Celebrations All Around -- Or Maybe Not
The happy scene portrayed in the photo at right took place in August, 2005, when Governor Blagojevich signed SB 475, now Public Act 94-677, the medical malpractice reform bill of 2005.
Some of the people behind him, in white coats, are physicians or other health-care professionals who joined him for the signing ceremony. It was held in Madison County, an area of Illinois that had been a hot bed in the fight for medical malpractice liability reform. Blagojevich - not a supporter of med-mal reform - realized that this was an issue he should jump on since it was approved in the General Assembly.
Hence, the Blago machine helped script and structure the event and the Governor himself showed up at St. Anthony's Hospital in Alton to sign the bill.
The happy scene portrayed in the second photo at right took place on May 31, 2007 -- last Thursday -- when Governor Blagojevich signed Public Act 95-003 into law. P.A. 95-003 had been referred to as the "grief and sorrow" bill. It was a trial lawyer-initiated bill and the primary impact of it will be more money for trial lawyers. True, the new law will provide financial compensation for the "grief and sorrow" that relatives of some decedents suffer in connection with the death of a family member.
As if money will really help anyone, except the trial lawyers who will collect their contingency fees.
There was no big signing ceremony for HB 1798 -- now P.A. 95-003. Neither the governor nor the trial lawyers -- nor anyone -- wanted to focus any more attention on this bill so it was signed ... when? ... who knows? It might have been in a dark alley behind the Capitol or in some local trial lawyers' office.
The Governor knows it is a bad law; the legislators who voted for it know it’s bad; trial lawyers know it’s bad law -- but it's good for them. They wanted no attention focused on this bill-signing. Perhaps Blagojevich’s almost-fistfight with Sen. Mike Jacobs was just one of many attempts to distract the media and others from this signing. (Jacobs, by the way, voted "NO" so maybe that's another reason Blagojevich was upset with him.)
Maybe it’s an encouraging sign when the Governor and his colleagues in the General Assembly realize when they are doing something that’s bad and don’t want to call any more attention to it than is necessary.
Maybe Governor Blagojevich realized that HB 1798 was so distasteful that he should sign it with as little attention as possible -- before the Citizens of Illinois (including doctors, hospitals, businesses, etc.) had a chance to say, "Hey, Gov, you ought to read that bill and think twice about it and veto it."
But he didn't -- although he did get those calls -- and HB 1798, now PA 95-003, is the law in Illinois.
The Governor's action, the trial lawyers' action in proposing such a bill, and the action by members of the Illinois General Assembly who voted for it, all seem very fitting for a legislative session that has been favorably described as a disaster.
And it's a legislative session that still goes on because the party in control of the Legislative and Executive branches of Illinois government seems incapable of leading and governing.
Maybe this is also one of the reasons the good guys - that’s us and our allies -were able to slow down any progress on another of the absolutely outrageous trial lawyer bills, SB 1296.
Whatever the reasons, SB 1296 was slowed down/stopped - at least for this session.
Maybe it was because legislators who actually looked at that bill thought - or asked - are they kidding?
Maybe it was because legislators heard from a LOT of constituents who had serious concerns and legislators themselves developed serious questions.
Maybe it was because opposition came from unanticipated sources: Chicago, local governments, including municipalities and park districts.
Whatever the reason, SB 1296 is on hold right now and maybe forever, at least in its present form. Those who opposed it because of what it would do should be prepared to resume the fight - perhaps not in November but certainly next year - because the proponents will figure out a way to make it seem like nothing more than a clarification of intended law that assures fairness for everyone, especially the most seriously injured. And a lot of Illinois legislators will swallow that baloney sandwich.
So keep the powder dry.
Cross-posted at Illinois Justice Blog.
14 comments:
I'll admit that I've been one of the biggest complainers about ICJL's wooden, bad-press-release postings here.
So, I'll give credit where credit is due: this is a well written post that didn't make my eyes roll.
Now, that doesn't mean I agree with much of the substance in it.
For example:
True, the new law will provide financial compensation for the "grief and sorrow" that relatives of some decedents suffer in connection with the death of a family member.
As if money will really help anyone, except the trial lawyers who will collect their contingency fees.
It's true money won't bring back a dead spouse or child. But that doesn't mean we should simply void damages for a very real hurt. In fact, if that's the argument, then why have tort compensation at all? Maybe we just punish the wrongdoer by criminalizing tort law; or perhaps we simply tell the victims' families "tough luck, isn't life hard"?
The focus of tort reform -- and the real problem with trial lawyer behavior -- is the filing of frivolous suits. Limiting damages doesn't address that problem.
But even if I disagree with the post, at least I could read it. So, I hope ICJL keeps up with its new writing style. I'm sure I'll keep up my disagreement on the substance :)
Murnane - The death penalty or life in prison w/o parole don't bring back murder victims, so apparently you think we should just tell killers "don't do that again" and send them on their way?
