Illinois' med mal law on trial

By Terry Hillig

A lawsuit testing the constitutionality of Illinois’ medical malpractice reforms is expected to come before the state’s Supreme Court this fall — and with it the very real possibility that the law will be nixed.

State Sen. Bill Haine, D-Alton, was one of the leaders in a long bipartisan effort to draft the legislation, which was approved after dozens of doctors fled from the Metro East area due to spiraling malpractice insurance premiums. If the law is thrown out by the courts, Haine said, the issue would wind up back in the Legislature and, depending on how the court rules, new efforts to solve the problems might be even tougher than those in the past.

“It would be a long, nasty slog,” Haine said. “I’m not looking forward to it.”

Arguments before the high court have not been scheduled but could come as early as next month.

At least twice before and most recently in 1997, the Supreme Court has declared laws that limit personal injury awards to be unconstitutional, partly on grounds they violate the separation of judicial and legislative powers.

Only one of the seven current justices — Democrat Charles E. Freeman — was on the court in 1997 when it struck down a 1995 law that included a $500,000 limit on awards for noneconomic injuries. There was only one dissent among the six justices who participated in that decision, and Freeman was with the majority. Just as in 1997, the present court consists of four Democrats and three Republicans.

The state law shaped by Haine and other legislators was enacted in 2005 — and written in the hope of avoiding objections raised by the court earlier. It limits medical malpractice awards for noneconomic damages such as pain and suffering to $500,000 for doctors and $1 million for hospitals. The law does not, however, limit compensation for economic damages — the cost of medical care, lost wages and the like.

At the time, Illinois was wracked by a medical malpractice crisis and the Metro East counties of Madison and St. Clair were at the center of the storm.

Doctors, worried about lawsuits and stunned by soaring malpractice insurance premiums, were retiring early or moving to other states or Illinois counties where insurance was less costly. The two counties lost nearly 200 doctors by some accounts. Malpractice premiums for neurosurgeons hit more than $246,000 in 2004; obstetrician-gynecologists paid more than $147,000.

Even President George W. Bush took note, visiting Collinsville in January 2005 to tout medical liability reforms to an audience of health care providers. Other Illinois counties also were affected, though less dramatically.

Now, Metro East health care providers say the exodus of doctors has stopped and has, to some extent, been reversed. ISMIE Mutual, which insures a majority of Illinois doctors, announced recently it will hold premiums steady for the second year in a row. The firm cited a “stabilizing legal environment.”

Dr. Harold Jensen, chairman of ISMIE Mutual, said filings of medical malpractice lawsuits are down about 25 percent and that the company has seen significant improvement in loss experience under the new law. He said the company lowered premiums an average 5.2 percent in 2006 and has returned dividends to policyholders two years in a row.

The thought of a return to the previous state of affairs is frightening, Jensen said.

“We’d be back in the swamp we were in before,” he said,

Of course, opinions differ on reasons for the recent crisis and on the impact of the law.

Philip Corboy Jr., president of the Illinois Trial Lawyers Association, said it was an insurance crisis rather than a litigation crisis. Corboy said filings of medical malpractice lawsuits had been declining for several years before the new law. He said ISMIE needed higher rates to compensate for bad investments.

And Michael McRaith, director of the Division of Insurance in the state’s Department of Financial and Professional Regulation, said he thinks other reforms in the law were more important than damage caps in bringing down rates.

Among other changes, the law allows state regulators to gather and make public the actuarial data used by medical malpractice insurers.

“For the first time in the history of this state, insurance companies that want to compete for business in Illinois have access to actuarial information and loss and claims data,” McRaith said. “We see more companies coming in and a stabilization or decline in actual rates.” He said the law also requires public hearings for proposed rate increases that exceed 6 percent.

“The prospect of a hearing is a deterrent in itself,” McRaith said.

The case that could overturn the law originated in Cook County. It was filed by Frances LeBron, whose daughter Abigaile was seriously injured at birth in October 2005. The girl suffers mental impairment and cerebral palsy and will need round-the-clock care for the rest of her life, the lawsuit alleges.

In November, Cook County Circuit Judge Diane Larsen sided with plaintiffs and declared the law unconstitutional and invalid in its entirety. She said the statutory limits on awards interfered with juries’ authority to award appropriate compensation for injuries. | 618-624-2526

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