Is local tort reform legit?

The Madison County Record Sep. 8, 2004, 8:00am

Local ordinances limiting lawsuits against doctors and hospitals, like the one adopted recently in Belleville, generate plenty of controversy and press. But do they mean anything in court?

According to some legal experts, they don't.

Keith Beyler, professor at Southern Illinois University School of Law, says the Belleville ordinance and others will be completely ineffectual.

"These are symbolic only," Beyler said of ordinances recently passed by communities also including Bensenville, Carbondale and Marion. "For example, some of the ordinances require lawsuits to be filed in the county where medical services are provided, but our venue statutes are passed by the General Assembly. It's clearly improper for a town to do this."

Beyler also noted the Carbondale ordinance would limit non-economic damages and that the Illinois Supreme Court has twice rejected such caps.

"The state supreme court has declared that to be unconstitutional," Beyler said. "There isn't the proverbial snowball's chance that a local ordinance can govern that."

In the end, according to Beyler, the ordinances have the effect in practice of a resolution.

"They may have symbolic value in expressing the feelings of communities in our area that believe the General Assembly needs to get on the stick and do something, but that's their only real value," he says.

Even some doctors' groups question the efficacy of local attempts to curb lawsuits.

For instance, the Illinois State Medical Society lists three objections to the ordinance passed by the Belleville City Council, according to a statement issued by the group.

First, the ordinance endorses an amendment to legislation that was introduced in the last session of the General Assembly by the Illinois Trial Lawyers Association. "That would serve only to worsen the crisis," according to the statement.

ISMS also says the language of the ordinance does not make clear whether doctors will be guaranteed protection of their personal assets.

"Finally, this ordinance will do nothing to improve the litigation climate for physicians or hospitals," according to the statement. "While we appreciate the Belleville City Council's efforts to address the worsening health care crisis, we believe that protecting physicians' personal assets must be coupled with other proposals that eliminate unwarranted lawsuits and reduce the size of skyrocketing jury awards."

The man who says he came up with the idea to approach tort reform at the local level, Tom Pliura, a physician and lawyer in Leroy, Ill., defends the ordinances as a valiant attempt to stop the bleeding.

"Two neurosurgeons in Carbondale left the state July 1, because their prior (medical malpractice) insurer left the state and they could not find anyone to write a policy," Pliura said. "Carbondale was looking for some way to address this problem. If a kid on a bike gets hit by a car in Carbondale, he's going to have to be airlifted to St. Louis or Springfield to find a neurosurgeon."

Pliura approached Carbondale Mayor Brad Cole about using the city's home-rule powers to do something about the lawsuit situation. Communities with home-rule status have broader powers of self-government than smaller, non-home-rule communities. Illinois law gives home-rule cities great power to adopt and devise laws to protect the health, welfare and safety of citizens.

Generally home rule powers are applied to taxation issues, but Pliura hopes home rule could provide the legal authority communities need to change court rules.

And while he acknowledges the question may not be settled until someone challenges an ordinance in court, he says home rule power, which puts few limits on municipalities to act on matters of local concern, leaves him hopeful.

"Is medical malpractice a local concern? Obviously, if the only two neurosurgeons leave the state because of the malpractice situation, it's a local concern," Pliura said.

"I understand both sides," he said.

Other proponents of local action say the ordinances should be put to the test.

"I say challenge it in court and see what happens," said Steve Reeb, a St. Clair County Board member. "Nobody else is doing anything."

Reeb believes that in the absence of state legislation, local action is at least a show of support for doctors.

"Nurses, all medical personnel, they're glad to see something being done," he said. "We have to show these doctors good intent."

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