There's alot of irony in the ICJL's argument against restitution for emotional damages, or "non-economic" damages if you prefer:
1. ICJL and the Medical Society argue that pain and suffering aren't "real" damages, but every hospital has Pain Doctors on staff. Apparently, doctors think they should be paid for making pain go away, but shouldn't have to pay when they cause it.
2. Ditto the pharmaceutical industry, which funds the ICJL.
3. Big business and the Medical Society argue that grief and sorrow aren't "real" damages, but makes billions a year off of book sales and psychological doctors to help people cope with it.
4. Big Business and the ICJL argue that you can't put a price on love when they take a loved one away, but there are over 10,000 "dating services" businesses in Illinois that put a price on love for helping you find it.
The other anon wrote:
"The focus of tort reform -- and the real problem with trial lawyer behavior -- is the filing of frivolous suits. Limiting damages doesn't address that problem."
That's not accurate. Frivolous lawsuits are not really a problem. If they are actually frivolous, they are tossed out of court.
The real problem is on the damages. Whether we are talking about the Chief Justice's defamation "damages" or just about any damages on these light impact "my back hurts" cases, Illinois juries are still treating the plaintiffs to the lottery and the courts are just not doing anything to prevent it (although Kicker Thomas's verdict was reduced slightly).
Murnane has a point here. This just adds another category of damages and is little more than a gift to the plaintiffs' bar.
Skeeter, if the problem is the damages, it seems that the solution is to reduce or eliminate the negligence that leads to the damages, not the jury verdicts that give rise to them.
BTW, the most recent study by the U.S. Department of Justice found that the size of jury awards is actually on the decline, once you adjust for inflation. George Bush's Justice Department was so disappointed to find this was the case, they haven't studied the issue since.
And, according to the Illinois Supreme Court's annual report, 88% of all lawsuits FILED seek $50,000 or less in damages.
What's happened unfortunately is that the media's focus on cases with awards has distorted the public's perception, and big business likes to distort that picture even further.
The McDonald's coffee case is a great example. No one remembers that McDonald's was super-heating it's coffee to such extreme temperatures - to increase the aroma and so they could use fewer coffee beans - that the victim in that case received third degree burns over 6 percent of her body.
Folks also forget that Stella Liebeck originally sought to settle the case for $20,000 - after eight days of hospitalization - but McDonald's refused.
After McDonald's refused to settle, Liebeck's lawyers learned through the discovery process that McDonald's had received more than 700 complaints of similar injuries over a decade, but had done nothing about it.
Finally, Liebeck's initial award of $2.9 million ($200,000 for economic and emotional damages like pain and suffering, $2.7 million in punitive damages against McDonald's for reckless and willful negligence) was reduced to $640,000 after trial courts slashed punitive damages in the case from $2.7 million - or two days worth of coffee sales from McDonald's - to $480,000, or three times the compensatory damages. Few if any newspapers covered the reduction in the verdict, which came even though the trial judge called McDonald's behavior willful, callous and reckless.
Now, tell me, who wants to win a $640,000 "lottery" in exchange for 3rd degree burns on their groin, genitals, thighs, and buttocks?
YDD,
Why do you assume that there is any connection between a negligent act and damages?
You sound like a very dangerous juror -- somebody who assumes that just because there is a careless act there must be damages. Very often that is not the case at all.
The issue remains that jury awards are random at best. The jury likes the plaintiff or dislikes the defense attorneys? $8 million for "loss of society." The plaintiff's wife not a nice person? $35,000.00.
Is that really the type of system that you want?
And to get back to the point: Given the problems with damages that we already have, does it make sense to add another category? Feel like explaining to a jury why the plaintiff is entitled to recover for both "loss of society" and "grief"?
Finally, you keep bringing up that 88% figure. I am not clear as to why. Damages can be grossly excessive in a small case as easily as a large one. A $10,000 verdict where a plaintiff has at best bumps and bruises is just as insane as $8 million for loss of society.
YDD:
Was the US DoJ study for the federal court system only, or does it also include state court data?
In the case of Illinois lawsuits, specifically looking at magnet jurisdictions like Cook, Madison and St. Clair, I remember seeing data from the hearings two years ago that was showing two- and three-fold increases in awards against hospitals.
As always with this debate, I'm not hearing arguments that compare apples with apples.
Skeeter,
I think YDD has the main point correct: most lawsuits filed are not the multi-million dollar suits that would be affected by caps.
The injuries involved in multi-million dollar personal injury suits are generally pretty severe. If there's negligence involved, why shouldn't the injured party get a fair damage award?
Caps by their nature protect only negligent parties that cause a lot of damage. If that's our lawsuit crisis -- well, I'll take the crisis over the solution of screwing over victims.
The Other Anon:
The original post had little to nothing to do with the caps. What the post concerned is a new category of damages that has been created by the state legislature.
