FOR IMMEDIATE RELEASE:
April 7, 2004

FOR INFORMATION CONTACT:
Kelley Elwood, 312/580-6497
Elizabeth Morgan 312/853-6528

Closing in on a Solution: State Medical Society Legal Reform Package
Receives Bipartisan Support in the Illinois Senate

Chicago – In an unprecedented display of bipartisan support, several Illinois Senate Democrats have introduced proposals aimed at curbing the devastating medical litigation crisis that continues to threaten access to vital health care services in Illinois. These amendments, based upon the Illinois State Medical Society’s (ISMS’) comprehensive medical litigation reform package, offer balanced solutions to preserve patient access to medical care and ensure that affordable health care services are available in all corners of the state.

“Negotiations across party lines represent a giant step forward in developing fair solutions to the medical litigation crisis,” stated ISMS President William E. Kobler, M.D. “Frivolous litigation and skyrocketing jury awards are forcing many physicians to flee Illinois, limit services or exit the medical profession all together, leaving pockets of Illinois without access to high-risk specialty services, trauma centers and certain surgical procedures. These amendments will help rein in excessive litigation.”

Senator James Clayborne Jr. (D-Belleville) sponsored a floor amendment that includes 10 components.

Among them are provisions that would discourage frivolous lawsuits by strengthening the certificate of merit requirements, enhance medical discipline and increase expert witness qualifications (see attached fact sheet for more information). Senators Lawrence Walsh (D-Joliet), William Haine (D-Alton), Gary Forby (D-Benton) and Denny Jacobs (D-Moline) have signed on as co-sponsors to Senator Clayborne’s amendment.

In an effort to keep medical services available for our state’s most vulnerable patients, Senator Haine filed a separate amendment to relieve some of the financial burden that escalating costs of medical liability insurance pose for physicians. Senator Clayborne has voiced his support of the amendment, and Senators Jacqueline Y. Collins (D-Chicago), Mattie Hunter (D-Chicago), Forby, Walsh and Jacobs have signed on as co-sponsors.

Although caps on non-economic damages are not included in this medical liability reform package, ISMS maintains that caps are the single most effective solution. “I would personally like to thank these Illinois Senators for taking a step toward restoring balance in the legal system to help preserve Illinois’ health care system,” stated Dr. Kobler. “Republicans and Democrats should share the same goal – ensuring affordable and available medical care for all Illinois citizens.”

For more information about ISMS’ medical litigation reform legislation, visit www.realitymedicine.com.

www.isms.org

ISMIE Mutual Insurance Company is the largest insurer of medical malpractice risk for Illinois
physicians. Since the company’s inception in 1976, it has been policyholder-owned and operated.

Medical Liability Crisis and Access to Care Law of 2004

The Medical Liability Crisis and Access to Care Law of 2004 is an initiative of the Illinois State Medical Society (ISMS) that offers a balanced approach to address the current medical liability and litigation crisis in Illinois. The language includes provisions that:

1. STRENGTHEN THE AFFIDAVIT OF MERIT – In order to file a medical malpractice suit in Illinois, the plaintiff’s attorney must file an affidavit of merit. The affidavit, in theory, acts as a threshold for filing because it verifies that the plaintiff’s attorney has consulted with a health care professional about the facts of the case and that the professional has determined there is a “reasonable and meritorious cause” for filing. However, in some instances the consulting
   professionals are not qualified to determine whether a suit is reasonable and meritorious. ISMS believes that the name and address of the professional should be stated on the affidavit so that professionals may be held accountable for their determinations. Physicians who review the records would be required to meet expert witness requirements outlined in Section 8-2501 of the Code of Civil Procedure.

2. PROTECT PHYSICIANS’ PERSONAL ASSETS – Physicians generally maintain insurance coverage for healing art malpractice. Because of skyrocketing awards, physicians are increasingly pressured to settle lawsuits even when they believe that they have not committed any negligence. The language limits the plaintiff’s recovery to the amount that is covered by the physician’s professional liability insurance provided that the physician maintains at least $1 million in insurance coverage per occurrence and $3 million in the aggregate. Corporate assets may be attached for satisfaction of a judgment.

