Decision harms health care reform

The Madison County Record Feb. 6, 2010, 4:37pm

In his 2003 book, Coercing Virtue: The Worldwide Rule of Judges, onetime Supreme Court nominee Robert Bork warned about "the seizure by judges of authority properly belonging to the people and their elected representatives."

Noting "the recent ascendancy almost everywhere of activist, ambitious, and imperialistic judiciaries," Bork wondered why "the role of courts in displacing self-government and forcing new moralities has not triggered a backlash. Courts have been and remain far more esteemed than the democratic institutions of government," he observed, "even though the courts systematically frustrate the popular will as expressed in laws made by elected representatives."

Seven years later, the usurpations continue. Last Thursday's overturning of caps on medical malpractice awards by the State Supreme Court is just the latest example.

The high court reversed a 2005 state law capping non-economic damages such as pain and suffering at $500,000 for physicians and $1 million for hospitals. This is not the first time the Court has reversed the will of the people and their elected representatives on the subject of medical malpractice reform.

Chief Justice Thomas Fitzgerald found the cap "arbitrary." Perhaps not as arbitrary, or capricious, as four judges thwarting a legitimate legislative effort to address a serious, enduring problem, but "arbitrary" just the same.

"The crux of our analysis is whether the statute unduly infringes upon the inherent power of the judiciary," Fitzgerald wrote in the majority opinion praised by the plaintiff's bar.

The audacity of that statement takes the breath away. The Court usurped the powers of another branch of government – it did the very thing it accused the legislature of doing. Apparently that's okay because what it did protected its power.

Fitzgerald professed concern for "separation of powers" while amassing powers that we do not think belong to him.

Neither he nor the Court deserves esteem for this decision. The court has overreached, and the legislature needs to pass new, carefully crafted legislation that creates caps on medical damages and also meets the imposed standards of the court.

The plaintiff's bar seems to be the obstructionist bar against health care reform; it's time Illinois' citizenry raised its voice against their pro-lawsuit maneuvering.

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