Tuesday, August 21, 2007

Illinois Med-Mal Reform Nears Two Years ... and Working

But Trial Lawyer Assault Is Inching Along Too

Later this week, it will be the second anniversary of the enactment of Public Act 94-677, the medical malpractice reform legislation passed in response to a severe doctor and hospital crisis in Illinois and in the aftermath of political and grass roots activity that overturned long-standing trends, particularly in Southern Illinois.

Following that wordy preamble, there are three significant facts:

First, the new law appears to be working. The Chicago Daily Law Bulletin reported Friday (story below) that medical malpractice lawsuits are down in Illinois.

Second, two years is a significant marker in Illinois because the statute of limitations in medical malpractice incidents in Illinois is two years (in virtually all cases). That means lawsuits filed between August 25, 2005 and this week MAY (actually, most likely WILL) concern alleged malpractice that occurred before the new law took effect. Lawsuits filed after August 25 will involve incidents that took place while the new law was in effect. (There are some exceptions to the two year statute of limitations involving cases in which an injury cannot reasonably be discovered during the two year period; then a lawsuit must be filed within four years).

The Third is that one of the anticipated challenges to P.A. 94-677 is likely to be heard in Cook County Circuit Court next month. The lawsuit, filed in Chicago last November, is before Judge Diane J. Larsen. While the case itself accuses a doctor and hospital of malpractice in the case of a child born with severe brain damage, the attention of the nation's legal community will be focused on the challenge to the constitutionality of P.A. 94-677 that accompanies the suit on behalf of the estate of Abigaile Lebron.

It was not surprising that a suit involving a child -- in this case a new-born -- was selected by the plaintiffs' community. A case provoking sympathy is always the best, especially in front of a jury.

It also should not be surprising that the number of medical malpractice suits is down.
In fact, it proves the point that litigation will drop if trial lawyer winnings go down. The "cap" enacted in 2005 deals only with non-economic damages, the subjective and often emotionally-determined portion of an award that provides most of the plaintiffs' attorneys' fee. In Illinois, the fee can be as high as one-third of the first $150,000, scaled down to 20% of awards over $1 million.

Under the new law, the non-economic damage award can't exceed $500,000 in cases against doctors, and $1 million against hospitals.

We saw the same result in Illinois following the enactment of the Civil Justice Reform Amendments of 1995 which capped non-economic damages in most civil cases, not just medical malpractice litigation. There was a dramatic reduction in litigation but the pace quickly picked up after the Illinois Supreme Court overturned the law in 1997.

But caution must be used in analyzing the numbers right now since even lawsuits filed today or tomorrow or anytime this week could be suits dealing with incidents that happened before the law was in effect and there are likely to be many plaintiffs' attorneys who are waiting it out, and others who are convinced the new law will be ruled unconstitutional and thus eventually, there will be no cap on non-economic damages.

One thing that is certain, however, and it tracks what happened between 1995 and 1997, is that there has been no outcry from anyone, other than trial lawyers, that injured people are being denied fair compensation for their injuries and financial losses.

Nor has there been any indication that medical professionals are being any less careful and diligent and vigilant in their dealings with people in need of medical care.

The system is working, the number of lawsuits is down, and there has been a change in the perception of Illinois' medical malpractice climate. At least two new medical malpractice insurers -- including one headed by a former president of the Illinois Trial Lawyers Association (Kim Presbrey, 2001-2002) -- have begun operations.

In fact Medicus Insurance, a Texas-based insurer, made it clear that medical malpractice reform in Illinois was a prime reason for its decision to get involved here.

Judges in Madison County, one of the most scorned jurisdictions in Illinois, have initiated new mediation and arbitration proceedings in medical liability cases and they have held several meetings with doctors and hospitals in an attempt to improve mutual understanding and trust.
Let's hope the success of the last two years will be matched with the same success in the next two ... and the next ten ... and next 20 and more. The winners will be Illinois patients who are, after all, us.

History And Details Of PA 94-677. (Includes sponsors and text).

Case Information Summary Record Of Abigaile LeBron, etc., et al. v. Gottlieb Memorial Hospital, et al., No. 06 L 12109

**

The Chicago Tribune Sunday included a story (see below) describing a growing practice by doctors of expressing regrets or apologies when a potential physician mistake has caused problems.

It makes sense. Most physicians -- probably all whom we know -- would readily express regret or apology if something the physician or other medical provider did caused problems, rather than provided cures.

The problem has been the aggressive nature of the plaintiffs' lawyers who specialize in medical malpractice litigation and who search for evidence that it was a doctor's action that led to a patient's problems, including, possibly, death.

So doctors have been advised against any communication that could be used against them, including an expression of regret or an apology. My guess is that most doctors don't like that restriction, that they would prefer to communicate openly with patients without the fear of providing ammunition to the trial lawyers.

As the Tribune reported:

One of the biggest obstacles to disclosure is the fear of lawsuits. More than 30 states, including Illinois, have passed "apology laws" that prevent expressions of regret from being used against physicians in court. But most lawyers are skeptical and insurance companies typically still insist that doctors break off all communication with patients or families after medical snafus occur.
The 2005 medical-malpractice reform law enacted in Illinois included reference to the "sorry" concept and even included a proposal for a pilot program in Southern Illinois.