3. INCREASE THE QUALIFICATIONS OF EXPERT WITNESSES – Expert witnesses are important in medical malpractice suits to establish whether the standard of care has been maintained or breached. Current law provides low standards to be met to qualify as an expert witness, and courts interpret the section broadly, which results in inaccurate testimony and the pursuit of nonmeritorious claims. In order to limit frivolous lawsuits, ISMS proposes that the qualifications required to act as an expert witness be strengthened so that:

• Expert witnesses are board certified or board eligible in the same medical specialty as the defendant;

• Experts are familiar with the medical issues alleged in the lawsuit;

• Experts devote 75 percent of his or her time to the practice of medicine, teaching, or research; and

• Retired experts prove completion of continuing education courses for three years prior to giving testimony

4. INFORM JURIES OF THE TAX CONSEQUENCES OF AWARDS – The language also requires that jurors be informed that the plaintiff will not have to pay taxes on any award. ISMS believes that awards are sometimes inflated by juries who mistakenly assume that all of an award may be taxed, leaving less for the plaintiff. Clear jury instructions will make jurors aware of the tax consequences in order for there to be a fair and equitable assessment of what to award.
   

5. REMOVE HURDLES FROM THE HEALTH CARE ARBITRATION ACT – Arbitration may be an effective tool used to resolve disputes outside of the judicial system. As a general rule, arbitration appears to cost less than litigation because arbitrated matters are resolved more quickly than those heard before a judge or jury. Arbitrators also typically have more knowledge in technical fields than the average juror, which may lead to a more accurate assessment of a dispute's legitimacy. ISMS proposes minor changes to make the Health Care Arbitration Act more user-friendly. First, the requirement that a patient reaffirm an arbitration agreement at discharge is eliminated. Second, the agreement may be revoked at any time up to 60 days after discharge or the last date of treatment. Lastly, an agreement is valid for 10 years instead of two. The changes should make arbitration agreements easier to use as tools to resolve disputes outside of the court system.

6. ALLOW PHYSICIANS TO SAY “I’M SORRY” – The current litigation climate in Illinois is so severe that it has resulted in a chilling effect, preventing some physicians from commenting on unexpected outcomes in any situation. Physicians are by nature compassionate individuals. ISMS proposes that physicians be allowed to express any grief, apology, or otherwise say “I’m sorry” for the outcome of services, without that statement being used against them in the future. This is similar to current Illinois law that allows for the payment of an injured patient’s medical bills without such payment being construed as an admission of any liability. This language merely extends the limited immunity to statements of grief.

7. CREATE THE PROFESSIONAL LIABILITY INSURANCE RESOURCE CENTER – In order to facilitate access to professional liability insurance across the state, the language creates the Professional Liability Insurance Resource Center, which is envisioned to be a tool that would provide easy electronic access to contact information for professional liability insurance companies and brokers. Information would be disseminated via an internet site administered by the Department of Insurance and could be accessed by physicians or the general public. The measure would also require the Department of Insurance to study the affordability of and access to professional liability insurance.

8. ENHANCE MEDICAL DISCIPLINE – The Medical Liability Crisis and Access to Care Law of 2004 gives the Department of Professional Regulation greater ability to investigate physicians. The number of investigators would be increased from at least one full time investigator per 5000 physicians to at least one full time investigator per 3000 physicians, plus additional investigators at the discretion of the Director. It also extends the statute of limitations for the Department to investigate allegations of a pattern of practice. Finally, the period of time is doubled during which the Department may begin formal disciplinary proceedings arising out of a negligence suit in which the plaintiff prevails.

9. REQUIRE THE REPORTING OF JUDGMENTS AND SETTLEMENTS – In order to create a more complete medical liability database within the Department of Insurance, the language requires that all judgments and settlements filed with the clerks of the circuit court shall be reported to the Director on a monthly basis. The information must include the names of the parties, the attorneys, verdict/judgment information, remittitur amounts, and attorney’s fees.

10. ADDRESS STRUCTURED SETTLEMENT ANNUITY EVIDENCE – The Medical Liability Crisis and Access to Care Law of 2004 allows any party in a medical malpractice action to introduce structured settlement annuity evidence to pay for any future damages that may be awarded to the plaintiff. The introduction of the structured settlement annuity evidence would give a jury the information necessary to accurately assess the present day value for insurance products providing for future damages such as medical costs.

April 2004