.

	Dr. Richard Vasquez testified as an expert on behalf of

defendants. Dr. Vasquez opined that Dr. Sener had met the

medically relevant standard of care.

	Dr. Sener and the hospital then called Dr. Raaf as an expert.

After listening to the equivalent of approximately 20 record pages

of testimony, the trial court called a sidebar to express concern

regarding Dr. Raaf’s testimony. The court stated that if Dr. Raaf

was about to testify regarding the medical standard of care, then

that testimony would be cumulative. Defense counsel stated that

Dr. Raaf’s testimony would go to the medical standard of care.

Defense counsel declined to make an offer of proof as to other

matters to which Dr. Raaf could testify. The court excused Dr.

Raaf and told the jury:

			“THE COURT: Folks, after talking with the lawyers, I

have–I have determined that the last witness, Dr. Raaf, his

testimony was going to be on similar topics to those we

have covered.

			So I’ve decided it would be more efficient on use of

your time if we move on to another topic, okay?

			THE JURY: Thank you.”

The appellate court found no abuse of discretion.

	Initially, we note plaintiff’s argument, in defense of the

judgment, that we are precluded from reviewing this contention

because Dr. Sener and the hospital failed to make an offer of proof.

When a trial court excludes evidence, no appealable issue remains

unless a formal offer of proof is made. The failure to do so results

in a waiver of the issue on appeal. The purpose of an offer of proof

is to inform the trial court, opposing counsel, and a reviewing court

of the nature and substance of the evidence sought to be

introduced. However, an offer of proof is not required where it is

apparent that the trial court clearly understood the nature and

character of the evidence sought to be introduced. People v. Peeples, 155 Ill. 2d 422, 457-58 (1993); see also In re A.M., 274 Ill. App. 3d 702, 709 (1995); M. Graham, Cleary & Graham’s

Handbook of Illinois Evidence §103.7, at 23-24 (7th ed. 1999). In

this case, an offer of proof was not required because the trial court

understood that Dr. Raaf would testify as to the medical standard

of care. See First National Bank of Mount Prospect v. Village of Mount Prospect, 197 Ill. App. 3d 855, 864-65 (1990) (offer of proof unnecessary where expert’s opinion testimony was obvious).

	Turning to the merits, the exclusion of cumulative evidence is

within the discretion of the trial court, whose ruling will not be

reversed absent a clear abuse of that discretion. Kozasa v. Guardian Electric Manufacturing Co., 99 Ill. App. 3d 669, 678 (1981) (collecting cases). This discretion includes limiting the

number of expert witnesses. See Yassin v. Certified Grocers of Illinois, 150 Ill. App. 3d 1052, 1061 (1986); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §403.1, at 192 (7th ed.

1999).

	Dr. Sener and the hospital note that plaintiff and Davol were

allowed to present several expert witnesses to criticize various

aspects of Dr. Sener’s conduct, while he and the hospital could

present only one. They posit: “It is common knowledge that in

medical malpractice cases, each side presents two or three expert

witnesses to support the conduct or criticize the conduct of the

Defendant.” They assert that “[t]he abuse of discretion in this case

is the uneven treatment of the parties.”

	We cannot accept this contention. As in the appellate court,

Dr. Sener and the hospital do not indicate how the evidence that

Dr. Raaf would have presented, i.e., his opinion that Dr. Sener had met the medically relevant standard of care, was not cumulative to

the testimony of Dr. Vasquez. Nor have they shown that the expert

testimony that plaintiff and Davol presented was in any way

cumulative. Further, Dr. Sener and the hospital presented several

experts and treating physicians, who testified on various aspects of

the case for the defense. We uphold the ruling of the trial court.

V. Damages: Increased Risk of Future Injury

	Dr. Sener and the hospital next contend that the trial court

erred in instructing the jury that it could award plaintiff damages

for “[t]he increased risk of future injuries.” Plaintiff’s argument to

the contrary notwithstanding, we note that this issue was

adequately preserved for appellate review.

