Key Points

  • The First District affirmed a $7.5 million wrongful-death verdict, a $9,113,835.61 judgment with prejudgment interest, against two Advocate entities, Dr. Silvia Bicalho and nurse Josephine Jimenez.
  • A unanimous civil verdict requires each juror to find that the defendant was negligent and that the negligence proximately caused the injury, but not to agree on which of several alternatively alleged acts or omissions established those findings.
  • The court held that Galich v. Advocate Health & Hospital Corp.'s unanimity analysis was at minimum an alternative holding and in any event judicial dictum, and it found Galich correctly decided.
  • Criminal 'multiple acts' unanimity cases do not carry over to common-law medical negligence, the panel held.
  • The trial court did not abuse its discretion in refusing six special interrogatories, because one sought a finding unnecessary to the verdict and the other five could not independently control it; the court did not reach timeliness.

Jurors in an Illinois medical-malpractice trial need not agree on which of a doctor's or nurse's alleged mistakes caused a patient's death, as long as every juror finds that the defendant was negligent and that the negligence caused the harm, a state appeals court held on Nov. 13. The ruling affirmed a $7.5 million wrongful-death verdict against two Advocate entities, including Advocate Illinois Masonic Medical Center, an obstetrician and a labor nurse over the death of a baby during delivery.

Justice Wilson wrote for a unanimous panel of the Illinois Appellate Court's First District, joined by Presiding Justice Oden Johnson and Justice C.A. Walker. The decision leaves in place a Cook County judgment of $9,113,835.61, which includes $1,613,835.61 in prejudgment interest, plus costs.

The court rejected the defense argument that the Illinois Constitution's guarantee of a unanimous civil jury requires all 12 jurors to settle on a single negligent act. The panel endorsed Galich v. Advocate Health & Hospital Corp., a 2024 First District decision whose unanimity analysis the defendants had called dictum. "The jurors were not additionally required to agree on which of the alternative alleged acts or omissions established those findings," Justice Wilson wrote.

The case arose from the birth of Cianie Flores. Her mother, Jeryis Flores, arrived at the hospital in labor at about 5 a.m. on Sept. 26, 2018. At about 8:30 a.m., Dr. Silvia Bicalho told her to "labor down," meaning to let contractions and gravity move the baby lower before pushing. At about 12:50 p.m., Dr. Bicalho placed a fetal scalp electrode, a monitor attached to the baby's scalp, which recorded a markedly low heart rate. She ordered an emergency cesarean section at about 12:51 p.m., and the baby was delivered at about 1:04 p.m. and did not survive.

Plaintiffs' experts testified that the umbilical cord had been repeatedly compressed during contractions, gradually cutting off the baby's oxygen. The defense attributed the death to a small placenta, a thin cord and a sudden, unpreventable blockage shortly before delivery.

At the January 2025 trial before Cook County Circuit Judge Nichole C. Patton, the jury instructions listed three alleged errors by Dr. Bicalho, including the labor-down order and a late cesarean, and three by nurse Josephine Jimenez.

During deliberations, the jury asked: "Do we need to be unanimous on one count or can we be unanimous on any combination?" Plaintiffs' lawyers answered, "Any combination. That's the law." The defense countered, "[I]f they're not unanimous about the way in which there was negligence, how can they be unanimous about proximate cause?" Judge Patton reviewed Galich, said "I'll follow this case," and told jurors they had to agree unanimously that each defendant was negligent but not "as to which one of the three possible acts constitute the negligence."

The defense then offered six special interrogatories, written questions that ask jurors to answer a specific factual question alongside their verdict. Judge Patton refused them, saying, "I don't want them to have special interrogatories now leading them to believe that they need to consider these three factors *** when I already told them that they do not have to." The jury returned a general verdict, one that does not say which theory it accepted, and each juror confirmed it when polled.

The panel relied on Chicago & Northwestern Ry. Co. v. Dunleavy, an 1889 Illinois Supreme Court decision explaining that jurors must agree on what they are required to find, "[b]ut it has never been held that they must all reach their conclusions in the same way and by the same method of reasoning." The Illinois Supreme Court precedents the defendants cited, Justice Wilson wrote, "address the plaintiff's burden of proof, not whether all jurors must rely on the same alleged departure in finding that burden satisfied."

The panel also rejected the defendants' reliance on criminal "multiple acts" cases, in which the evidence concerns several distinct criminal acts, each independently capable of constituting the single offense charged. "[A] unanimity requirement derived from the elements or structure of a criminal offense does not, without more, establish a corresponding requirement under Illinois medical-negligence law," Justice Wilson wrote. The panel found decisions from New Mexico, California and Kansas consistent with its reading.

The defendants had argued that Galich's unanimity discussion was dictum because that court also rested on another ground. The panel called the analysis "at minimum, an alternative basis for the judgment" and, at the least, judicial dictum entitled to weight because the parties had fully argued it. The opinion also noted that the Illinois Supreme Court's civil jury-instructions committee revised its pattern instructions in 2026, citing Galich, though the panel said it did not treat those revisions as the high court's own view.

The court found that the trial judge's answer did not permit a verdict on a vague sense of fault. "Each juror still had to find that the defendant departed from the applicable standard of care in at least one alleged respect and that the negligence found proximately caused plaintiffs' injury," Justice Wilson wrote.

The panel held that Judge Patton did not abuse her discretion in refusing the interrogatories. One asked whether jurors agreed on "the same act or omission," a finding the verdict did not require. Each of the other five addressed a single alleged error, so a negative answer would leave other theories to support liability, and separate questions cannot be "piggyback[ed]" together, the court said.

Lawyers for Advocate and the two caregivers included Robert R. Thomas of Taft Stettinius & Hollister LLP. Lawyers for the Flores family included Clark M. Raymond of Raymond & Raymond, Ltd.

Because the interrogatories were not in proper form, the panel did not decide whether they came too late, having been offered only after deliberations began. The circuit court's judgment was affirmed.