Juries were compensating people for any losses before. This new law is simply a gift to the plaintiffs' - now they get "loss of society" AND "grief" and I sure can't tell what the difference is.
Skeeter -- I'm not ASSUMING that there is a connection between negligence and damages. The only way you can collect damages is if you can prove negligence first. In fact, in cases involving municipalities and units of local government, you have to prove that their actions weren't just merely negligent, but willfully and wantonly negligent.
Show me one jury verdict resulting in $8 million for "loss of society", Skeeter. Jury verdicts aren't random at all; the process for selecting jurors is random, more or less, but the verdict depends on the facts of the case and the attorneys' skill in presenting them.
I keep bringing up the fact that 88% of lawsuits are for $50,000 or less because others keep perpetuating the myth that we have a "jackpot justice" system where trial lawyers are cashing in hand over fist by filing frivolous multi-million dollar lawsuits every day.
If, in fact, the vast majority of lawsuits filed are for less than $50,000, it kind of shreds that theory, don't you think?
The facts of the case too often focus on how likeable the plaintiff is (or the family members are). That is just a fact. Jurors give money to people they like. It is random. Rolling the dice. A plaintiff can do something stupid and get hurt, but if the jury likes the person, they probably are going to cash in. That doesn't work for the mean and the ugly, which is one reason I will never file a lawsuit.
The $8 million loss of society is absolute fact (a recent reported verdict from a trucking accident). I don't have the case cite but if you really care, e-mail me and I will dig it up.
With regard to the 88%:
I never said that "frivolous" suits are a problem. I said the opposite. Those cases are tossed out of court early. A lot of plaintiffs' attorneys file the suits to get their name in the paper, and then the case disappears. Frivolous suits are a nuisance but not a real problem.
Excess damages, along with new categories of damages, are the problem.
With regard to your 88% argument:
Shreds?
Not at all.
$10,000 with no injuries is the jackpot, and probably more so than a person who is grossly overcompensated for real (but exaggerated) injuries.
Anon 5:06 --
The report studied both Federal and State courts, and specifically found that median state court jury awards declined 56% from 1992 to 2001, to $28,000.
The report is entitled "Civil Trial Cases and Verdicts in Large Counties", 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004.
As for the size of awards against hospitals, I can tell you that based on everything I've learned, the quality of care in most Illinois hospitals is substandard at best, so it's not surprising to hear lawsuits against them on the rise, although I'll bet that has more to do with a handful of extreme cases than a general trend.
For example, Northwestern was "strongly encouraged" by a Cook County judge to settle a lawsuit for $36 million, the largest medical malpractice settlement in Illinois history. That case involved an anesthesiologist who repeatedly refused to answer his pager because he was in a private room in another part of the hospital with his nurse/girlfriend, and a child that was born severely brain-damaged as a result. The nurse was prepared to testify as to what the doctor was doing at the time - and the judge, sensing a verdict that might have run $100 million or more - encouraged the hospital to save itself a lot of time, money and embarrassment. Sometimes, settling really is in the defendant's best interest.
As for the quality of hospital care in general, I encourage everyone to visit two websites: Leapfrog.org is a business-backed organization that evaluates quality-of-care standards for Illinois hospitals. You'll notice most of them suck.
The other is the Department of Professional Regulations monthly reports of disciplinary cases against doctors. There you can read about doctors showing up for work drunk, practicing medicine under the influence of crack, sexually molesting their patients, even outright murder every once in awhile.
Anyone who thinks we should give blanket amnesty to doctors or hospitals for severe emotional damages should try to imagine their 12 year-old daughter or son being molested by a doctor, or a nursing home reinstating a doctor after he's been found guilty of sexually molesting four different senior citizens, only to strike your parent or grandparent. Because right now, jury awards for those emotional damages are capped.
YDD,
I'm not clear on that last post.
How does creating a new category of damages that duplicates a current category (loss of society v. grief) make doctors behave better?
Your post does, however, point out one of those interesting facts of the tort system that you keep denying: The jury would have been outraged that the anesthesiologist was cheating on his wife, and would have given a higher verdict. The verdict would have been related to outrage and not to damages sustained.
Again, purely random damages. Doctor causes damages because the doctor just screws up? Low verdict. Doctor screws nurse? High verdict. The actual injuries don't make much of a difference.
Why do doctors get sealed cased based on dollar amounts them complain about the amounts?
If the state would discipline the doctors and the way they did the nurses and other regulated we may have these problems. The AMA is very powerful and so is the hospital association.
Tort reformer Robert Bork sues Yale Club.Claiming the Yale Club of New York City “wantonly, willfully, and recklessly” failed to provide easy to climb staging, conservative uber-activist Judge Robert Bork is suing the club for $1,000,000 in compensatory damages, plus punitive damages from a fall Bork sustained while mounting the dais at the club for a scheduled speech. Bork, an infamous tort reform advocate, hasn’t always been such a fan of suing for punitive damages, at least when other people do it.
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