	There was evidence presented at trial establishing the

proximate causal connection between the actions of Dr. Sener and

the hospital and the catheter fragment becoming embedded in

plaintiff’s heart. On medical advice, plaintiff chose not to attempt

removal of the fragment. All the expert witnesses but one believed

that the risks of injury from an attempted removal of the fragment

outweighed the risks that would exist if the catheter remained in

the heart. The attendant risks of the catheter remaining were

infection, perforation of the heart, arrhythmia, embolization, and

further migration of the fragment. At the time of trial, plaintiff had

not suffered from any of these conditions, although she did suffer

from anxiety over the fragment’s presence.

	The evidence was that it was not reasonably certain that

plaintiff would in the future suffer the injuries for which she was at

risk due to the fragment’s presence in her heart. Several physicians

testified about the risk of infection, with the lowest estimated risk

being close to zero and the highest being 20%. The risk of

arrhythmia was less than 5%. The risks of perforation and

migration were also small. The risk of embolization was low to

nonexistent.

	The jury instruction that addressed compensation for plaintiff’s

increased risks stated in relevant part:

			“If you decide for the plaintiff on the question of

liability, you must then fix the amount of money which will

reasonably and fairly compensate her for any of the

following elements of damages proved by the evidence to

have resulted from the negligence of one or more of the

defendants, taking into consideration the nature, extent,

and duration of the injury:

			The increased risk of future injuries.

			The pain and suffering experienced and reasonably

certain to be experienced in the future as a result of the

injuries.” (Emphasis added.)

This instruction was a modified combination of Illinois Pattern Jury

Instructions, Civil, No. 30.01 and No. 30.05 (3d ed. 1995). The

modification was the addition of the italicized sentence on the

increased risk of future injuries. There is no Illinois pattern jury

instruction for that element of damages.

	The jury awarded plaintiff $500,000 for her increased risk of

future injuries. The appellate court upheld the award, holding that

the trial court did not err in instructing the jury that plaintiff could

be compensated for the increased risk of future harm.

	This court has historically rejected assessing damages for

future injuries. This court has explained: “It would be plainly unjust

to require a defendant to pay damages for results that may or may

not ensue and that are merely problematical. To justify a recovery

for future damages the law requires proof of a reasonable certainty

that they will be endured in the future.” Amann v. Chicago Consolidated Traction Co., 243 Ill. 263, 267 (1909). In 1922, this court reiterated this position in Stevens v. Illinois Central R.R. Co., 306 Ill. 370, 377 (1922).

	Based on the principles noted in Amann and Stevens, some panels of our appellate court have denied recovery for an increased

risk of future injury that is not reasonably certain to occur. See,

e.g., Wehmeier v. UNR Industries, Inc., 213 Ill. App. 3d 6, 33-34 (1991). However, other panels of our appellate court have allowed

compensation for an increased risk of future injury, notwithstanding the improbability of the injury’s occurrence. See, e.g., Jeffers v. Weinger, 132 Ill. App. 3d 877, 884 (1985) (finding “that whether there is a 1% possibility [of plaintiff losing her foot]

or a 99% possibility, each is an element of damage which should be

considered by the jury”). The rationale of those decisions allowing

recovery is that “the increased risk is itself a present injury which

should be as compensable as any other present injury.” Anderson v. Golden, 279 Ill. App. 3d 398, 400 (1996); accord Harp v. Illinois Central Gulf R.R. Co., 55 Ill. App. 3d 822, 827 (1977). In light of the above, a divergence of authority exists in Illinois

whether a plaintiff may recover damages for the increased risk of

future injuries.

