Illinois justices consider constitutionality of medical malpractice caps

Chris Rizo Nov. 19, 2008, 5:51am

Illinois Supreme Court

If the Illinois Supreme Court decides to strike down limits on medical malpractice awards it could mean fewer doctors practicing in the state, sources said.

The state's high court is examining the constitutionality of caps lawmakers placed on lawsuit awards. In 2005, state legislators passed a law that capped non-economic damages, such as pain and suffering, in medical malpractice suits to $500,000 for doctors and $1 million for hospitals.

The three-year-old law, however, does not limit actual damages, including medical expenses and lost wages.

Proponents of the caps say the Illinois Medical Malpractice Act of 2005 is a commonsense way to keep doctors, particularly in underserved areas, from being driven out of practice by skyrocketing medical malpractice insurance rates.

"If the law becomes invalidated, we're going to be right back where we were in 2003 and 2004, when there was a crisis in access to care, doctors were leaving the state and there were high jury awards and settlements," said Jeffrey Junkas, the American Insurance Association's Midwest director of public affairs.

"There was a strain on the entire (health care) system," Junkas said. "It was a legal system that got a little out of control in terms of high jury awards and settlements."

Calling the reform law a "stabilizing force" to keep doctors in the state and malpractice premiums in check, Travis Akin, executive director of Illinois Lawsuit Abuse Watch, said patients would ultimately be the ones to suffer if the reform law is overturned.

"The law is working," he said, noting that for the second consecutive year the base premium rate for ISMIE Mutual Insurance Company, the state's largest medical liability insurer of physicians, has remained the same.

The Supreme Court case represents "a serious situation" for people in the Land of Lincoln concerned about their access to health care. The case will likely be decided next year.

"If the law is struck down we'll be well on our way back to the way things were before the law passed," when physicians were fleeing the state, Akin said in an interview from his office in Marion, Ill.

Last year, Cook County Circuit Court Judge Joan Larsen ruled in the case of LeBron vs. Gottlieb Memorial Hospital that the caps are unconstitutional. Six of the seven state Supreme Court judges heard the case Thursday that centers on Abigaile LeBron, a 3-year-old girl who is severely disabled.

The attorney for her parents, Georgetown law professor Michael Gottesman, says the girl's medical problems, which include cerebral palsy, were the result of medical mistakes during her mother's pregnancy. He told the justices the damage cap is unfair.

Meanwhile, former U.S. Solicitor General Theodore Olson, representing the legal team defending the 2005 law, told the high court that the caps help to keep doctors practicing medicine in the state.

"Before 2005, non-economic awards in medical liability were increasing substantially and wreaking havoc on the medical liability insurance market - both of which were driving doctors to retire early or leave for states with better legal environments," Olson said.

After Larsen ruled that the cap is unconstitutional, the American Insurance Association said tossing the non-economic damage award cap "will once again subject medical malpractice insurers to excessive verdicts and settlements, setting back the limited progress we have seen in the Illinois market."

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Cook County Circuit Court
50 W Washington St
Chicago, IL 60602

Illinois Supreme Court
200 E Capitol Ave
Springfield, IL 62701

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