Illinois Supreme Court Eliminates Damages Caps in Medical Malpractice Actions
By Kevin Miller
On February 4, 2010, the Illinois Supreme Court issued its long awaited decision in Lebron v. Gottlieb Memorial Hospital. In doing so, it found unconstitutional the caps on non-economic damages which the Illinois General Assembly had enacted in August 2005. The court’s decision not only lifts any limitation on damages in medical malpractice actions, but affects the handling of professional liability claims in several ways.
In 2005, the Illinois legislature perceived a need to limit damages imposed in medical malpractice actions, and to assist physicians and hospitals in a number of ways in the defense of their professional liability cases. The legislature felt that the ever-increasing trend of rising damage awards in Illinois was encouraging physicians to leave the state, contributing to costs of medical liability insurance and in other ways was endangering the availability of healthcare to Illinois citizens. In August 2005, then enacted Public Act 94-677 which encompassed a number of reforms, including the following:
- It limited non-economic damages (pain and suffering, loss of normal life, disfigurement) in medical malpractice actions to $500,000 against a physician, and $1,000,000 against a hospital;
- It subjected medical malpractice insurers to greater oversight in reporting requirements;
- It created an internet-based system for consumers to check the background of physicians, including a physician’s criminal history, discipline history, or adverse medical malpractice rulings;
- It no longer allowed a plaintiff’s attorney who was filing a medical malpractice action to hide the identity of the physician he was using to certify his case as meritorious;
- It created a rule of evidence which would exclude from evidence in a jury trial a physician’s apology for a bad outcome;
- It created definitive standards for the qualifications of any expert witness in a medical malpractice action; and
- It clarified that even retired physicians are entitled to Good Samaritan Act immunity.
The Act further stated that all of these various provisions were inseverable from each other, meaning that if one provision was found to be unconstitutional and void, then all of the Act’s provisions would fail.
Abigail Lebron and her mother filed a medical malpractice action against Gottlieb Memorial Hospital as well as a physician and nurse, claiming that Abigail sustained a severe brain injury at the time of her birth. The plaintiff sought a judicial determination that the damages caps violated the Illinois Constitution.
Plaintiffs claimed that the limitations on damages violated the Separation of Powers Clause of the Illinois Constitution (SPC). The SPC, of course, acknowledges three branches of government (Executive Branch, Legislative Branch, and Judicial Branch) and provides that no one branch may impermissibly encroach upon the inherent power of the others. Plaintiffs pointed out that the judiciary has the inherent power to change a jury verdict in favor of the plaintiff where that verdict is excessive and contrary to the evidence. This judicial action is commonly known as “remittitur.” Where the legislature enacts a law that requires the reduction of a jury verdict to limit it to $500,000 or $1,000,000 for non-economic damages, that law essentially acts as a legislative remittitur, impermissibly encroaching upon the inherent power of the judiciary to correct jury verdicts.
The Illinois Supreme Court agreed. It therefore found the damages caps unconstitutional, violating the SPC. As such, all of the reforms enacted by PA 94-677 have now been overturned.
Some have called the action of the Illinois Supreme Court a politically partisan decision. Of the seven justices on the Illinois Supreme Court, the action taken to declare PA 94-677 unconstitutional was done by four Democrat justices. Of the three Republican justices on the Court, two dissented from the decision, claiming it was erroneous to construe this legislation as unconstitutional, and the remaining Republican justice took no part in the written decision.
Insurance experts have been quick to respond to the Court’s decision, claiming that striking the damages caps and removing reforms on the medical malpractice liability insurance industry will have an immediate effect on insurance rates, driving them up significantly. Hospitals and physician groups who had adopted procedures involving an apology to patients for bad outcomes will have to rethink their decisions. In medical malpractice actions, plaintiffs’ attorneys will find it easier to certify their cases as meritorious, as they may once again use an anonymous physician to complete that requirement. Furthermore, at trial plaintiffs will no longer be bound by stricter standards for expert witnesses. Of course, physicians and hospitals are most greatly affected in their decision of whether or not to go to trial: Illinois once again allows an unlimited amount of damages to be awarded in the appropriate case.
Will the Legislature Give Damages Caps Another Try?
That remains to be seen. Tort reform provisions are often discussed in the legislature, but have proven difficult to pass. For example, before the medical malpractice reform in 2005, the last significant tort reform enacted by the Illinois General Assembly was passed in 1995, a ten-year interval.
One state senator has introduced a proposed amendment to the Illinois constitution which would allow the legislature to seek to pass laws with damages caps. If the proposed constitutional amendment would make its way through both houses of the legislature successfully, it could be voted on in November of 2010. Most political analysts, however, think that such a constitutional amendment is a longshot.
At least for now, Illinois will not allow any limits on the recovery in a medical malpractice action.
Originally published in the Spring 2010 edition of Quinn Quarterly.