	Cases such as Stevens and Amann and the decisions of our appellate court which adhere to them represent the majority view:

			“The traditional American rule *** is that recovery of

damages based on future consequences may be had only

if such consequences are ‘reasonably certain.’ Recovery of

damages for speculative or conjectural future

consequences is not permitted. To meet the ‘reasonably

certain’ standard, courts have generally required plaintiffs

to prove that it is more likely than not (a greater than 50%

chance) that the projected consequence will occur. If such

proof is made, the alleged future effect may be treated as

certain to happen and the injured party may be awarded

full compensation for it; if the proof does not establish a

greater than 50% chance, the injured party’s award must

be limited to damages for harm already manifest.” Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C. Cir. 1982).

Accord 2 D. Dobbs, Remedies §8.1(7), at 407 (2d ed. 1993); J.

King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale  L.J. 1353, 1370-72 (1981); Note, Damages Contingent Upon Chance, 18 Rutgers L. Rev. 875, 876 (1964) (all-or-nothing approach “is the majority rule in the United States”). As one court

has explained: “In evaluating damages in a tort action, a trier is

concerned with reasonable probabilities, not with possibilities.” Healy v. White, 173 Conn. 438, 443, 378 A.2d 540, 544 (1977), overruled, Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990). “[A] consequence of an injury which is possible, which

may possibly ensue, is a risk which the injured person must bear

because the law cannot be administered so as to do reasonably

efficient justice if conjecture and speculation are to be used as a

measure of damages. On the other hand, a consequence which

stands on the plane of reasonable probability, although it is not

certain to occur, may be considered in the evaluation of the

damage claim against the defendant. In this way, to the extent that

men can achieve justice through general rules, a just balance of the

warring interests is accomplished.” Budden v. Goldstein, 43 N.J. Super. 340, 347, 128 A.2d 730, 734 (1957).

	Not all jurisdictions follow the majority rule. For example, in Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), the Supreme Court of Connecticut provided an analysis that revealed

the problems inherent with the majority approach. That court

criticized the “all-or-nothing” approach as follows:

		“In essence, if a plaintiff can prove that there exists a 51

percent chance that his injury is permanent or that future

injury will result, he may receive full compensation for that

injury as if it were a certainty. If, however, the plaintiff

establishes only a 49 percent chance of such a

consequence, he may recover nothing for the risk to which

he is presently exposed. Although this all or nothing view

has been adopted by a majority of courts faced with the

issue, the concept has been severely criticized by

numerous commentators. By denying any compensation

unless a plaintiff proves that a future consequence is more

likely to occur than not, courts have created a system in

which a significant number of persons receive

compensation for future consequences that never occur

and, conversely, a significant number of persons receive

no compensation at all for consequences that later ensue

from risks not rising to the level of probability. This

system is inconsistent with the goal of compensating tort

victims fairly for all the consequences of the injuries they have sustained, while avoiding, so far as possible, windfall

awards for consequences that never happen.” Petriello, 215 Conn. at 393-94, 576 A.2d at 482-83.

Accord DePass v. United States, 721 F.2d 203, 208 (7th Cir. 1983) (Posner, J., dissenting) (“A tortfeasor should not get off

scot-free because instead of killing his victim outright he inflicts an

injury that is likely though not certain to shorten the victim’s life”);

90 Yale L.J. at 1376-81 (criticizing all-or-nothing approach as

arbitrary); 2 G. Boston, Stein on Personal Injury Damages §9:16,

at 9–31 through 9–32 (3d ed. 1997) (same). 

	We believe that the split of authority in our appellate court

compels us to revisit this issue and reexamine our holdings in

Amann and Stevens. Our review of cases from other jurisdictions indicates a trend toward allowing compensation for increased risk

of future injury as long as it can be shown to a reasonable degree

of certainty that the defendant’s wrongdoing created the increased

risk. Anderson, 279 Ill. App. 3d at 400 (citing cases); see also United States v. Anderson, 669 A.2d 73 (Del. 1995); 2 J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions

§13.02 (2001); 2 G. Boston, Stein on Personal Injury Damages

§9:16, at 9–30 (3d ed. 1997) (“Compensation should be given for

the fact of increased susceptibility”). This reasoning shows that

“[t]he primary motivation of the courts for permitting damages for

such an injury is fairness.” 2 J. Nates, C. Kimball, D. Axelrod & R.

