Medical Malpractice Caps Ruled Unconstitutional by Illinois Supreme Court
In a written opinion issued this morning in Lebron v. Gottlieb Memorial Hospital, the Illinois Supreme Court struck down the statutory medical malpractice caps on noneconomic damages on grounds that they were unconstitutional and violated the separation of powers clause. A copy of the ruling may be viewed here. The opinion was written by Justice Fitzgerald, with partial dissents by Justices Garman and Karmeier. Justice Thomas did not participate. Writing for the majority, the court concluded that the statutory caps were facially invalid as impermissibly encroaching upon the judiciary’s inherent power to correct jury verdicts, amounted to a legislative remittitur, and were not a legitimate exercise of the General Assembly’s police power. The majority struck down the rest of the legislation on inseverability grounds, but stated that the General Assembly could reenact any other provision it deemed appropriate. Partners Michael Resis, Carmel Cosgrave, and Ellen Green wrote an amicus brief in support of the medical defendants and the statutory caps.
The Court’s ruling does more than simply eliminate the caps on noneconomic damages, which had been set at $500,000 for physicians and $1,000,000 for hospitals. With this ruling, all of the reforms set forth in the Act are thrown out, including the elevated standards for experts signing section 2-622 reports and testifying in court, enhanced disciplinary standards for physicians and public availability of a physician’s credentials and disciplinary/litigation history, increased insurance oversight, and the “Sorry Works” program, which provided protection for health care providers who apologized to patients.
The decision marks the fourth time since 1975 that the Illinois Supreme Court has struck down our state legislature’s attempts to address the continuing medical malpractice crisis. The 1975 caps, which placed a $500,000 cap on damage awards in medical malpractice actions, were declared unconstitutional in Wright v. Central DuPage Hospital Ass’n, where the Court determined that to the extent recovery is permitted or denied on an “arbitrary basis,” a special privilege is granted in violation of the Illinois Constitution.
The 1985 reforms, which provided for screening review panels, periodic payment of damages, and the prohibition of punitive damages in medical malpractice actions, were thrown out in part in Bernier v. Burns. In that decision, the Court threw out the screening panels but permitted the periodic payment provisions and bar on punitive damages to stand. Notably, no caps were included in the 1985 reforms.
The 1995 reforms again attempted to incorporate a damage cap, which was later thrown out by the Court’s decision in Best v. Taylor Machine Works. The $500,000 cap in the 1995 reforms applied to non-economic damages in all personal injury suits, and was not specifically limited to medical malpractice actions. The Best decision found that even if the caps achieved a system-wide savings in costs, the Illinois Constitution’s prohibition on special legislation did not permit the entire burden of the anticipated cost savings to rest on one class of injured plaintiffs. The Court also held that a cap on all personal injury actions was not “rationally related” to curtailing any perceived malpractice crisis.
Taking all of this history into consideration, our Legislature set forth a new package of reforms in 2005 which were specifically tailored to avoid the pitfalls of previous reform attempts and provide an “all-around” approach to addressing the medical malpractice crisis, incorporating caps on damage awards, enhanced regulation of insurance companies, and increased disciplinary standards for physicians. The “Sorry Works” program also was intended to help prevent litigation by allowing caregivers to apologize to families within 72 hours of the recognition of an adverse event. Without these protections, and with plaintiffs also now being permitted to recover damages for “sorrow and grief” in wrongful death actions, it is possible that plaintiffs and their attorneys will have even more motivation to file medical malpractice suits, particularly in plaintiff-friendly venues like Cook County.
Unfortunately, the impact of the Lebron ruling extends far beyond the issue of damages. The Supreme Court’s 2008 ruling in O’Casek v. Children’s Home and Aid Society of Illinois takes on new meaning in light of Lebron. The O’Casek case overturned the Appellate Court’s prior ruling in Cargill v. Czelatdko, finding that Public Act 90-579 did not reenact the version of section 2-622 previously held unconstitutional in Best v. Taylor Machine Works. Section 2-622 requires a plaintiff’s attorney to obtain a physician certificate of merit prior to filing a medical negligence action. With the entire 2005 reforms invalidated, however, the Court’s ruling in O’Casek means that section 2-622 of the Illinois Code of Civil Procedure reverts to its pre-1994 state. In other words, plaintiffs are no longer required to disclose the identity of the provider authoring their section 2-622 reports, and even refiled cases are eligible for a 90-day extension of time in which to secure a section 2-622 report. This means that a plaintiff who files a lawsuit but dismisses it because they could not obtain a section 2-622 report would be able to refile suit a year later and still be given an additional three months to find a supportive physician to author a section 2-622 report. Section 2-622 will again be examined in Coulson v Price, pending before the Supreme Court under Docket No. 109321.
The full impact of the Lebron decision on Illinois’ health care providers remains to be seen, and it is likely that additional attempts to craft survivable tort reform will be raised in the future. For now, however, it appears that Illinois physicians and hospitals are left to bear the brunt of the malpractice crisis on their own.