On Medical Liability Reform – the People Have Spoken

by Curt Mercadante

It’s been two years since the Illinois voter uprising that forced the Illinois legislature – and governor – to enact medical liability reform legislation.

Yet the full positive impact of those reforms has yet to be felt – due to uncertainty pending the trial lawyers’ challenge of the measure’s constitutionality in court.

Needless to say, the trial lawyer challenge was anticipated as soon as the governor’s pen signed the reforms into law. On November 20 of last year, the challenge finally came – in the form of a case filed in the Circuit Court of Cook County seeking to challenge the cap on non-economic damages ($500,000 for physicians and $1 million for hospitals.)

To be sure, the reforms have begun to work. According to a recent Crain’s article, “a number of (medical liability insurance) companies have cut rates in recent months, and new insurers are moving into Illinois after soaring malpractice claims chased many out five or six years ago.”

In addition, ISMIE Mutual Insurance Company, which provides malpractice coverage for 13,000 doctors, recently announced that it might add up to 400 new physician policyholders this year – four years after soaring medical malpractice insurance rates forced the company to stop accepting new business.

The plaintiffs’ bar, however, wants to turn back the clock on this progress. No doubt emboldened by the Illinois Supreme Court’s blockage of similar reforms in 1997, the trial lawyers are determined to protect their profits at the expense of Illinois families’ access to quality, affordable health care.

Despite progress, the uncertainty caused by the trial bar’s challenge has not allowed the state to climb fully out of its medical liability crisis. Lest we forget the full extent of the crisis, we should remember that just a few short years ago, all of southern Illinois was left without a single neurosurgeon; many pregnant women still are forced to travel to Missouri, Wisconsin or Indiana just to find an OB-GYN; Illinois doctors still pay as much as $100,000 more per year in medical liability insurance premiums than doctors in neighboring states.

The trial bar, however, is in a state of denial. They try to cast blame on everyone from the insurance industry to the doctors themselves. They try to hide the fact that many states have had successful medical liability reforms for years.

In California, for instance, the gold standard of medical liability reforms has been in place since 1975. While the reforms did not result in immediate rate reductions – medical liability premiums in that state have risen at a much slower rate than the rest of the country. According to the National Association of Insurance Commissioners, while total premiums in the rest of the U.S. rose 1011% between 1976 and 2004, the increase in California premiums was only 309% over the same time period.

In Ohio, due to reforms enacted in 2003, the premiums of the five major state liability carriers rose only 6.7% in 2005, compared with a 20% raise in 2004, and a 30% increase in 2002.

In Texas, where comprehensive reforms have been passed in recent years, the largest medical liability insurers have slashed rates, and more than 3,000 new physicians came to the state.

Furthermore, numerous state courts, including Alaska, California, Colorado, Idaho, Maryland, Michigan, Minnesota, Missouri, Nebraska, Utah, Virginia, and West Virginia, have upheld legislation for caps on non-economic damages.

Bottom line – medical liability reforms work and there is precedent for them being ruled constitutional.

So why are the trial lawyers fighting these reforms so aggressively? Why did one trial lawyer I spoke with last week refer to them as “tort deformâ€?? Why did the president of the Illinois Trial Lawyers Association recently declare a “crusade” against those who support civil justice reform?

Because it’s about protecting an Illinois medical liability system in which tort costs for medical-malpractice liability are a greater share of Illinois’ economy than of any state’s save New York’s.

It’s about protecting an American medical liability system in which 75% of medical liability claims do not result in any payments to patients.

Don’t be fooled by the national trial lawyer association’s advocacy Web site, “People over Profits.” To those trial lawyers who fight against common sense reforms, it’s about profits, not people.

And the people of Illinois have spoken. They support reforms that bring fairness and common sense to our lawsuit system. They support medical liability reforms that protect due process for all Illinois citizens – plaintiffs as well as defendants.

The people have spoken. Now we await for this challenge to get to the Illinois Supreme Court for the ultimate decision.
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