ITLA pushes bill to increase, cap attorneys' fees in med mal cases

A bill that would cap attorneys’ fees in medical malpractice cases is advancing the Illinois General Assembly.

Pushed by the Illinois Trial Lawyers’ Association, Senate Floor Amendment 2 to House Bill 5151 would cap attorneys’ fees at one-third of a plaintiff’s award and bar lawyers from petitioning the court for higher fees in med mal cases.

The measure, sponsored by Sen. James Clayborne, D-Belleville, passed the Senate Thursday on a 36-15 vote with one lawmaker voting present. All 15 “no” votes were cast by Republicans.

HB5151 now heads to the Illinois House of Representatives, where it will need to be assigned to a committee and approved before heading to the floor for a full chamber vote.

It currently faces opposition from the Illinois State Medical Society (ISMS). If HB5151 fails to pass the House before lame duck session comes to a close next week, it will have to be reintroduced in the 98th General Assembly.

ITLA President Gregory Shevlin said he spoke in favor of the bill during Thursday’s Senate Executive Committee and plans to go back to Springfield Sunday so he can provide testimony on the bill, if needed.

Shevlin, an attorney at  Cook, Ysursa, Bartholomew, Brauer & Shevlin in Belleville, said the measure would create fairness in the attorneys’ fee system.

Under current law, the legislation states, plaintiffs’ attorneys can only seek fees of one-third of the first $150,000 of a med mal award, 25 percent of the next $850,000 recovered and 20 percent of any award more than $1 million.

Attorneys’ fees of one-third of an award are standard in non-med mal cases, Shevlin said, adding that he doesn’t believe that should be the case given how much work goes into handling these type of cases.

Attorneys, however, can currently petition the court for higher fees, requests that Shevlin said are regularly made and granted.

“Because med mal cases are so different and so difficult and so complex, lawyers throughout the state routinely file this type motion,” he said. “Judges have better things to do than have these hearings and its costing both sides time.”

While the measure would increase attorneys’ fees in certain med mal awards, Shevlin said HB5151 includes provisions to prevent lawyers from seeking more than one-third of an award and allow them to contract with clients for a fee less than one-third of the award.

In opposition of the measure, the Illinois State Medical Society on its website seeks support to defeat ITLA's proposal, which it refers to as a “whopping pay raise bill for plaintiffs’ lawyers” that “comes at the expense of injured patients.”

The statewide medical group contends that the bill would “roll back previously-enacted reforms to the contingency fee structure funded by medical liability awards and verdicts” with the goal of giving “lawyers a significant, automatic boost in the portion of the patient’s award they take off the top.”

According to ISMS, HB5151 would increase attorneys’ fees on a $10 million award from about $2.06 million, the current amount allowed, to $3.33 million.

Fees aside, Shevlin said HB5151 would also clean up some language so the Code of Civil Procedure conforms to two Illinois Supreme Court rulings on medical malpractice reform laws (Best v. Taylor Machine Works and Lebron v. Gottlieb Memorial Hospital).

In addition, the measure includes a provision that would create a $250 million cap on the amount of money defendants in civil litigation against tobacco companies have to post as bond in order to appeal a ruling.

Rep. Dwight Kay, R-Glen Carbon, introduced a similar bill this past spring session. The ITLA opposed Kay’s measure.

Much of the debate on Kay’s now-dead bill focused on the Madison County case of Price v. Philip Morris, in which a judge set a $12 million bond that was later reduced to about $6 million for the tobacco giant to appeal the since overturned $10 billion verdict.

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