Health Care Law Alerts

Healthcare providers across Illinois and the nation have been waiting for the Illinois Supreme Court’s ruling in the LeBron v. Gottlieb Memorial Hospital case. On Thursday, December 17, 2009, the Court is expected to issue its opinion on the constitutionality of the 2005 tort reform legislation.

Over two years ago, on November 13, 2007, Cook County Circuit Court Judge Diane Joan Larsen issued her ruling on the constitutionality of the legislation in a consolidated hearing on three cases: LeBron v. Gottlieb Memorial Hospital, Alexander v. Nacopoulos, and Zago v. Resurrection Medical Center. In a written opinion, Judge Larsen ruled in favor of Plaintiff’s declaratory judgment count that the caps on non-economic damages were an unconstitutional violation of the Separation of Powers Clause of the Illinois Constitution, and constituted a legislative remittitur on the jury’s verdict. The order was appealed directly to the Illinois Supreme Court.

The 2005 tort reform legislation applies only to medical malpractice claims and contains the following provisions:

• $500,000 cap on non-economic damage awards for physicians and $1,000,000 cap for hospitals;
• Elevated standards for experts certifying a lawsuit and testifying in court;
• Enhanced medical disciplinary standards for physicians;
• Internet posting of doctor's credentials, disciplinary, and medical litigation histories;
• Increased state regulation of medical liability insurers operating in Illinois; and
• Protection for Healthcare providers who "apologize" to patients.

The 2005 reform law is not "severable," meaning if our Supreme Court finds one part to be unconstitutional, all parts of the law will be thrown out.

The malpractice caps passed in 2005 were carefully tailored, taking into consideration our Court's prior rulings. Unlike the 1995 caps, which limited plaintiffs' recovery of economic damages, including actual medical expenses, the 2005 caps limit only non-economic damages. A plaintiff is still free to recover unlimited actual out-of-pocket expenses.

Similarly, unlike the 1995 caps, the 2005 legislation was carefully crafted to address the medical malpractice crisis, and applies only to medical malpractice claims. Other personal injury claims are not affected. The 2005 reforms also contain substantial medical discipline and insurance regulation reforms, demonstrating our Legislature's commitment to attacking the current malpractice crisis from all sides.

Also of note, despite our Supreme Court's statement in Best v. Taylor Machine Works (which threw out the 1995 reforms) that there was no reliable evidence indicating a link between non-economic damages and liability insurance, in the two years since the 2005 caps went into effect, lawsuits against physicians and hospitals have declined. ISMIE Mutual Insurance Company, which insures more than half of the physicians in Illinois, saw their claims drop from 3,405 lawsuits in 2004 to 2,692 in 2006.

SmithAmundsen attorneys Carmel Cosgrave, Michael Resis, Ellen Green, and Jennifer Stuart were involved in the preparation and submission of an amicus brief in support of the tort reform measures on behalf of Advocate Health and Hospitals Corporation, and the firm anxiously awaits the Court’s ruling, which will have a profound impact on healthcare facilities and providers in our state. SmithAmundsen is hopeful that the Supreme Court will recognize the improvements made in the 2005 legislation that distinguish it from previous failed attempts at tort reform, and will continue to keep you up to date on all developments in this important case.

UPDATE ON RULING ON 2005 TORT REFORM LEGISLATION

The long awaited decision by the Illinois Supreme Court in Lebron v. Gottlieb Memorial Hospital was not released on December 17, 1009 as scheduled. While no reason was given for the delay, this type of action does happen on occasion. There is currently no new date for the release of the decision. We will continue to keep advised of all developments on this very important issue.

This alert was written by Jennifer Stuart.