Judge tosses IL hospital group's suit on medmal caps

By Mike Colias
http://www.chicagobusiness.com

A Cook County judge has thrown out a request from the hospital industry to declare Illinois’ limits on payouts to victims of medical malpractice constitutional.

Circuit Judge Robert Lopez Cepero on Tuesday dismissed the unusual legal maneuver by the state’s hospital lobby, which had hoped to secure a decision from the judge – and eventually from the Illinois Supreme Court – backing the validity of the state’s $1-million limit on jury awards for pain and suffering, which took effect in 2005.

In September, the family of a 71-year-old man sued Advocate Trinity Hospital on the South Side, claiming the medical staff failed to monitor bed sores that eventually contributed to his death. Advocate denies wrongdoing.

The hospital filed a counter suit, with the help of the Illinois Hospital Assn. (IHA), asking the judge to declare the state’s caps on non-economic damages constitutional.

IHA was hoping for a speedy ruling on the issue. Hospitals and doctors believe that insurance companies won’t get relief from high malpractice insurance rates until the state’s Supreme Court backs the constitutionality of the new law. Insurers are leery it may be struck down as has happened twice before.

But the plaintiff in the Advocate case never said he would seek damages above the caps – a fact the judge cited in dismissing Advocate’s counter suit.

“The judge correctly ruled that no constitutional challenge was being made in our case,� plaintiff’s attorney Steven M. Levin said. “For whatever reason I think Advocate had chosen what it felt to be an appropriate case to advance the position of the hospitals.�

Mark Deaton, general counsel for the IHA, said Advocate is determining whether it is able to appeal. An attorney for Advocate did not return a phone call.

“This seemed like a good approach to accelerate a ruling,� Mr. Deaton said. “The sooner we can get a ruling from the courts on the constitutionality, the better, because insurance companies are waiting for that clarity.�

Meanwhile, Illinois trial lawyers in November filed a separate medical-malpractice case asking the circuit court to declare the caps unconstitutional. The plaintiff in that case alleges that a doctor at Gottlieb Memorial Hospital in west suburban Melrose Park botched the delivery of her daughter in October 2005, leaving the baby with irreversible brain damage.

Trial lawyers have said the plaintiff deserves damages “well in excess� of the $1 million limit. The trial bar hopes to speed that case to the state Supreme Court for a ruling on the constitutionality of the new law, which also includes a $500,000 cap on non-economic damages in lawsuits against individual doctors.
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