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NewsMonday, June 25, 2007 9:36 PM CDT
Medical lawsuit reform heats up again in Illinois
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SPRINGFIELD — Two years after a high-profile battle over medical malpractice costs, state lawmakers again are debating the complex and politically charged issue of how lawsuits are handled in Illinois.

The players are the same, but this time trial lawyers are the ones pushing two proposals to let plaintiffs collect more money, rather than critics pushing to limit awards.

One of the measures, signed into law last month, allows plaintiffs in wrongful death cases to seek damages for grief, sorrow and mental suffering. Previously in such cases, Illinois law allowed families to collect only for economic damages and some other specific categories, but not for grief.

The Illinois Trial Lawyers Association said 23 other states already allowed damages for grief and mental suffering.

And Illinois Sen. Kwame Raoul, D-Chicago, who sponsored the original bill, said Illinois’ restrictions were unfair — families couldn’t seek damages for emotional distress, but pet owners could.

“It’s outrageous,’’ Raoul said.

But critics of the law say it could amount to an end-run around medical malpractice caps passed in 2005, which limited non-economic damages, such as for pain and suffering, to $500,000 against doctors and $1 million against hospitals. The caps were an effort to stem a growing tide of doctors leaving the state because of high insurance rates.

Plaintiffs now potentially could file separate malpractice and wrongful death suits and collect on both, essentially allowing them to avoid the caps set in the malpractice law.

That could stick doctors and hospitals with higher legal bills, said Ed Murnane of the Illinois Civil Justice League, who said the new law just gives trial lawyers another way to cash in.

“We’ve taken and pushed that pendulum back to the plaintiff side way past the middle once again in Illinois,’’ said Sen. Kirk Dillard, R-Hinsdale.

Still, advocates for lawsuit limits can claim a victory of sorts: A second, more sweeping proposal that would affect who could be found at fault in civil negligence cases is on hold.

Democrat legislators were pushing a change to Illinois law in response to several recent court rulings on how fault is allocated when several defendants are accused in a single case.

For instance, if three defendants are found to be responsible for a wrongful death, does each pay one-third of the damages? Or does one bear 90 percent of the responsibility and therefore pays 90 percent of the damages?

The question gets even trickier if some of the original defendants have settled out of court. Can juries assign some responsibility to people who aren’t even in the courtroom?

The bills are HB1798 and SB1296.

Generally, Illinois juries are told to ignore defendants that have settled out of court and assign responsibility only to those still named in the lawsuit. But some court rulings have said all defendants should be considered when fault is determined.

Trial lawyers want a new law to clarify that defendants who have settled must be ignored by the jury. Otherwise, they argue, defendants will use an “empty chair’’ strategy of trying to persuade jurors to pin most of the fault on defendants who have settled and aren’t in court to make their case.

But critics say the proposed change would have potentially devastating consequences, claiming it would encourage trial lawyers to target defendants with the “deepest pockets.’’ Lawyers would settle with poorer defendants, even if they bore more responsibility for the incident, and go to court against the ones with money.

They’ve put on a full-scale lobbying blitz to block the measure in the House, and that strategy seems to have worked — for now.

Rep. Julie Hamos, the Evanston Democrat sponsoring the measure, says she will not push forward this session because of legislative opposition.

She’s awaiting guidance from the Illinois Supreme Court, which is expected to weigh in within the next few months.

A lawsuit reform group that traveled the state with a two-sided billboard truck urging residents to call their lawmakers and protest the proposal is claiming victory.

“People power prevailed and greed lost,’’ said Lance Trover of Illinois Lawsuit Abuse Watch.

Hamos hopes the court provides clear direction on this issue and lawmakers can settle it soon. She says legislators would like to take a break from the heated lawsuit debate.

“I think we should just have some settled law and stick with it,’’ Hamos said.

But advocates promise the stakes involved will keep the intensity high.

“It’s going to go on forever,’’ Murnane said. “We’ll keep battling.’’

The bills are HB1798 and SB1296.

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Reader comments on this story - 6 total

Note: All views and opinions expressed in reader comments are solely those of the individual submitting the comment, and not those of the Pantagraph or its staff.

Surgeon wrote on Jun 25, 2007 10:37 PM:

" Yes, there are bad doctors. But most of us work hard, long hours to take care of the sick. It is 10:33PM and I am still working my 15th hour today. Should I be sued for a mistake? Sure. But does it have to ruin my career and family when a mistake occurs? I'm asking for fairness. I'm asking for control over some people trying to hit the lottery everytime they visit their doctor. "

mickwd1 wrote on Jun 25, 2007 10:15 PM:

" PART 2 - It must be decided, if we are going to remedy this crisis, or at least slow it down, if this liberal inference of evidence should be abandoned or modified. In the wake of the ongoing failure to correct the problem, we should reconsider the evidence that is required to initiate a malpractice charge and demand stricter proof - perhaps at minimum to a preponderance of the evidence. just a suggestion from a common sense perspective. Continued efforts along the same vein will, like before, prove to be a waste of time. "

mickwd1 wrote on Jun 25, 2007 10:10 PM:

" Thjs medical malpractrice debacle has once again reared its ugly head. And, for the life of everyone, nowhere can anyone discover a solution. This time, the trial lawyers are on the offensive. Of course, all in the name of the victims. Sure. Yet in 1995 medical malpractice tort reform was attempted, again just recently, and both times these flawed remedies have failed to resolve the problem. I think it's key to take notice that five concerns make up this malpractice crisis: The medical/health care complex itself. insurance companies, lawyers, the abusive malpractice litigant, and the law itself. The later two serve for a great place to start for an immediate slow down in the problems brought on by this crisis. The law is so lax that it creates an environment that invites the abuse. In Illinois, the REP IPSA LOQUITOR standard is used. This is nothing more than circumstantial evidence meaning that nothing more than the immediate evidence at hand, without further investigation will suggest negligence. "

Solomon Grundy wrote on Jun 25, 2007 9:20 PM:

" Dear "Doctors", do you really believe that there will be NO doctors if we continue to let people who suffer at the hands of careless doctors be able to sue medical professionals? Just out of curiosity, did you know that Illinois actually ADDED doctors during the "medical malpractice" crisis of the last few years. I take it that if you or a loved one suffers medical malpractice you will simply shrug it off. Oh, and based on your logic, the family of the woman who died on the floor of the hospital shouldn't sue because they will cause doctors to leave that state. Go ahead and say that with a straight face. "

Doctors wrote on Jun 25, 2007 11:18 AM:

" Most doctors are good doctors, especially the doctors that we have in this area. We need to be thankful for this and stand up and fight against these trial lawyers who are raising the cost of medical care by trying to make money off of suing doctors. We will have NO doctors to care for us because they can all pack up and leave Illinois. We will be left with awful medical care and having to pay twice as much for it. Call your congressmen and show your support for our doctors and hospitals so we all don't end up with hospitals like the one that just let a woman die on thier floor. "

Yeah wrote on Jun 25, 2007 8:28 AM:

" Yeah, ignore out of control pharmacy costs that are well in excess of R&D, ignore massive, excessive executive salaries and profits at insurance companies, pharmaceutical firms, and hospitals, ignore wasteful spending, and go after the victims of medical malpractice. Yeah, that's they're real humanitarians and great at fiscal policy, too! "

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