SPRINGFIELD - Judges can restrain jurors in awarding damages but legislators can't, the Illinois Supreme Court ruled on Feb. 4.

Four Justices agreed that when legislators capped non-economic damages in medical malpractice trials, they violated the Illinois Constitution.

The majority put their faith in the doctrine of remittitur, which imposes a duty on a trial judge to trim an unreasonable verdict.

Chief Justice Thomas Fitzgerald wrote that when a verdict falls outside a reasonable range or results from passion and prejudice, a judge must seek plaintiff's consent for remittitur.

"If consent is not given, the court has a duty to order a new trial," he wrote.

Judges must consider remittitur case by case, he wrote, carefully examining evidence and circumstances to determine whether they must override jury verdicts.

He rejected the notion that malpractice caps saved money.

He quoted a 1997 decision that, "We are unable to discern any connection between the automatic reduction of one type of compensatory damages awarded to one class of injured plaintiffs and a savings in the systemwide costs of litigation."

Even if it saved money, he wrote, a constitutional ban on special legislation wouldn't allow the entire burden of the savings to rest on one class of plaintiffs.

Justices Charles Freeman, Thomas Kilbride and Anne Burke concurred. Justice Robert Thomas took no part.

Justices Lloyd Karmeier and Rita Garman dissented, arguing that the law didn't violate the constitution but the majority did.

"We have no business telling the General Assembly that it has exceeded its constitutional power if we must ignore the constitutional constraints on our own authority to do so," Karmeier wrote.

He found the doctrine of remittitur constitutionally suspect.

He found the question of damages purely speculative.

"The plaintiffs in this case have not yet prevailed on any of their medical malpractice claims against any of the defendants named in their complaint," he wrote.

Legislators passed the law in 2005, capping non-economic damages at $1 million for hospitals and $500,000 for doctors.

Non-economic damages include not only punitive damages but also pain and suffering, disability, disfigurement, loss of consortium and loss of society.

Gov. Rod Blagojevich signed the bill in Alton, highlighting concerns that adverse verdicts and high insurance premiums drove doctors out of Madison County.

Three plaintiffs challenged the law in personal injury suits.

Cook County Circuit Judge Diane Larsen consolidated the suits and declared the law unconstitutional in its entirety.

In affirming the decision, the Supreme Court indicated that a cap on punitive damages alone wouldn't have offended the constitution.

Fitzgerald quoted a 1958 decision that, "Such damages being allowed in the interest of society, and not to recompense solely the individual, to deny them cannot be said to deny any constitutional right or to encroach upon any judicial function, or to violate any constitutional guaranty of separation of powers."

He added that "a ban on punitive damages is not akin to a cap on non-economic compensatory damages."

Karmeier answered that, "While my colleagues purport to defend separation of powers principles, it is their decision, not the action of the General Assembly, which constitutes the improper incursion into the power of another branch of government."

He denied the standing of the plaintiffs to bring suit.

"The case remains at the pleading stage, and the allegations of malpractice contained in the complaint have been denied," he wrote.

The law provided that jurors must not know about the caps, he wrote.

"The jury is therefore free to award any amount supported by the evidence and the principles governing liability," he wrote.

He expressed doubt that lawyers refrained from meritorious claims for economic damages merely because non-economic damages might be subject to caps.

He couldn't find a case to study.

"To my knowledge, there has yet to be a single documented instance from any circuit in which any victim of medical malpractice has seen his or her award of non-economic damages actually reduced pursuant to this statute," he wrote.

"Whether there is a solution to the health care crisis is anyone's guess," he wrote.

"I am certain, however, that if such a solution can be found, it will not come from the judicial branch," he wrote.

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