Caps decision may be another month away

By Ann Knef | Dec 17, 2009


The Illinois Supreme Court may not rule for another month on the constitutionality of the state's medical malpractice reform law.

A ruling had been anticipated Thursday morning regarding a challenge to the Illinois Medical Malpractice Act of 2005 -- a law that caps non-economic damages to $500,000 for doctors and $1 million for hospitals.

Joe Tybor, spokesman for the Illinois Supreme Court, said it wasn't unusual for an opinion on the anticipated list to be withdrawn before filing. Tybor said he did not know when the opinion would be filed.

Supreme Court opinions are typically released once a month, sometimes twice.

Passed by a Democratic state legislature and signed into law by then-Gov. Rod Blagojevich, the law limits non-economic damages, such as pain and suffering. It does not limit actual damages, such as medical expenses and lost wages.

In 2008, Illinois Supreme Court justices heard oral arguments in a case arising out of Cook County, LeBron v. Gottlieb Memorial Hospital, involving the severe disability of a young girl, Abigaile Lebron.

Cook County Circuit Judge Joan Larsen ruled that caps are unconstitutional in LeBron in 2007.

During oral arguments, the attorney for Abigaile LeBron's parents, Georgetown law professor Michael Gottesman, argued that the girl's medical problems were the result of medical mistakes during her mother's pregnancy. Gottesman told the justices the damage cap is unfair.

Representing the legal team defending the 2005 law, former U.S. Solicitor General Theodore Olson 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's ruling, the American Insurance Association said tossing the non-economic damage award cap would "subject medical malpractice insurers to excessive verdicts and settlements, setting back the limited progress we have seen in the Illinois market."

The Illinois Trial Lawyers Association (ITLA) canceled a press conference that had been scheduled in Springfield Thursday.

Former ITLA President Philip Corboy has called the law "a one-sized fits all approach that does not protect those who have been most harmed by medical and hospital negligence."

"The caps ordain that a little girl like Abigaile, who suffers from severe brain damage as a result of medical negligence, should be entitled to the same monetary damages as someone who suffered a much lesser injury, despite the fact that she and her family will be burdened for a lifetime," Corboy wrote earlier this year.

In a commentary published Thursday, Ed Murnane, president of the Illinois Civil Justice League, raised questions about the impact of the court's decision.

"So what happens if the law is declared null and void? Will those legislators support another version of reform that is likely to emerge, perhaps even this year, " Murnane wrote.

"Will doctors sound the alarm again with warnings that Illinois could face doctor shortages if the threat of increasing litigation and rising insurance rates drives doctors away? There is certain to be more litigation if the law is overturned. That's why the trial lawyers challenged it.

"Will voters who have been passionate about defending their doctors in the past rally again, and once again declare the polling places in a Supreme Court district (or several) to be the primary battle field?

"Will the uncertainty surrounding federal health care proposals and the likely resulting higher costs make access to health care a major issue in all Illinois elections in 2010? Are candidates for governor prepared for that?"

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