Subscribe for 33¢ / day

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.


Load comments