Goldstein, Damages in Tort Actions §13.02, at 13–8 (2001).

Further, based on the principle of single recovery, “[o]ur legal

system provides no opportunity for a second look at a damage

award so that it may be revised with the benefit of hindsight.”

Petriello, 215 Conn. at 395, 576 A.2d at 483. 

	Based on this reasoning, the appellate court in this case relied

on the appellate court’s decision in Anderson. There, the court stated that where a defendant’s negligence causes a plaintiff to

suffer a present injury, the plaintiff is entitled to compensation for

the full extent of the injury. If a defendant’s negligence places a

plaintiff at greater risk of sustaining future injuries than if the

negligence had not occurred, the appellate court saw “ ‘no

legitimate reason why [the plaintiff] should not receive present compensation based upon the likelihood of the risk becoming a

reality.’ ” Anderson, 279 Ill. App. 3d at 401, quoting Petriello, 215 Conn. at 396, 576 A.2d at 483. The Anderson court held that a plaintiff who has competent evidence which shows that a defendant

has negligently caused her to bear the burden of an increased risk

of future injury may present evidence of the increased risk as an

element of present damages.

	The Anderson court further noted that the treatment of an increased risk of future injury as a present injury does not run afoul

of the general rule that possible future damages are not

compensable absent evidence that such damages are reasonably

certain to occur. The court reasoned that this rule stems from the

principle that damages may not be awarded on the basis of

speculation or conjecture. An award of damages for an increased

risk of future injury is proper only if it can be shown to a

reasonable degree of certainty that the risk was proximately caused

by the defendant’s negligence. Therefore, there is no element of

speculation or conjecture in awarding damages for increased risks. Anderson, 279 Ill. App. 3d at 400-01.

	Like the court in Anderson, we also believe that the Connecticut court’s approach to this issue better comports with

this state’s principle of single recovery. An entire claim arising

from a single tort cannot be divided and be the subject of several

actions, regardless of whether or not the plaintiff has recovered all

that he or she might have recovered. This is true even as to

prospective damages. There cannot be successive actions brought

for a single tort as damages in the future are suffered, but the one

action must embrace prospective as well as accrued damages. Mason v. Parker, 295 Ill. App. 3d 1096, 1098 (1998), quoting Radosta v. Chrysler Corp., 110 Ill. App. 3d 1066, 1068-69 (1982); accord 1 D. Dobbs, Remedies §3.1, at 277-78 (2d ed. 1993) (“The

damages remedy is not conditional, and it is not payable

periodically as loss accrues unless a statute so provides. So the

damages award is traditionally made once, in a lump sum to

compensate for all the relevant injuries, past and future”). Indeed,

this court long ago so held in the specific context of a medical

malpractice action. See Howell v. Goodrich, 69 Ill. 556, 559-60 (1873) (“For such a cause of action *** there can not be

successive suits brought from time to time, as damages may in the

future be suffered, but the recovery is once for all, and may

embrace prospective as well as accrued damages”).

	The single recovery principle requires that all damages, future

as well as past, must be presented and considered at the time of

trial. “This in turn faces the tribunal with the difficult and uncertain

task of prophecy, with no chance for second-guessing where the

prophecy turns out to be mistaken, or where the parties have failed

to present all items of their claims.” 4 F. Harper, F. James, & O.

Gray, Torts §25.2, at 498 (2d ed. 1986).

