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Wednesday, Nov. 12, 2008 04:14 am

Supreme Court begins review of caps on malpractice awards

Victims’ advocates say caps, overturned twice before, are still unfair

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ILLUSTRATION BY HECTOR CASANOVA/MCT

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On Oct. 31, 2005, Abigaile LeBron was delivered via cesarean section at Gottlieb Memorial Hospital in Melrose Park. She was born with cerebral palsy and severe brain damage. A year later, her mother Frances filed a medical malpractice lawsuit against the hospital and her doctor and nurse.

The suit, which alleges that Abigaile will require specialized care for life, challenges the constitutionality of a state law that limits non-economic, or “quality of life,” compensation for medical malpractice plaintiffs to $1 million from hospitals and $500,000 from doctors. Last November, the Cook County circuit court sided with the LeBrons, declaring the law unconstitutional. The defense appealed to the Illinois Supreme Court, where arguments begin in Springfield Nov. 13 (today).

Joanne Doroshow, executive director of the Center for Justice & Democracy, a nonprofit consumer rights organization, advocates publicly for the LeBrons and other medical malpractice plaintiffs. Doroshow feels confident that the state’s Supreme Court will overturn the law, enacted in 2005, since justices ruled against similar legislation in 1976 and 1997.

“This is the third cap that Illinois has tried to pass,” Doroshow says. “The last two times, the Supreme Court said it violated the constitution of the state, and there’s really no difference at all in this case.”

In the 1976 Illinois Supreme Court case, Wright v. Central DuPage Hospital Association, the court ruled that a $500,000 cap on non-economic damages benefited special interest groups but denied equal protection to injured victims of medical malpractice.

The court ruled similarly in the 1997 case, Best v. Taylor Machine Works, finding a $500,000 cap unconstitutional on the grounds that it granted special privileges. Justices also said it violated “separation of powers” by removing the authority from judges and juries to decide full compensation in medical malpractice cases.

Doroshow and others at the Center for Justice & Democracy say it’s a civil rights matter. There is no limit on the amount of compensation plaintiffs can receive in economic damages, such as lost earnings, so there isn’t reason to limit the amount of compensation they can receive in non-economic damages — vital to children and adults who don’t earn salaries.

“In a very, very serious case, a cap like this is very cruel to the patient,” Doroshow says. “Especially if we’re talking about a child that is catastrophically injured and will need compensation for the rest of their life. There really is a tremendous hardship on families.”

Those on the other side of the issue, including the American Medical Association and the Illinois State Medical Society, believe that the law enables all Illinois citizens to access better health care.

In a brief filed with the Illinois Supreme Court in support of the appellants, the organizations state that because of the caps on malpractice awards, “access to health care is widening, malpractice insurance rates have decreased, competition among insurers has increased, and health care providers are returning to or deciding to remain in Illinois.”

They argue that before the law was passed, health care services were reduced or eliminated to divert resources to cover the rising expense of liabilities. In turn, they say, increasing insurance premiums led to a shortage of doctors in Illinois, especially in high-risk specialties like neurosurgery that experience a higher risk of malpractice litigation.

The AMA and the ISMS conclude that the General Assembly resolved a major political question by weighing the public interest in affordable and accessible health care against the public interest in compensating those who have been injured by medical malpractice.

They state that the 2005 cap is “rationally grounded on the principle that large awards of non-economic damages in medical malpractice cases, whether by judges or by juries and even when sustained by the evidence, lead to excessive social costs.

“Those costs, which may be deduced from statistical evidence, from anecdotes, or even from reasonable conjecture, diminish the affordability and availability of health care in Illinois.”

When asked about the medical associations’ claims, Doroshow answers that it wasn’t the cap on non-economic damages, but medical malpractice insurance reforms passed at the same time, that lowered insurance premiums and began to stabilize Illinois’ health care.

“When doctors say they’re leaving the state, it’s about what they say — the insurance rates are too high,” Doroshow says. “And what we know is that when the rates are high, as they are periodically in every state, it has to do with a lack of regulation in the industry. Before the medical malpractice regulation law was passed alongside the cap, there was no regulation of insurance rates in Illinois.”

As the Illinois Supreme Court considers the constitutionality of the cap on non-economic damages, Doroshow adds, they’ll also be forced to consider the medical malpractice reform legislation since the two were passed together. If justices strike down the law, she hopes the General Assembly will return to reauthorize the regulation.

“That’s the only thing that’s going to keep doctor’s insurance rates under control,” she says.

Contact Amanda Robert at arobert@illinoistimes.com.

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