FOR IMMEDIATE RELEASE:
February 7, 2004

FOR INFORMATION CONTACT:
Kelley Elwood, 312-580-6497; 312-608-3620
Suzanne Nelson, 312-580-2443; 847-302-7920

STATE’S PHYSICIANS TO LAWMAKERS: FIX THE BROKEN LEGAL
SYSTEM NOW; STOP THE EXODUS OF DOCTORS!
Medical Society Proposes Comprehensive Legal System Reforms

Chicago – Illinois physicians today announced introduction of sweeping reform legislation to fix the state’s broken legal system and restore cost stability and patient access to medical care. Crafted by the Illinois State Medical Society, the Medical Liability Crisis and Access to Care Law of 2004 confronts head-on the harsh excesses of medical liability lawsuits that have forced doctors to leave the state, stop offering complex medical procedures, retire early and limit their practices in myriad ways.

Senator Kirk Dillard (R-Hinsdale) serves as sponsor of SB 2777 (omnibus bill) through SB 2786; Republican Leader Tom Cross (R-Oswego) is the House sponsor of HB 6545 (omnibus bill) through HB 6554.

“These are desperate times for physicians and patients in many quarters of Illinois. After years of substantial investment in medical advances and better access to care, some communities are now facing almost catastrophic scenarios: loss of high-risk specialists able to treat trauma patients; shutdown of certain surgical services; long waits and absence of obstetrical care, to name a few. We must take action now to restore reason to the legal process, or watch hard-won medical progress slip away,” said ISMS President, William E. Kobler, M.D. “The problem has been diagnosed; it’s up to the General Assembly to treat it – swiftly and effectively.”

The ISMS-backed reform components, as detailed in the attached fact sheet, address three problems caused by an out-of-control legal climate: lack of access to medical services; the growing number of frivolous lawsuits; and weak rules governing information disclosure to juries and qualifications of “experts” who testify in lawsuits.

To preserve access to medical care, the legislative package offers several remedies. These include good faith immunity for physicians and others who provide emergency or trauma care, and for those who work in federally qualified health centers serving patients where there is an acute shortage of medical personnel. Further, Medicaid reimbursement increases, state grants to help physicians pay skyrocketing liability premiums, and a state-funded loan repayment initiative for new doctors here – all are aimed at preserving medical practices and the availability of care in communities statewide. The bill also strengthens arbitration as a cost-effective way to resolve disputes.

“All these components are vital to keeping doctors in Illinois and actively caring for patients,” emphasized Dr. Kobler.

“Our reform package targets waste in the legal system by clamping down on meritless lawsuits,” Dr. Kobler continued, “so that truly injured patients can see justice quickly and be fairly compensated.”

According to ISMIE Mutual, the state’s largest insurer of medical liability for physicians, over 80 percent of all medical liability claims are closed without any payment to the plaintiff. Yet, substantial monies and time are squandered on these cases.

“Frivolous lawsuits are bankrupting the health care delivery system, and we must fight to stop them for the sake of all the patients of this state.”

The Medical Liability Crisis and Access to Care Law of 2004 also improves and fortifies current rules governing information disclosure to juries and the qualifications of “experts” who testify for either party in a lawsuit. Jurors would be informed that liability awards are not taxable. Experts testifying in medical liability lawsuits would face stricter standards in order to qualify
before the court.

While caps on non-economic damage awards are not part of this reform package, Illinois physicians remain committed to achieving them at the federal or state level in the future.

“Caps are the single most effective solution,” said Dr. Kobler. “Several states have enacted them in some form, and they have held down costs while fully and fairly compensating injured patients. Our neighboring states – Indiana, Missouri and Wisconsin – have much lower premiums precisely because they have caps,” he noted. “Twice, the Illinois Supreme Court has rebuffed the case for caps. Our current reform proposal is not a substitute, but a step along the way toward that ultimate goal.”