	Also, this court has previously held in a different context:

			“There is nothing novel about requiring health care

professionals to compensate patients who are negligently

injured while in their care. To the extent a plaintiff’s

chance of recovery or survival is lessened by the

malpractice, he or she should be able to present evidence

to a jury that the defendant’s malpractice, to a reasonable

degree of medical certainty, proximately caused the

increased risk of harm or lost chance of recovery. We

therefore reject the reasoning of cases which hold, as a

matter of law, that plaintiffs may not recover for medical

malpractice injuries if they are unable to prove that they

would have enjoyed a greater than 50% chance of survival

or recovery absent the alleged malpractice of the

defendant. [Citations.] To hold otherwise would free

health care providers from legal responsibility for even the

grossest acts of negligence, as long as the patient upon

whom the malpractice was performed already suffered an

illness or injury that could be quantified by experts as

affording that patient less than a 50% chance of recovering

his or her health.” Holton v. Memorial Hospital, 176 Ill. 2d 95, 119 (1997).

The theories of lost chance of recovery and increased risk of future

injury have similar theoretical underpinnings. See Anderson, 669 A.2d at 75-76; 2 D. Dobbs, Remedies §8.1(7), at 408 (2d ed.

1993).

	We realize that our decision to recognize damages for the

increased risk of future injury is at odds with our previous holdings

in Stevens and Amann. However, we note that those cases are over 80 years old, and that scientific advances now enable the medical

community to more accurately determine the probability of future

injuries than in the past. The risk therefore of undue speculation is

lessened. We further note that the split in our appellate court has

caused mixed results in cases such as this, where some parties

recovered compensation, while others did not. Fairness requires

that this court speak to this issue definitively. Having reviewed all

of the authorities on this issue, we believe our decision will provide

needed stability in this matter for the bench and the bar.

	Accordingly, we hold simply that a plaintiff must be permitted

to recover for all demonstrated injuries. The burden is on the plaintiff to prove that the defendant’s negligence increased the

plaintiff’s risk of future injuries. A plaintiff can obtain

compensation for a future injury that is not reasonably certain to

occur, but the compensation would reflect the low probability of

occurrence. See Feist v. Sears, Roebuck & Co., 267 Or. 402, 410, 517 P.2d 675, 679 (1973) (“ ‘Admittedly the probability of

[plaintiff] getting epileptic seizures is low and it should be weighed

by the jury accordingly’ ”), quoting Schwegel v. Goldberg, 209 Pa. Super. 280, 287-88, 228 A.2d 405, 409 (1967). This “fits

comfortably within traditional damage calculation methods.”

Anderson, 669 A.2d at 78, citing Petriello, 215 Conn. at 397-98, 576 A.2d at 484; accord 2 G. Boston, Stein on Personal Injury

Damages §9:16, at 9–30 through 9–31 (3d ed. 1997) (stating that

the solution is not in denying recovery, but in “letting the jury

determine on a common sense basis the amount of damages which

will reasonably compensate the plaintiff”). “The defendant’s proper

remedy lies in objecting to the excessiveness of the verdict in an

appropriate case.” 2 J. Nates, C. Kimball, D. Axelrod & R.

Goldstein, Damages in Tort Actions §13.02, at 13–9 (2001).

	Having determined that this element of damages is

compensable, we now consider whether the jury was properly

instructed thereon. The record shows that Dr. Sener and the

hospital failed to object with specificity to the form of the instruction and to offer their own versions thereof. Accordingly,

we could consider this issue waived for appellate review. See 155

Ill. 2d R. 366(b)(2)(i); Deal v. Byford, 127 Ill. 2d 192, 203 (1989).

	However, the waiver rule is a principle of administrative

convenience, an admonition to the parties; it is not a jurisdictional

requirement or any limitation upon the jurisdiction of a reviewing

court. In this regard, this court has recognized that a reviewing

court may, in furtherance of its responsibility to provide a just

result and to maintain a sound and uniform body of precedent,

override considerations of waiver that stem from the adversarial

nature of our system. In re C.R.H., 163 Ill. 2d 263, 274 (1994); Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967); accord 155 Ill. 2d R. 366(a)(5). In this case, for reasons which we will explain, we deem

that this responsibility outweighs the waiver by Dr. Sener and the

hospital. See, e.g., Welch v. Johnson, 147 Ill. 2d 40, 48 (1992); American Federation of State, County & Municipal Employees, Counsecil 31 v. County of Cook, 145 Ill. 2d 475, 480 (1991).

