FOR IMMEDIATE RELEASE:
November 13, 2007
FOR INFORMATION CONTACT:
Laurie Peacock, 312-580-6497
(cell) 312-608-3620
VERDICT COULD DERAIL ILLINOISANS’ HEALTH CARE ACCESS
Cook County trial court declares medical litigation reforms unconstitutional
Chicago – Today, Illinois doctors and patients received some very bad news: Cook County Circuit Court Judge Diane Larsen ruled the medical litigation reforms enacted by the Illinois General Assembly in 2005 as unconstitutional. This finding catapults the entire matter directly to the Illinois Supreme court for consideration.
“We are disappointed in the decision, which strikes down the very careful and deliberate effort of the state legislature to bring vital reforms to Illinois,” said Theodore B. Olson, former U.S. Solicitor General and prominent constitutional scholar who heads the ISMS/ISMIE team defending the law.
“In 2005, Illinois lawmakers faced health care shortages throughout Illinois due to an exodus of medical professionals triggered by out-of-control medical malpractice litigation. It’s a well-documented fact that reforms like these are working in other states. They attract more doctors and make health care more widely available,” stated Mr. Olson.
Among a host of reform provisions aimed at preserving patient access to medical care, the law in question capped non-economic damage awards at $500,000 for physicians and $1 million for hospitals. Non-economic damages are largely unpredictable and unquantifiable sums awarded by juries for emotional issues such as pain and suffering. Under the reform law, victims of true medical negligence could still receive unlimited economic damages such as lost wages, medical expenses, and future earning potential. (A summary of the reform law is attached.)
“This is only ‘round one’ in the battle to uphold these reforms, which have been crucial in slowing the number of doctors fleeing our state and helping in the recruitment of specialists,” said Rodney C. Osborn, M.D., Illinois State Medical Society president. “Getting rid of the 2005 medical litigation reforms now would be like benching your starting lineup in the toughest game of the season. We can’t afford to forfeit patients’ access to care.”
The three civil lawsuits, which call the reforms into question are LeBron v. Gottlieb Memorial Hospital; Alexander v. Nacopoulos, et al; and Zago v. Resurrection Medical Center, et al. Judge Larsen cited the Illinois Constitution’s separation of powers clause in declaring unconstitutional the non-economic damages cap, and thereby invalidating the entire reform law.
“We see very promising signs that things are recovering here, that litigation reforms are really beginning to work in both the medical liability marketplace and with patients being able to find medical care,” said ISMIE Mutual Insurance Company Chairman Harold L. Jensen, M.D. “We will fight to overturn today’s decision so that when the 2005 reforms are ultimately upheld by state’s high court, doctors can once again look to Illinois as a good place to practice medicine. We eagerly wait for that day.”
www.realitymedicine.com
www.isms.org www.ismie.com
ISMIE Mutual Insurance Company is the largest insurer of medical liability for Illinois physicians. Since the company’s inception in 1976, it has been policyholder-owned and operated. ISMS is a professional membership association representing 13,000 physicians practicing in all medical specialties statewide. Dr. Osborn is an anesthesiologist practicing in Peoria. Dr. Jensen is an internal medicine specialist from Frankfort.
Highlights of the 2005 Medical Litigation Reforms
Judicial Reforms
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$500,000 cap on non-economic damage awards for physicians and $1 million cap for hospitals. Firm cap, not indexed for inflation and no exceptions.
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Improvements to the affidavit of merit, requiring disclosure of consulting physician’s name, and that the physician be an expert in the area of medicine that is the subject of the lawsuit.
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Stronger standards for expert witnesses. Witnesses must be board certified or board eligible in the same specialty as the defendant. The expert must also devote a majority of time to the practice of medicine, teaching or research. Retired experts must be current with continuing medical education.
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Allow the use of annuities for the payment of portions of the award for medical costs.
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Good samaritan immunity extended to retired physicians providing free care and for free care provided in the home.
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Allow physicians to say “I’m sorry” or other expressions of grief and apology without the statement being used against them.
Medical Discipline
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Medical Disciplinary Board expanded from nine to eleven members. Four members must be members of the public
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Doubles the number of IDFPR investigators.
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Extends the statute of limitations from five to ten years for IDFPR to investigate allegations of a pattern of practice.
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IDFPR disciplinary fine increased to $10,000 maximum.
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Good faith immunity for persons reporting to peer review committees alleged violations of Medical Practice Act.
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Internet profiling of physicians’ professional credentials, and disciplinary and medical litigation histories.
Insurance Regulation Reform
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More power for the Division of Insurance to call hearings to determine whether rates are excessive or inadequate. Hearings are to be held at the request of 1 percent of insureds within a specialty, or at the request of 25 insureds (whichever is greater). Department will call for a hearing when an increase is over 6 percent.
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Encourages insurers to offer policies with deductibles and premium discounts for risk management programs.
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Requires submission of claims statistics and other data to the DOI. All information will be made available to the public.