“We encourage the General Assembly – in the strongest possible terms – to enact real reform of the caliber contained in the omnibus SB 2777, HB 6545 and their individualized companion measures,” said Dr. Kobler. “Don’t be swayed by artificial solutions that will only further worsen the liability landscape,” he cautioned. “It’s not insurers’ stock market losses, insurance practices or ‘bad’ doctors. It’s a legal system run amok. Illinois is on the brink of catastrophe, and we are depending on our lawmakers to step up to the challenge.”

FACT SHEET

Elements of the Medical Liability Crisis and Access to Care Law of 2004

Preserve health care access

• Enact good faith immunity for physicians and other health professionals who provide emergency department or trauma center care.

• Expand free clinic good faith immunity for health care professionals so that it applies to volunteers in federally qualified health care centers.

• Amend the Health Care Arbitration Act to eliminate mandate that patient reaffirm an arbitration agreement at discharge from a hospital or a doctor’s care; reduce alternatives for revocation to 60 days after discharge or last date of treatment; and establish that the arbitration agreement is valid for 10 years instead of 2 years.

• Amend current law to expand the state grant program that awards money for professional liability premiums to apply to all physicians statewide. ISMS will press aggressively in the General Assembly for adequate funding of this initiative.

• Create a state-funded loan repayment program that will pay the entire amount of a physician’s student loan up to a maximum of $25,000. This will help recruit new physicians to Illinois.

• Require the Medicaid payment rate for all physicians to be increased to equal the Medicare rates over a three-year period.

Reductions in Unmerited Lawsuits

• Prohibit any more than one 90-day extension for the filing of a certificate of merit.

• Require that the name and address of the physician supplying a consulting report for a certificate of merit be stated.

• Increase the minimum qualifications for physicians supplying a consulting report, so that they must meet the same qualifications as expert witnesses.

• Establish legislative criteria for the court to use in determining whether one party is the agent of another party.

• Provide immunity for a physician’s or health professional’s statements or communications of apology for inadequate or unanticipated treatment or care outcomes, such as saying you are “sorry” for the outcome.

• Limit voluntary dismissals and prohibit the re-filing of suits after voluntary dismissal, if beyond statute of limitations.

• Amend the Wrongful Death Act to prohibit filing of an action if a similar action was filed and dismissed while decedent was alive.

Increased Information – witnesses, jurors, plaintiffs

• Require that qualifications for expert witnesses in malpractice litigation be increased so that any expert witness is board certified or board eligible in the same medical specialty as the defendant; is familiar with the medical issues alleged in the lawsuit; has devoted 75% of his or her time to the practice of medicine, teaching or university based research in relation to the medical care and type of treatment at issue; and, if retired, must provide proof of completion of continuing education courses for three years previous to giving testimony.

• Require the court to instruct juries that awards of compensatory damages are not taxable.

• Clarify definitions of “economic and non-economic damages.”

• Revise the Petrillo Doctrine to clarify that a physician can disclose patient-specific information to his or her lawyer, insurance carrier, and present and past employers.

• Amend Mental Health and Developmental Disabilities Confidentiality Act to clarify that a physician can disclose patient-specific information to his or her lawyer, insurance carrier, and present and past employers.

Other

• Require the Director of Insurance to create a Professional Liability Insurance Resource Center including contact information for all companies and brokers providing professional liability insurance.

• Require the Director of Insurance to conduct a study of the effect of this legislation on the market.

Revised and Corrected February 9, 2004

THE CASE FOR CAPS

ISMS continues to support a $250,000 cap on non-economic damage awards as the single most effective solution to the medical liability crisis in Illinois. Patients would continue to receive full compensation for all economic losses, such as past and future wages, all related medical expenses – everything injured patients need for their future care

Liability Insurance Premiums
Illinois vs. States with Caps

www.isms.org

www.realitymedicine.com

The Illinois State Medical Society represents over 14,000 physicians statewide practicing in all specialties.
Dr. Kobler is a board-certified family physician practicing in Rockford, IL

Twenty North Michigan Avenue, Suite 700 Chicago, Illinois 60602 Telephone: 312-782-1654 Toll Free: 800-782-ISMS Fax: 312-782-2028