	In Illinois, the parties are entitled to have the jury instructed on

the issues presented, the principles of law to be applied, and the

necessary facts to be proved to support its verdict. The decision to

give or deny an instruction is within the trial court’s discretion. The

standard for determining an abuse of discretion is whether, taken

as a whole, the instructions are sufficiently clear so as not to

mislead and whether they fairly and correctly state the law. See

Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 388 (2000); accord Korpalski v. Lyman, 114 Ill. App. 3d 563, 568 (1983).

	In this case, there is no pattern jury instruction on the

increased risk of future injury as an element of damages.

Accordingly, this is a situation where our pattern instructions are

inadequate and additional instruction is appropriate. See Balestri v. Terminal Freight Cooperative Ass’n, 76 Ill. 2d 451, 454-55 (1979). Under Supreme Court Rule 239(a) (177 Ill. 2d R. 239(a)),

a nonpattern instruction is permissible if it is simple, brief,

impartial, and nonargumentative. Where a unique factual situation,

or a point of law, is presented, a nonpattern instruction may be given if it is accurate and will have no improper effect on the jury. Magna Trust, 313 Ill. App. 3d at 388.

	Applying these principles to this case, we conclude that the

instruction which the jury received on this element of damages did

not adequately state the law. We earlier quoted the jury’s

instruction on damages, which included the following description

of this element: “The increased risk of future injuries.”

	This instruction fails to instruct the jury on several important

legal requirements, e.g., the increased risk must be based on evidence and not speculation, and, more importantly, the size of

the award must reflect the probability of occurrence. For example,

as a result of Petriello, Connecticut Civil Jury Instruction No. 2–40(c) was promulgated:

			“Damages–Compensation for Increased Risk of Injury

			***

			The plaintiff claims that he/she has suffered an increased

risk of [alleged future complication] as a result of the

defendant’s negligence. The plaintiff is entitled to recover

damages for physical harm resulting from a failure to

exercise reasonable care. If the failure to exercise

reasonable care increases the risk that such harm will

occur in the future, the plaintiff is entitled to compensation

for the increased risk. In order to award this element of

damages, you must find a breach of duty that was a

substantial factor in causing a present injury which has

resulted in an increased risk of future harm. The increased

risk must have a basis in the evidence. Your verdict must

not be based on speculation. The plaintiff is entitled to compensation to the extent that the future harm is likely

to occur as measured by multiplying the total

compensation to which the plaintiff would be entitled if

the harm in question were certain to occur by the proven

probability that the harm in question will in fact occur.” (Emphasis added.)

	In the present case, the instruction given failed to convey the

principles of law expressed in the italicized portion of the Connecticut instruction. While not prescribing its use verbatim, we hold that the essence of this instruction fairly and correctly states

the law on this element of damages.

	Our responsibility to provide a just result requires reversal on

this issue. The partial dissent, pointing to the dictionary meaning of

“risk,” concludes that the jury instruction given in this case “was

sufficient to describe the type of assessment the jury was required

to make.” Slip op. at 210 (Harrison, C.J., concurring in part and

dissenting in part).

	However, it must be remembered that juries are composed of

laypersons who are not trained to separate issues and to disregard

irrelevant matters. That is the purpose of jury instructions. The

function of jury instructions is to convey to the jury the correct

principles of law applicable to the submitted evidence and, as a

result, jury instructions must state the law fairly and distinctly and must not mislead the jury or prejudice a party. See Ono v. Chicago Park District, 235 Ill. App. 3d 383, 386 (1992); Pry v. Alton & Southern Ry. Co., 233 Ill. App. 3d 197, 214 (1992); Fravel v. Morenz, 151 Ill. App. 3d 42, 45 (1986). In the context of this issue, reliance on a dictionary is inadequate to fulfill this purpose.

