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Dear Colleagues:
By now, you have most likely heard that the Illinois Supreme Court this morning reversed the entire comprehensive medical litigation reform law that we worked so hard to enact in 2005.
The court ruled 4-2 against the law, with one justice not participating. We have issued an update statewide to ISMS members and ISMIE Mutual policyholders.
The two justices who supported medicine were Rita Garman and Lloyd Karmeier. Justice Robert Thomas recused himself from the entire matter.
The court opinion hinged on the unconstitutionality of capping non-economic damage awards, and threw out the entire statute based on its inseverability clause.
Attached for your review are a court-produced summary of the ruling and the ISMS/ISMIE Mutual joint news release.
While this decision is clearly a disappointing setback, ISMS and ISMIE Mutual will not waiver in our commitment to bring a fair and balanced medical-legal environment to Illinois.
We will actively continue this battle on behalf of members and policyholders. As colleagues approach you with questions of, "What next?",
please let them know we are carefully reviewing the court ruling and will soon be announcing further steps to heal Illinois' broken medical litigation climate.
Peter E. Eupierre, M.D.
Chair, Board of Trustees
Illinois State Medical Society
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Harold L. Jensen, M.D.
Chairman, Board of Directors
ISMIE Mutual Insurance Company
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Supreme Court Summaries
Opinion filed February 4, 2010
Nos. 105741, 105745 cons. Lebron v. Gottlieb Memorial Hospital
Direct appeal from the circuit court of Cook County.
CHIEF JUSTICE FITZGERALD delivered the judgment of the court, with opinion.
Justices Freeman, Kilbride and Burke concurred in the judgment and opinion.
Justice Karmeier concurred in part and dissented in part, with opinion, joined by Justice Garman.
Justice Thomas took no part in the decision.
In 2005, a statutory provision, part of Public Act 94–677, took effect in Illinois that places limits on awards for
noneconomic damages, such as pain and suffering, in medical malpractice cases. The total limit is $1 million for
hospitals and their personnel and $500,000 for doctors.
Shortly after the effective date of this enactment, a baby who was born by Caesarean section was found to have
numerous permanent injuries. Suit was filed against Gottlieb Memorial Hospital in Melrose Park, the doctor, and an
assisting nurse.
This litigation is the lead case in a number of lawsuits which raise the same issue and which the circuit court of Cook County consolidated.
As part of their complaint, the plaintiffs sought a declaratory judgment that the damage limitation was invalid on
constitutional grounds and later moved for partial judgment on the pleadings on this question. The circuit court granted
the relief requested by the plaintiffs, and, because of inseverability wording in the enactment in which the provision is
contained, declared the entire enactment invalid. This direct appeal to the Illinois Supreme Court followed.
In this decision, the supreme court reversed as unnecessary the circuit court's judgment holding the statute
unconstitutional as applied, but affirmed the finding that, under the Illinois Constitution, the statute is facially invalid
on separation of powers grounds.
The supreme court said that the damage limitation violates the constitutional principle of separation of powers by
interfering with the authority of the judicial branch to reduce verdicts. What the statute allows for amounts to a
"legislative remittitur." The supreme court agreed with the circuit court that, because the challenged provision is not
severable, the entire statute is invalid. However, the legislature is free to reenact the other provisions.
The cause was remanded to the circuit court for further proceedings.
http://state.il.us/
FOR IMMEDIATE RELEASE:
February 4, 2010
FOR INFORMATION, CONTACT:
John Maszinski, 312-580-6440
(cell) 312-608-3620
Illinois Supreme Court Strikes Blow to State's Already Ailing Health Care System
High Court Rules Medical Lawsuit Reforms Unconstitutional
Chicago -- Today the Illinois Supreme Court dealt a huge blow to Illinois patients and doctors, overturning the state's medical lawsuit reform law which had been challenged in the court case Lebron v. Gottlieb Memorial Hospital. Enacted in 2005, the law has dramatically improved Illinois' medical liability climate and patient access to health care. According to the court-produced summary, the law was struck because the "damage limitation violates the constitutional principle of separation of powers by interfering with the authority of the judicial branch to reduce verdicts.'"
Decision is at http://www.isms.org/.
