Illinois appellate court, in Matrese v. Buka, No. 1-06-2276 (1st Dist. Oct. 31, 2008), recently held that the trial court did not commit error in instructing the jury using a 2005 Illinois Pattern Jury Instruction (“IPI”) defining “professional negligence”, rather than the revised 2006 IPI.

The plaintiff filed an Illinois medical malpractice lawsuit action against the defendant opthalmologist seeking monetary damages for injuries sustained following cataract surgery.  Specifically, plaintiff alleged that a posterior capsular tear developed during the surgery and she was injured due to defendant’s negligent postoperative care.

During the jury instruction conference, the parties disagreed about the instruction explaining “professional negligence” to the jury.  Plaintiff submitted the 2006 version of IPI No. 105.01, which stated, in part, that “professional negligence by an opthalmologist is the failure to do something that a reasonable careful opthalmologist would do, or the doing of something that a reasonably careful opthalmologist would not do, under the circumstances . . . ”  The defendant submitted the 2005 version of IPI 105.02, which stated that “an opthalmologist who holds himself out a s a specialist and provides service in his specialty must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified specialist under the circumstances similar to t hose shown by the evidence.  A failure to do so is professional negligence.”

Plaintiff argued that the trial court’s instruction erroneously focused the jury’s attention on defendant’s qualifications instead of his conduct in the particular case.  Furthermore, the committee comments to the IPI instructions note that the 2006 version of IPI No. 105.01 “was updated and intended to replace IPI Civil (2005) Nos. 105.01 and 105.02.”

The court noted that although the Illinois Supreme Court has not yet addressed the accuracy of the 2006 version of IPI No. 105.01, two districts of the appellate court have addressed it and disagree regarding its accuracy.  In Smith v. Marvin, 377 Ill. App. 3d 562 (2008), the Third District held that the 2006 version misled jurors into believing they could use their own experiences to assess the standard of care, and therefore upheld the use of a hybrid 2005 and 2006 instruction.  In LaSalle Bank N.A. v. C/HCA Development Corp., No. 1-06-1859 (Aug. 4, 2008), the First District held that the phrase “reasonably careful” in the 2006 version accurately stated Illinois law and replaced the phrase “reasonably well-qualified” from the 2005 version.

In Matrese, the court held that the entire2006 version of IPI No. 105.01 is not an accurate statement of the law.  The court found certain modifications to the 2006 version are “crucial components of a clear, complete and accurate jury instruction on professional negligence,” including modifications that (1) the professional “must possess and apply the knowledge and use the skill and care ordinarily used by a reasonable careful professional”; and (2) jurors must decide how a reasonably careful professional would act based on “expert witnesses presented at trial.”

Matarese demonstrates the importance of jury instructions in personal injury action, especially in medical malpractice cases.  Chicago personal injury lawyers and medical malpractice lawyers must become deeply familiar with the Civil IPI instructions, as well as the case law in support or in opposition to the instructions.  This case shows that even if a jury instruction is published as an Illinois Pattern Jury Instruction, it is not free from challenge.