	Our responsibility to maintain a sound and uniform body of

precedent likewise requires reversal on this issue. As we earlier

noted, today’s decision represents a departure from the previous

holdings of this court. There was a split of authority in the

appellate court over whether the increased risk of future injury was

compensable as an element of damages. Further, those appellate

court decisions that allowed recovery did not discuss the form of

the instruction. We have now definitively spoken to this issue. A

retrial, in which a jury may apply the correct legal principles to the

submitted evidence, is appropriate to maintain a sound and uniform

body of precedent.

	The jury in this case was inadequately instructed on the

increased risk of future injury as an element of damages.

Accordingly, we reverse plaintiff’s damages award for the

increased risk of future injury, and remand the cause to the trial

court for a new trial solely on that element of damages.

CONCLUSION

	For the foregoing reasons, the judgments of the circuit and

appellate courts are affirmed in part and reversed in part, and the

cause remanded to the circuit court of Cook County for further

proceedings consistent with this opinion.

Appellate court affirmed in part

and reversed in part;

circuit court affirmed in part

and reversed in part;

cause remanded.

	JUSTICE FITZGERALD took no part in the consideration or

decision of this case.

	CHIEF JUSTICE HARRISON, concurring in part and

dissenting in part:

	The appellate court’s judgment affirming the judgment of the

circuit court should be upheld without qualification. Contrary to

my colleagues, I would not remand for a new trial on the element

of damages for increased risk of future injuries. The damages

instruction tendered by plaintiff was adequate as given. Although

my colleagues are quite right that the jury’s assessment of

increased risk must be based on evidence, not speculation, that is

true of every element of damages. Indeed, it is true of every

element of plaintiff’s cause of action.

	Juries are told this at the outset of their deliberations. Illinois

Pattern Jury Instructions, Civil, No. 1.01(3) (1995), specifically

cautions the jury that its verdict “must be based on evidence and

not upon speculation, guess or conjecture.” We do not require this

caveat to be repeated in the instructions governing the other

aspects of a plaintiff’s claim, and there is no reason to require such

repetition with respect to a plaintiff’s claim for damages based on

increased risk of future injuries.

	I am also unpersuaded by the majority’s contention that the

damages instruction tendered in this case failed to adequately

apprise the jury that the size of its award for increased risk of

future injuries must reflect the probability that such injuries will

occur. The instruction was specifically phrased in terms of “risk.”

By definition, risk includes “the product of the amount that may be

lost and the probability of losing it.” Webster’s Third New

International Dictionary 1961 (1986). Accordingly, the charge to

the jury here was sufficient to describe the type of assessment the

jury was required to make.

	Even if the revisions to the instruction proposed by my

colleagues would have been helpful to the jury, that is not an

adequate basis under the law for disturbing the jury’s verdict. In

assessing the sufficiency of the jury’s instructions, the issue is not

whether our court could have phrased the instructions in a better

way. It is whether the instructions given, considered as a whole and

read as a series, were sufficiently clear so as not to mislead the jury

and whether they fairly and correctly stated principles of law which

pertain to the case. See Eaves v. Hyster Co., 244 Ill. App. 3d 260, 262 (1993).

	If the defendants in this case believed that the wording in the

instruction on damages was incorrect, incomplete, or otherwise

inadequate, it was their duty to object to that instruction and to

offer their own remedial versions. Deal v. Byford, 127 Ill. 2d 192, 203 (1989). They did not do so. In the trial court, defendants’

objection was that the issue of increased risk of future injuries

should not be presented to the jury at all. Defendants did not take

issue with the way that issue was set forth in the instruction

tendered by plaintiff, and defense counsel declined an express

invitation by the trial judge to propose alternative language. Under

these circumstances, any claim of error with respect to the wording

of the instruction has been waived. See Diaz v. Chicago Transit Authority, 174 Ill. App. 3d 396, 401-02 (1988).

	In all other respects, I am in complete accord with the

majority’s disposition.