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Medical Malpractice Legislation Introduced

By Kevin M. Miller

This spring we have seen a few pieces of legislation enrolled for consideration in the Illinois General Assembly and in Congress that could effect the handling of medical malpractice claims in Illinois. 

At the state level, HB-5151 does two things.  First, it re-enacts and repeals various statutory provisions that in the past amended Section 2-622 of the Illinois Code of Civil Procedure.  Section 2-622, of course, is the provision that requires a plaintiff’s attorney in a healing art malpractice action to consult with a healthcare professional who has determined that there is a reasonable and meritorious cause for the filing of a lawsuit.  May the consultant’s report be filed anonymously?  Does a prior voluntary dismissal effect the ability to refile?  Amendments to Section 2-622 and rulings on the constitutionality of those amendments were addressed in cases such as Best v. Taylor Machine Works and LeBron v. Gottlieb Memorial Hospital, leaving everyone wondering what the surviving portions of Section 2-622 really said.  HB-5151 seeks to straighten this out.

In Congress, the Standard of Care Protection Act (H.R. 1473) would mandate that  guidelines adopted in federal healthcare programs may not be used to establish a standard of care in a malpractice action brought in state court. The bill, if enacted, would assure that the failure to follow national guidelines created in health laws would not be used as a claim of breach of standard of care.  The bill would ensure, for example, that a patient with a hospital-acquired condition would still have to prove a provider’s negligence in causing that condition, rather relying on the mere existence of the condition as proof of negligence. A similar provision is already in place and applicable to the failure to follow guidelines set out in the Affordable Care Act, but to date there is no similar provision with respect to Medicare or Medicaid.

Neither bill has been fully enacted yet.  We will continue to monitor progress of both bills through the legislative process.

Originally published in the Spring 2013 edition of the Quinn Quarterly.