Strong reaction follows medical malpractice reform overturn

Ann Knef Feb. 4, 2010, 5:46am




In a 4-2 opinion, the Illinois Supreme Court has overturned the state's medical malpractice reform law.

The Court's decision reverses a 2005 state law capping non-economic damages -- such as pain and suffering -- for physicians at $500,000 and hospitals at $1 million. The law aimed to lower medical malpractice insurance rates that were blamed for driving doctors out of the state.

But justices said the law was "facially invalid on separation of powers grounds," meaning that the justices felt that the state Legislature overstepped its constitutional bounds by constraining the judicial branch of government.

Chief Justice Thomas Fitzgerald delivered the majority opinion, writing that the court "necessarily" considered the legislature's goal in enacting the statute -- responding to a healthcare crisis.

"The crux of our analysis is whether the statute unduly infringes upon the inherent power of the judiciary," he wrote.

The state Legislature's attempt to limit damages in medical malpractice actions "runs afoul of the separation of powers clause," he wrote.

Fitzgerald also wrote that a $500,000 limit on non-economic damages is arbitrary.

"Although agreeing with the defendants that noneconomic damages are difficult to assess, we determined that such difficulty was not alleviated by imposing an arbitrary damages limitation in all cases, without regard to the facts or circumstances," Fitzgerald wrote.

Fitzgerald was joined in majority by Justices Charles Freeman, Thomas Kilbride and Anne Burke. Justices Lloyd Karmeier and Rita Garman concurred in part and dissented in part. Justice Robert Thomas did not participate in the decision.

"Indeed, we determined that the damages limitation actually undermined the statute's stated goal of providing consistency and rationality to the civil justice system," Fitzgerald wrote.

The Court based its decision on a case that arose from Cook County, LeBron v. Gottlieb Memorial Hospital, involving the severe disability of a young girl, Abigaile Lebron.

Its decision today upholds Cook County Circuit Judge Joan Larsen who ruled that caps were unconstitutional in LeBron in 2007.

In dissent, Karmeier quoted remarks made by President Barack Obama in an address to Congress on healthcare reform.

"Although his proposal focused on expanding health insurance coverage, he also recognized that reform of medical malpractice laws might aid in reducing our nation's health-care costs, while also improving the quality of care delivered by physicians and received by their patients," Karmeier wrote.

"That medical malpractice reforms might have salutary effects on the delivery of affordable health-care in Illinois was a view shared by our General Assembly...," Karmeier wrote.

"Whether this view is a sound one is a judgment our court is not competent to render. Public policy determinations of this kind are ultimately a matter for the legislature," he wrote.

Ed Murnane, president of the Illinois Civil Justice League, commended the opinions of Karmeier and Garman.

"Clearly, they understand what is at stake for the people of Illinois," Murnane said.

The decision is an obvious victory for personal injury lawyers.

Illinois Trial Lawyers Association (ITLA) President Peter Flowers blamed insurance companies for trying to convince the public that victims of medical negligence are responsible for rising healthcare costs.

"Our health care system is reeling and rather than trying to fix it, insurance companies across the country have tried to divert attention from the real reforms that would improve access and care," Flowers said. "With this decision, we can now focus on the real issue – providing meaningful insurance reform that will keep costs down for doctors and patients alike, and ensure access to quality care for every resident in the state."

But, Illinois Hospital Association President Maryjane Wurth said the four-year-old law had brought predictability to a "broken" medical liability system.

"The Court has rejected the clear will of the people of Illinois who called upon their legislators to enact this fair and sensible landmark legislation," she said. "In 2005, the General Assembly determined that there was a real public health crisis driving physicians out of Illinois and making health care more expensive and less available."

Wurth said hospitals across the state will again face even greater challenges recruiting and retaining physicians, especially specialists such as neurosurgeons and obstetricians.

Harold Jensen, M.D., chairman of medical malpractice insurer ISMIE Mutual, said that since the law was passed patient access to health care expanded, frivolous lawsuits went down and malpractice rates leveled off or decreased for many doctors.

"This is practical proof the law is working," Jensen said in a statement. "Not only has competition among insurers grown but doctors have begun returning to Illinois. We vehemently disagree with the court's decision and are extremely disappointed. We've been down this path before and will actively continue the fight for fairness in Illinois courts."

But Swansea medical malpractice attorney Tom Keefe said the reason competition has grown and insurance premiums have gone down is because the statute required ISMIE to disclose "just what their claims experience was--and what kind of profits they were making."

"There hasn't been one single insurance company who has entered the Illinois market in the last two plus years because they thought the caps would be held constitutional," Keefe said. "They entered Illinois because since ISMIE has been required to disclose the kinds of profits they have made---they realize Illinois is not a bad place to write insurance policies."

The bill that passed in 2005 was an against-all-odds legislative victory for its proponents. It passed in large part due to a grassroots movement that originated in Madison and St. Clair counties. Doctors and tort reform advocates helped convince a reluctant Democrat-controlled legislature.

The American Tort Reform Association (ATRA) reacted with "considerable disappointment."

"The liability limits put in place in 2005 were perfectly reasonable, and they had begun to stabilize the cost of medical malpractice insurance for health care providers throughout the state," said Tiger Joyce, ATRA president.

"Most unfortunately, for those in need of critical health care services, particularly in underserved rural communities, today's decision invites a return to pre-2005 conditions when many physicians were retiring or otherwise moving their practices to other states to escape the threat of bankrupting litigation."

Illinois Lawsuit Abuse Watch Executive Director Travis Akin said the decision was a "huge gift" to personal injury lawyers. He criticized justices for acting as legislators.

"This decision is a betrayal of the trust the people in Illinois have placed in the hands of the judiciary," Akin said.

"The 2005 medical malpractice reform law was a response to a real problem," he said. "Illinois residents were tired of seeing their doctors leave to practice medicine in other states. This was a common sense law that was working, and by stepping in to overturn it, the Illinois Supreme Court has reopened the floodgates, causing Illinoisans to worry if their doctors will be there when they need them."

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Organizations in this Story

Illinois Hospital Association
1151 Warrenville Road
Naperville, Illinois 60566

Illinois Trial Lawyers Association
401 W Edwards St
Springfield, IL 62704

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