Controversy over medical suit caps continues

By Christy Gutowski | Daily Herald Staff

The debate regarding limits on medical malpractice awards is heating up again after a Cook County judge struck down a law capping certain damages for patients.

At issue is the system in which Illinois holds medical professionals accountable.

Illinois used to have a lawsuit-friendly reputation. Doctors and other providers argue high insurance costs, fueled by large jury awards, forced them out of Illinois, which limits patient access to health care.

But, on the other side, plaintiff lawyers and victims said caps interfere with their right to compensation.

In search of a middle ground, a 2005 state law was enacted that narrowly limited malpractice awards for non-economic damages, which jurors award for pain and suffering. The limit is $1 million for hospitals; $500,000 for physicians.

There still isn’t a ceiling for damages regarding medical care and lost wages, which typically make up the highest part of the award.

Since the law went into effect, 5,000 more doctors became licensed in Illinois, and 10 medical insurance insurers dropped their rates by 5 to more than 30 percent, according to state data. The number of new malpractice lawsuits also declined.

But a Nov. 13 court ruling has doctors worried their insurance rates could climb again. Cook County Circuit Judge Diane Larsen ruled the state law on malpractice caps was unconstitutional because it interferes with the right of judges and juries to determine compensation.

The Illinois Supreme Court will decide the issue. But, given that Larsen’s ruling falls in line with a 1997 high court decision rejecting an earlier cap law, defense lawyers in professional liability cases aren’t optimistic.

Still, the Illinois Defense Council, American Medical Association and Illinois Hospital Association are waging a fierce fight.

Attorney Dina Torrisi, who defends hospitals and medical providers, said the ruling also compromises patient care in that it limits access to doctors, in particular certain specialists, such as obstetricians, who were especially hard hit by rising costs.

“Since the law, there has been a decrease in filings of medical malpractice cases,” said Torrisi, a partner at the Hepler Broom law firm in Chicago. “Simultaneously, physicians have reported a decrease in their malpractice premiums. So, there seems to be a connection.

“This is important to the public because (with the caps) doctors can continue to practice here.”

But critics of the law said other factors are at play for why doctors fled. The Illinois Trial Lawyers Association and plaintiff lawyers said doctors were pinched by a cyclical increase in insurance rates and poor business practices by insurers, not lawsuits.

Now that insurers are more tightly regulated, as part of the new law, they contend rates are dropping.

“Malpractice insurance companies have been making more than enough in profits,” said Keith Hebeisen, an attorney with Clifford Law Offices, also in Chicago. “The real solution to doctors’ malpractice premiums being too high is stricter regulation of insurance companies.”

Recently, Hebeisen convinced a DuPage County jury to award a record $12 million verdict to a Warrenville couple after they found a doctor’s negligence likely led to their son’s brain damage at birth.

Many states, including California and Texas, have medical liability cap laws that survived legal challenges. In Illinois, two earlier cap laws were struck down, but the 2005 measure was written more narrowly.

It’s unclear when the Illinois Supreme Court will rule.

Record-setting jury verdicts

• Cook County: $387.4 million awarded last year for a 2001 fire at the Citgo Refinery in Lemont, which was traced to a defective pipe elbow.

• DuPage County: Warrenville couple awarded $12 million in October in medical malpractice case against their doctor for the Dec. 23, 1999, delivery of their son, who suffered brain damage.*

• Kane County: A couple awarded $17 million last year in this medical malpractice case against Provena St. Joseph Hospital in Elgin and a registered nurse after her error led to a permanent brain injury for a woman being treated for toxic shock syndrome.

• Lake County: A couple awarded $23.3 million in 2004 in a medical malpractice case against Provena St. Therese Medical Center in Waukegan for the Jan. 8, 1998, delivery of their son, who suffered brain damage.

• Will County: Children were awarded $8.3 million in 2002 against a trucking company after one of its drivers struck and killed their mother July 23, 1999, at a Joliet intersection.
see original