Illinois State Medical Society optimistic that med mal caps law will be upheld

By ALAN J. ORTBALS
http://www.ibjonline.com/

The gains that Illinois has made in the past three years regarding access to health care could quickly be reversed, depending on the ruling of the Illinois Supreme Court in the case of Lebron v Gottlieb Memorial Hospital.

Oral arguments were heard in November. The decision is expected to be handed down sometime next year.

At issue is the constitutionality of Illinois’ Medical Liability Reform Law that was passed by the state legislature in 2005.
Illinois faced a crisis situation in 2004 as soaring medical malpractice insurance rates were forcing doctors – particularly specialists such as neurosurgeons and OBGYNs – to leave the state.

The Illinois General Assembly reacted to the crisis by passing legislation designed to comprehensively attack the problem. The bill set higher bars on who could sign the affidavit of merit and who could appear as expert witnesses in medical malpractice cases. It opened up the books of ISMIE Mutual Insurance Co., the state’s largest medical malpractice insurance provider, in order to encourage more competition; and it took steps to deal with doctors who were repeat offenders. It also set caps on non-economic damages, also referred to as pain and suffering.

It is this caps clause which is the focus of the Supreme Court challenge.

Caps on non-economic damage awards in medical malpractice cases have been enacted by the Illinois legislature twice before and struck down by the high court in each instance as unconstitutional. Specifically, the court found in both the case of Wright v Central DuPage Hospital in 1976 and Best v Taylor Machine Works in 1997 that caps violate the separation of powers clause and the special legislation clause of the Illinois Constitution. Attorneys for the defendants, however, argue that this legislation is different and should be upheld.

“Unlike the Civil Justice Reform Act of 1995, this was not a tort reform statute,� said Gary Feinerman, an attorney representing Gottlieb Memorial Hospital. “This was a healthcare statute. Here the General Assembly was looking to remedy a healthcare crisis. Some of the witnesses said, ‘It’s the doctor’s fault.’ Other witnesses said, ‘It’s the insurance company’s fault.’ The insurance companies and the doctors came in and said, ‘It’s the plaintiffs’ lawyer’s fault. And the General Assembly said, ‘You know what? You’re all a little bit right. We’re going to have greater insurance regulation to make sure that there’s more competition. We’re going to have greater regulation of physicians to make sure to reduce bad medical outcomes, which in turn cause medical malpractice premiums to rise. And we’re going to fix those components of the medical malpractice litigation system that caused the most problem for insurers.’ In each instance, they focused on the root of the problem,� Feinerman said dramatically. Again, there’s been no change in the payouts. But because they had to disclose what they were paying out by category of physician, other insurance companies then began coming into Illinois. Competition is what drove the rates down.�

A spokeswoman for ISMIE, though, says that looks are deceiving. She said that premiums are set based on past experience and on future projections of payouts. In this case, actuaries were looking at jury awards that were much higher and premiums were raised because ISMIE forecasted that claims were going to continue to be higher in the future.

Gottesman says that whether the Medical Liability Reform Act was comprehensive or not doesn’t make any difference. It is clearly a violation of the constitution in that it allows the legislature to take away powers of the judicial branch. Specifically, the judge in civil cases has the right of remittitur – the right to overrule the jury and reduce an award if he doesn’t believe the facts of the case support such an amount.

“This is really an indictment of the courts,� said Gottesman, “because if trial lawyers somehow persuaded a jury to award more money than the plaintiff deserves, the court is expected to reduce it to the level that the evidence would support. So, if they’re complaining that awards are too high, what they’re saying is either one of two things. One, doctors are inflicting a whole lot of injury, or, two, the court isn’t doing its job in reducing the damages to the amount that the evidence supports.�

Gottesman also says that the law has another conflict with the constitution in that it is special legislation. Specifically, the legislature set limits on awards in medical malpractice cases but not other types of civil cases.

If the court finds that the caps provisions of the law are unconstitutional, then the entire law will be nullified, according to Gottesman. He says the legislature could come back and pass a law that adopts the other provisions without caps.

But Illinois State Medical Society President Shastri Swaminathan M.D. insists that caps are fundamental to bringing down insurance rates. He said that Texas, for example, has instituted caps alone – making no other changes – and that it’s been able to recruit 4,000 new doctors in just the past few years.

“About 70 percent of doctors trained in Iowa in OBGYN stay in Iowa,� Swaminathan said. “In Illinois, it’s less than 30 percent. People who train in prestigious universities like Northwestern, the University of Illinois and Loyola end up going to Iowa or Texas or Indiana or Wisconsin. We lose them. They have a choice when they graduate. They have a huge debt and they say, ‘Hey, wait a minute. If I’m going to pay twice the amount of malpractice in Illinois as opposed to going 100 miles further west, why would I want to stay here?’ We lose them,� he said.

Swaminathan says that the law has made a significant difference in Illinois and that he thinks people are much more in tune with the problem now. He also says he thinks this is a much better law than the one that was passed in 1995.
“We’re a lot more optimistic now than they were 10 years ago,� he said.

see original

About