But the proponents of that concept were closely tied to and funded by the Illinois Trial Lawyers Association, not a good sign that fairness is the objective. In fact, the leader of the trial lawyer-backed "sorry" proposal in Illinois actually lobbied against the bill that included the proposal because it included a limit on non-economic damages, which is the most despised concept in the minds of trial lawyers.

So while there are many reasons to support the idea of physicians' expression of regret or apology, to make it work it has to be free of the destructive and duplicitous motivation of the trial lawyers.

-- Ed Murnane
Illinois Civil Justice League
August 20, 2007

4 comments:

Anonymous,  7:17 AM  

This is all a bunch of baloney. It's an emotional argument not based on the objective facts. Plain and simple, this is about greed--insurance company greed and their effort to deceive physicians into believing that justice is responsible for high premiums, rather than their investment losses in a bad market. What REALLY needs to happen is that we need to crack down hard on that 5% of bad doctors who are responsible for nearly HALF of all medical malpractice--revoke their licenses--but I am willing to bet that you will hear doctors siding with the for-profit, corporate insurance companies before they're honest about this.

Anonymous,  7:45 AM  

Anonymous 7:17AM says this is "all a bunch of baloney," and "not based on objective facts." However, based upon research conducted on Madison and St. Clair counties, more than one-third of all doctors and one-half of all clinics were sued in a four-year period. That's an actual review of case filings for those two counties.

That study inserted unbiased "facts" into the argument, proving that - in some parts of Illinois - medical malpractice claims have nothing to do with the "5% of bad doctors" theory, which is the typical trial lawyer argument.

I'll agree with one thing, it does have everything to do with "greed", but not with the insurance companies, instead it's the greed of the plaintiffs bar.

Also, Illinois' main insurer is a doctor-owned company, so any profit they take is either turned into a dividend (as was the case this past year) or lower premiums (which was also the case this past year). There are not "investors" reaping the gains.

You would think legislators would have moved past the "emotion" in all of this before passing the 2005 reforms, the issue bounced around the General Assembly for nearly two and a half years before action was taken.

Perhaps the private plaintiffs lawyer firms need to report their profits and gains? They claim to exist for the public good, maybe it's time to be regulated just like the insurance entities they detest. Then, finally, citizens could really see where profits exist in the medical malpractice debate.

Most of the trial lawyers I know live in awfully fancy places, or are building nice sports stadiums with their profits. They must not be going bankrupt.

Anonymous,  12:07 PM  

1. It's dishonest to cherry pick a couple of outlier counties and suggest that they are representative of the entire state--they're not.

2. Who conducted the research that you mention? How was the research conducted? Did they receive any funding from the doctor's lobby?

3. So what if up to 33% of doctors and 50% of clinics were SUED within a FOUR YEAR period? Getting SUED is not a problem--our judicial system is good at weeding out frivolous lawsuits; and if a lawsuit is frivolous, it will simply get dismissed. It should also be noted that the numbers you have provided average out to ONLY 8.25% of doctors and 12.5% of clinics each year. How does this compare to other, similar industries? Further, only a small percentage of those cases likely went to trial; and even less were successful. Last, perhaps, for some reason, doctors and clinics are particularly negligent in the counties that you cherry picked--that would explain the statistical anomaly, would it not? Even if not, it's still an outlier.

4. You seem to be very defensive of the insurance and doctor's lobbies. Do you receive funding, or any other benefits, from any individuals and/or groups tied to insurance and/or doctors. I'll bet that you do.

5. Let's be clear about the "main insurer" in Illinois that you are talking about. Are you saying that they don't invest their funds at all? Also, how have doctors' premiums changed in relation to medical INFLATION, or inflation in general, over the past few years? I think you will find that there is NO CRISIS--the figures track well.

6. Legislators are the recipients of large campaign contributions from the insurance and doctors' lobbies--they're bought and sold and serving in a conflict of interest. Do you want to do a comparison of how much the insurance and doctors' lobby contribute vs. trial lawyers? Plus, the insurance and doctors' lobbies has been spewing misinformation, like you are doing here, for years; and that can sometimes be convincing.

7. I could care less if "private plaintiff lawyer firms" need to report their profit and gains. Perhaps doctors and insurers should be required to do the same. For purposes of full disclosure, I am not a trial lawyer and do not work for any trial lawyers or organization representing trial lawyers. I'm a neutral third-party.

8. You implication that doctors, in contrast to trial lawyers, are "going bankrupt" is another blatant falsehood. In fact, had you actually bothered to read the FACTS to which I linked, you would know that the exact opposite is the case; and the number of doctors is GROWING! It's obviously a very attractive field (I know of no other profession where you get to double book or triple book appointments and still send a bill.)

Yellow Dog Democrat 2:20 PM  

I'd celebrate the fact that medical malpractice lawsuits were down if it was because medical malpractice was actually on the decline, but there's no evidence to support that.

In other words, doctors and hospitals are still negligently injuring their patients, the only difference is that, thanks to caps, doctors and hospitals are now getting off scott-free.

That's not much to celebrate, when nearly every month we're reading reports of doctors who are drug addicted, sexually molesting their patients, even committing murder.

These are the folks that the Illinois Civil Justice League is committed to defending. And thanks to them, the next time a pediatrician molests someone's son or daughter, or a nursing home physician molests someone's grandma or grandpa, all they have to do is quickly relocate to another state to avoid having their license yanked, have their insurance company pay what amounts to a $500,000 slap-on-the-wrist, and life goes on as normal for them.

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