"It's profoundly disappointing that the wishes of millions of Illinois citizens have been ignored,'" said Illinois State Medical Society President James L. Milam, M.D. "And it's highly ironic the decision comes at the very time national lawmakers are searching for ways to expand patient access to care and contain unnecessary costs. Medical liability reform is a proven solution on both these fronts. The non-partisan Congressional Budget Office estimates medical liability reforms would save at least 54 billion health care dollars over the next decade. More than half of all states have had similar laws upheld by their courts and benefited from improved patient access to medical care and reduced litigation costs.'"
"Overturning this law further strains our state's already-ailing health care system,'" Dr. Milam noted. "Our Medicare and Medicaid programs, and unreasonable demands from private health insurers, impose significant burdens on doctors' medical practices,'" he said. "Losing medical lawsuit reform heaps even greater pressure on patients and doctors. Something has to give.'"
Background on Medical Lawsuit Reforms
"Since passage of the Illinois reform law, patient access to health care has expanded, frivolous lawsuits have ebbed and malpractice rates have leveled off or decreased for many doctors. This is practical proof the law is working,'" said ISMIE Mutual Chair Harold L. Jensen, M.D. "Not only has competition among insurers grown but doctors have begun returning to Illinois,'" he explained. "We vehemently disagree with the court's decision and are extremely disappointed. We've been down this path before and will actively continue the fight for fairness in Illinois courts.'"
Before 2005, non-economic damage awards in medical liability lawsuits were steadily rising and
wreaking havoc on the state's medical liability insurance climate - driving doctors to retire early or leave Illinois for states with better legal environments. Non-economic damage awards are largely unpredictable and unquantifiable sums awarded by juries for emotional issues such as pain and suffering.
Among a comprehensive list of reform provisions aimed at preserving patient access to medical
care (attached), the Illinois legislature capped non-economic damage awards at $500,000 for doctors and $1 million for hospitals. Under the reform law, patients injured through medical negligence continue to receive full, unlimited compensation for all economic damages such as lost wages, medical expenses and future earning potential.
ISMS is a professional membership association representing 12,000 physicians practicing in all medical specialties statewide. Dr. Milam is an OB/GYN practicing in Vernon Hills
ISMIE Mutual Insurance Company is the largesnsurer of medical liability for Illinois physicians.
Dr. Jensen is an internal medicine specialist from Frankfort.
Highlights of the 2005 Medical Litigation Reforms
Judicial Reforms
- $500,000 cap on non-economic damage awards for physicians and $1 million cap for hospitals. Firm cap, not indexed for inflation and no exceptions.
- Improvements to the affidavit of merit, requiring disclosure of consulting physician's name, and that the physician be an expert in the area of medicine that is the subject of the lawsuit.
- Stronger standards for expert witnesses. Witnesses must be board certified or board eligible in the same specialty as the defendant. The expert must also devote a majority of time to the practice of medicine, teaching or research. Retired experts must be current with continuing medical education.
- Allow the use of annuities for the payment of portions of the award for medical costs.
- Good Samaritan immunity extended to retired physicians providing free care and for free care provided in the home.
- Allow physicians to say "I'm sorry'" or other expressions of grief and apology without the statement being used against them.
Medical Discipline
- Medical Disciplinary Board expanded from nine to eleven members. Four members must be members of the public.
- Doubles the number of IDFPR investigators.
- Extends the statute of limitations from five to ten years for IDFPR to investigate allegations of a pattern of practice.
- IDFPR disciplinary fine increased to $10,000 maximum.
- Good faith immunity for persons reporting to peer review committees alleged violations of Medical Practice Act.
- Internet profiling of physicians' professional credentials, and disciplinary and medical litigation histories.
Insurance Regulation Reform
- More power for the Division of Insurance to call hearings to determine whether rates are excessive or inadequate. Hearings are to be held at the request of 1 percent of insureds within a specialty, or at the request of 25 insureds (whichever is greater). Department will call for a hearing when an increase is over 6 percent.
- Encourages insurers to offer policies with deductibles and premium discounts for risk management programs.
- Requires submission of claims statistics and other data to the DOI. All information will be made available to the public.
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