The Recently Passed Medical Malpractice Bill Should Not Become Law

by John P. Scanlon

Now that the rhetoric about medical malpractice has calmed down to some degree, thoughtful analysis of the Medical Malpractice Bill should be done before any action is taken by the Governor. On May 31, 2005, the General Assembly passed a Bill (Senate Bill 475) addressing issues of medical malpractice and insurance reform. Within thirty days the General Assembly must send the Bill to the Governor for action. The Governor then has an additional sixty days to sign it or veto it. The Bill becomes law if the Governor takes no action within the sixty days.

HOW SENATE BILL 475 AFFECTS PATIENTS RIGHTS

SB475 limits claims for certain damages (non-economic damages) to $500,000.00 against doctors and to $1 million against hospitals. As used in the Bill, "non economic damages" include compensation for disability, loss of a normal life, disfigurement, amputation, paralysis, brain injury and loss of society for the death of a family member.

No matter what a jury returns for a seriously injured patient in excess of the $500,000.00, the award would be automatically reduced to $500,000.00. Also, the law would require that jury not be informed that their award would be reduced if it exceeded $500,000.00 in non-economic damages.

FRIVOLOUS LAWSUITS SHOULD BE ELIMINATED

During the malpractice debate, certain public officials equated malpractice lawsuits with frivolous lawsuits. By definition, everyone should be against frivolous lawsuits. They waste the time and efforts of those involved with the administration of justice. However, to loosely describe malpractice suits as frivolous is just wrong. There are currently more safeguards against filing frivolous malpractice claims than any other type of suit. Only in medical malpractice cases, is it required that before a claim can be filed, a physician must determine and an attorney swear that the claim is meritorious. In addition, the extreme cost of malpractice litigation self regulates it against frivolous claims.

Also during the debate, there were allegations that "greedy" trial lawyers were the problem. In fact, in medical malpractice lawsuits, plaintiffs' attorneys' fees are limited by statute. Depending on the amount of the recovery, the fees can go down to 20% of the recovery. It is only through trial attorneys, that many individuals can take on the huge health care industry and try to level the playing field.

CAPS WON'T WORK

Caps on non-economic damages have not been effective in other large states. In California, a cap on damages was passed decades ago, but the insurance premiums went up for many years after passage. It wasn't until the voters passed Proposition 103 with insurance regulation that the increases slowed. In Texas, the largest malpractice carrier admitted that the caps would save only about 1% on premiums - nowhere near what is needed. In Illinois, ISMIE, the state's largest malpractice carrier, will not even guarantee premium reductions if SB475 takes effect. The President of the Civil Justice League, a principal backer of medical malpractice caps in Illinois, also refuses to state that caps will lower malpractice insurance premiums in Illinois. In reality, doctors' insurance premiums have steadily increased even with the number of malpractice filings and the average payouts decreasing. Studies indicate that large awards are not to blame, but rather a poor return on investments by insurance carriers, and the desire for excessive profits drove the premiums higher.

CAPS WILL HURT

Caps will, in the end, actually hurt children, women, seniors, minorities, the poor and certain severely injured persons who have lower economic damages. Caps hurt those most deserving of compensation - those suffering, as a result of medical malpractice, brain damage, paralysis and loss of limb - all those suffering non-economic damage in excess of $500,000.00.

The General Assembly should not have looked for a solution to high premiums with a "one size fits all" approach. The severity of damages must be evaluated on a case by case basis in the courts. If a particular jury awards what is determined by the court to be excessive, the court has the power and the obligation to remit or lower the award. With caps, damages are reduced automatically without any consideration of the individual facts of the case.

CAPS ARE UNCONSITUTIONAL

On two occasions, the Illinois Supreme Court has found caps on damages unconstitutional. It violates the Separation of Power Clause because, in requiring that certain jury verdicts be lowered, the General Assembly is exercising powers that belong to the courts. The Bill contains positive insurance regulation which can hold down doctors' premiums. It also contains provisions for increased scrutiny for the small number of doctors responsible for a large portion of malpractice claims. Unfortunately, the way the Bill was written, if caps are held unconstitutional, insurance regulation and improved doctor discipline will also be voided.

In the weeks since the passage of the Bill, there have been a number of editorials urging the Governor to veto the Bill. Organizations such as the Illinois AFC-CIO, Illinois Alliance for Retired Americans, NAACP, the Illinois State Bar Association, the Chicago Bar Association and Citizen Action Illinois, are urging the Governor to veto the Bill.

While it is a fact that doctors' malpractice premiums are too high, the solution lies with insurance regulation. The burden should not lie on the backs of the women, children, minorities and elderly persons severely injured by malpractice. Two hundred years ago, Thomas Jefferson, said the jury system was more important to our democracy than even the right to vote. SB475 is a serious assault on our jury system. The Governor should be urged to veto SB475.