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In Illinois- A Pendulum Swing On Med Mal Caps

Posted by Jane Akre
Friday, November 16, 2007 12:54 PM EST
Category: Major Medical, Protecting Your Family
Tags: tort reform, diagnosis errors, medical malpractice, birth injuries

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A “judicial hellhole

That’s what President Bush called Madison County, Illinois during a post-election visit in 2005.

In its poll of the country, the American Tort Reform Association found it was the best place in America to file a medical malpractice lawsuit because of large judgments.

Tort reformers including the 

  claimed doctors were closing their businesses, moving to states with a friendlier malpractice climate and personal health insurance rates would continue to rise without medical malpractice caps. 

Illinois had always been targeted as one of the worst states for “legal fairness". Cook County reportedly had 44 verdicts in excess of $5 million the previous year.

So in 2005, the state legislature enacted caps on recovery in medical liability cases -  $500,00 for a doctor and $1 million per hospital, a move many in the state predicted would soon be the target for a legal challenge.   

Now a Cook County, Illinois Judge has ruled that limiting pain and suffering awards, the non-economic damages for medical malpractice is  “unconstitutional”.  

Judge Joan Larsen ruled this week that the legislature should not supersede a judge’s ability to award damages in an outrageous case of medical malpractice. 

The Case

The first challenge to the 2005 law and the defining case for the future of caps in Illinois is Abigaile LeBron vs. Gottlieb Memorial Hospital and Dr. Roberto Levi-D’Ancona (Cook County: 06 L 12109).

The LeBron family alleged the doctor’s failure to respond quickly to complications during Abigaile’s birth in October 2005, left her with severe brain damage.

Judge Larsen based her ruling on the 1997 Best case decision (Best v. Taylor Machine Works) which also overturned a compensatory caps law.

Judge Larsen wrote that the Supreme Court had determined that a cap on non-economic damages violates the separation of powers in the state Constitution and “disregards the jury’s careful deliberative process in determining damages that will fairly compensate injured plaintiffs who have proven their causes of action.” 

Reaction has been swift from industry.

The insurance industry calls the decision a “disappointment”.

An American Insurance Association (AIA) spokesman’s statement reads:

“Throwing out the noneconomic damage award cap will once again subject medical malpractice insurers to excessive verdicts and settlements, setting back the limited progress we have seen in the Illinois market.”

The American Medical Association in a statement said the decision could hurt patients.

"Today's ruling to strike down the medical liability cap in Illinois is a step backward for Illinois' patients and physicians as it once again puts patients' access to care in jeopardy."

Insurers and doctors will be watching the outcome of the appeal. 

Obstetricians, among the hardest hit with high premiums have reportedly seen a drop to an average of $125,000 from $200,000 in Cook County. 

Medicus Insurance of Austin Texas and other carriers came to Illinois after the legislative cap.  There are now a dozen or so carriers for medical malpractice insurance in Illinois,  double the number from two years ago.

The issue will now go to appeal in the Illinois Supreme Court which has struck down similar damage caps in the past.

Ultimately the jury is still out on whether capping non-economic damages actually has any impact on the outcome of cases. #



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