
    Barbara GRAFF, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.
    No. 00 C 2739.
    United States District Court, N.D. Illinois, Eastern Division.
    Sept. 24, 2002.
    
      John C. Ambrose, F. John C. Ambrose, F. John Cushing, III, Robert P. Reske, Thomas M. Cushing, Ambrose & Cushing, P.C., Chicago, IL, for Plaintiff..
    M. Elizabeth Bennett, Anderson, Bennett & Partners, Chicago, IL, for Defendant.
   MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

Plaintiff Barbara Graff sued Defendant National Railroad Passenger Corporation (“Amtrak”), as well as other parties who have since been dismissed, for injuries relating to a stroke she suffered while a passenger on board an Amtrak train to Chicago. This case was originally brought in Illinois state court, but was removed by Amtrak. I have jurisdiction because Amtrak was incorporated by an act of Congress, and the United States owns a majority of its capital stock. See 28 U.S.C. § 1331; 28 U.S.C. § 1349; Vasquez v. North County Transit Dist., 292 F.3d 1049, 1060 (9th Cir.2002). Amtrak now moves for summary judgment. I grant the motion.

I. Background

On March 28, 1998, Ms. Graff and her two adult daughters, Amber Nelson and Carrie Wiberg, were passengers on board an Amtrak train traveling from Little Rock, Arkansas to Chicago. At 3:14 p.m., the train left Joliet Station en route to Chicago Union Station. Shortly after departure, Ms. Graff suffered a stroke. At 4:10 p.m., the train arrived at Union Station. By 4:26 p.m., two emergency units from the Chicago Fire Department had arrived on the scene and made contact with Ms. Graff by 4:32 p.m. The paramedics left Union Station with Ms. Graff at 5:00 p.m. and arrived at Northwestern Memorial Hospital at 5:10 p.m.

At the hospital, Dr. Teepu Siddique, a neurologist, determined that Ms. Graff was a candidate for the administration of a drug know as tPA because less than three hours had passed since the onset of her stroke. The medical consensus in this case is that there is an approximately 30% chance of improvement or complete recovery in patients who receive tPA within three hours of a stroke. There are, however, also risks associated with the administration of tPA. Dr. Siddique was unable to get consent for this treatment from Ms. Graffs daughters within the three hour window so tPA was not administered.

Ms. Graff alleges that Amtrak’s failure to make arrangements so that she would have gotten medical attention earlier caused or contributed to her injuries, including a reduced chance of recovery. Summary judgment is proper when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c); see also Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir.1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In determining whether a genuine issue of material fact exists, I “construe all facts in the light most favorable to the nonmoving party and draw all reasonable and justifiable inferences in that party’s favor.” Popovits, 185 F.3d at 731 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). However, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see also Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994).

II. Analysis

In order for Ms. Graff to prevail in a negligence action against Amtrak, she must show that Amtrak breached some duty that it owed her, and that this breach proximately caused an injury to her. See Jones v. Chicago HMO Ltd., 191 Ill.2d 278, 246 Ill.Dec. 654, 730 N.E.2d 1119, 1129 (2000). The only issue raised by Amtrak in its motion for summary judgment is the issue of proximate causation.

Proving proximate causation traditionally requires a plaintiff to show “that defendant’s negligence ‘more probably than not’ caused plaintiffs injury.” Holton v. Memorial Hosp., 176 Ill.2d 95, 223 Ill.Dec. 429, 679 N.E.2d 1202, 1207 (1997). Amtrak argues that because any individual stroke victim has only a 30% chance of benefiting from timely administration of tPA, it is impossible for Ms. Graff to show that it is more likely than not (a showing requiring greater than 50% certainty) that her injuries would have been less severe if given tPA. Amtrak’s argument is premised on the idea that Ms. Graffs claimed injury is the marginal increase in harm she suffered as a result of not receiving tPA. Amtrak argues that because there is a 70% chance that she woüld have suffered this harm even if its conduct had not caused a delay in administering tPA, she could not show that Amtrak’s conduct more likely than not caused this injury.

This analysis misunderstands the nature of Ms. Graffs injury. Her injury is not the marginal increase in harm that occurs when tPA is not administered. Her injury is the failure itself to administer tPA at all. Had she been given tPA, she would have enjoyed a 30% chance at reducing her harm. It is this lost chance, the lost opportunity to have even a 30% chance at reducing her harm, that constitutes her injury. See generally Doll v. Brown, 75 F.3d 1200, 1205-06 (7th Cir.1996) (Posner, J.) (discussing probabilistic injuries). The Illinois Supreme Court explicitly endorsed this “lost chance” doctrine in Holton v. Memorial Hospital, 223 Ill.Dec. 429, 679 N.E.2d at 1213. In applying the doctrine, the court in that case held that “evidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment lessened the effectiveness of treatment is sufficient to establish proximate cause.” Id. at 1211 (internal citation and emphasis omitted). Here, the failure to administer tPA lessened the effectiveness of Ms. Graffs overall treatment. The fact that Ms. Graffs chance of benefitting from tPA was only 30% is irrelevant. See id. at 1213 (“We ... reject the reasoning of cases which hold, as a matter of law, that plaintiffs may not recover ... if they are unable to prove that they would have enjoyed a greater than 50% chance of survival absent the alleged malpractice of the defendant.”).

