Bill would expand suit damages for grief and mental anguish

BY MIKE FITZGERALD
News-Democrat
http://www.belleville.com

Metro-east physicians and hospital executives are nervously watching the progress of a legislative proposal to allow juries to award damages to plaintiffs for “grief, sorrow and mental anguish” in wrongful death cases.

A bill setting up this new category of damage awards, in addition to the category already in place for “pain and suffering,” cleared the Illinois House on Friday, and now awaits a vote in the Senate.

Opponents of the measure argue that it would undermine the progress achieved as a result of the tort reform law passed in late 2005. That landmark statute — which caps non-economic damages awarded against physicians at $500,000, and hospitals at $1 million — is credited with the lowering of medical malpractice insurance premiums, resulting in a return of physicians to Illinois, especially hard hit areas such as the metro-east.

State Rep. Tom Holbrook, D-Belleville, was one of only two Democratic downstate House members to vote against House Bill 1798. State Rep. Dan Beiser, D-Alton, was the other one.

“We need to keep our medical community working in our community,” Holbrook said. “We felt we addressed how the legal system was going to treat (doctors) under medical malpractice reform. And we’re not there to reopen it.”

Not only are dozens of physicians returning to the metro-east, but their insurance rates are stabilizing, while new insurance carriers are venturing into the area.

Case in point: Two weeks ago the ISMIE Mutual Insurance Co. — the state’s largest medical-malpractice insurer — announced that its current premium rates will be extended without change for the duration of the new policy year, running July 1, 2007, through June 30, 2008.

ISMIE also announced it would pay an $18.4 million dividend to members as a result of its improved financial situation in the 2005-2006 policy year.

But Joanne Doroshow, executive director of the Center for Justice and Democracy in New York City, contended that House Bill 1798 would have no impact on insurance costs.

“What this does, it is allowing an appropriate kind of damage for a jury to consider that otherwise they’ve been prohibited from doing,” said Doroshow, whose group has been funded in the past by trial attorneys. “It’s not going to have any impact other than to make the victims feel they are more fairly treated under the law.”

Such a law is acutely needed in civil cases involving the deaths of children, for whom it is impossible to make a case for the awarding of economic damages, she said.

“It’s important to allow juries to get through the evidence and make decisions for damages in these kinds of cases,” she said.

Doroshow predicted that the caps on non-economic damages contained in the 2005 tort reform law would take precedence over House Bill 1798 if it is passed into law.

In contrast, Dr. Rodney Osborn, the president of the Illinois State Medical Society, argued that it’s unclear if those caps would still apply in the category of mental anguish.

“We really don’t know how this might be interpreted by members of the judiciary when our current liability cap already covers awards for pain and suffering,” Osborn said.

If House Bill 1798 passes into law, then it’s likely more lawsuits will be filed, insurers will raise their rates and “Once again doctors are going to pack up and leave,” he said. “We’re just concerned about patients’ access to care.”
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