Amtrak cites several post -Holton decisions to support its argument that a lost chance of less than 50% effectiveness cannot establish proximate causation. These cases, however, focus on the existence of specific procedures that were negligently withheld, rejecting plaintiffs’ claims not because the expected benefit of any treatment was less than 50%, but because plaintiffs failed to indicate specifically which beneficial treatments were withheld. See Reed v. Jackson Park Hosp. Found., 325 Ill.App.3d 835, 259 Ill.Dec. 460, 758 N.E.2d 868, 877-78 (2001) (affirming summary judgment for defendant where record did not disclose any potential treatment for decedent’s condition); Townsend v. University of Chicago Hosps., 318 Ill.App.3d 406, 251 Ill.Dec. 877, 741 N.E.2d 1055, 1061 (2000) (reversing jury verdict for plaintiff where record did not disclose any potential treatment for plaintiffs condition); Aguilera v. Mount Sinai Hosp. Med. Ctr., 293 Ill.App.3d 967, 229 Ill.Dec. 65, 691 N.E.2d 1, 7 (1997) (affirming j.n.o.v. in defendant’s favor where there was no evidence that an earlier diagnostic exam would have led to surgical intervention or any other treatment). In contrast, in Meck v. Paramedic Services of Illinois, 296 Ill.App.3d 720, 231 Ill.Dec. 202, 695 N.E.2d 1321 (1998), the Illinois Appellate Court reversed summary judgment for a defendant where the plaintiff cited seven specific procedures not taken (including failure to inject enough Epinephrine), even though plaintiff could not show that the procedures would have increased decedent’s chance of survival by more than 50%. Id. at 1324. Here, there is no dispute that Dr. Siddique sought to administer tPA, and that tPA gives patients a 30% chance of improvement or full recovery. If Amtrak’s alleged negligence was the proximate cause of the failure to administer tPA to Ms. Graff, it can be found liable.

In Illinois, the proximate cause analysis takes the form of a two-part inquiry: Was the defendant’s negligence “a material and substantial element in bringing about the injury” (cause in fact), and, if so, “was the injury of a type that a reasonable person would see as a likely result of his or her conduct” (legal cause)? First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 242 Ill.Dec. 113, 720 N.E.2d 1068, 1072 (1999). Regardless of whether Amtrak’s alleged negligence was a cause in fact of the failure to administer tPA to Ms. Graff, it was not the legal cause. Here, it is undisputed that Ms. Graff arrived at the hospital at 5:10 p.m. (Def.’s Statement of Facts § 13.) There is some dispute regarding the exact of time of Ms. Graffs stroke, but even assuming it took place as early as 3:14 when the train left the station in Joliet, plaintiff was in the hospital in less than two hours, leaving over a one hour window in which to diagnose Ms. Graff and obtain consent from her daughters to administer tPA. It is undisputed that Dr. Siddique determined that Ms. Graff fulfilled all necessary criteria for receiving tPA within the three hour window. (Def.’s Statement of Facts ¶ 14.) Further, both daughters admit that they had close to fifteen minutes to decide whether or not to give their consent. (Nelson Dep. at 203-04); (Wiberg Dep. at 85.) The decision to withhold consent was entirely the daughters’. Amtrak neither caused the daughters to withhold consent, nor reasonably could have anticipated that decision as a likely consequence of its conduct. See First Springfield Bank, 242 Ill.Dec. 113, 720 N.E.2d at 1073. At best, Amtrak created a condition (a shortened window of time for Ms. Graffs daughters to consult with doctors and decide on consent) that made the injury (failure to administer tPA) possible. The failure to administer tPA was actually caused, however, by subsequent independent acts of the daughters in withholding their consent. Amtrak’s alleged negligence in creating the condition is thus not the proximate cause of injury. See id. at 1071 (“[I]f the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury.”).

III. Conclusion

Because Amtrak’s alleged negligence was not the proximate cause of Ms. Graffs failure to receive tPA, Amtrak’s motion for summary judgment is GRANTED. 
      
      . Neither side here suggests that anything other than Illinois law governs the substantive issues in this case. I therefore proceed under that assumption.
     
      
      . While Holton and its progeny are all medical malpractice cases against hospitals and physicians, there is no reason why they cannot be applied to other types of negligence actions against other types of tortfeasors. Holton held that the standard of proximate cause used in malpractice cases is the same standard of proximate cause used in other negligence actions. 223 Ill.Dec. 429, 679 N.E.2d at 1209.
     
      
      . Amtrak states that Ms. Nelson reported to attending physicians at the hospital that Ms. Graff first appeared ill at 3:40 p.m. (Def.’s Statement of Facts ¶ 4), while Ms. Graff claims that her symptoms were evident around 3:20 p.m. (Pl.'s Statement of Facts 11).
     
      
      . Ms. Graff argues that Amtrak has waived any argument relating to her family members' withholding consent by failing to adequately develop the argument. (Pl.'s Mem. in Opp’n to Summ.J. at 2 n. 1.) While Amtrak focused its energy on the “lost chance” doctrine, it made sufficient reference to Ms. Graff's daughters' failure to consent in its brief and statement of facts to preclude waiver.
     