Med-Mal Ruling Not A Surprise; But Will Have Impact(s)

While it was disappointing, the ruling by Cook County Judge Diane Joan Larsen that the 2005 Illinois medical-malpractice reform bill is unconstitutional, it was not unexpected, nor is it the end of the world for advocates of fairness and of common sense legal reform in Illinois.

In fact, there has never been a doubt that the Illinois Supreme Court would ultimately rule on the constitutionality of the 2005 law and the fastest – maybe the only – way to get the law to the Supreme Court is through a lower court ruling of unconstitutionality.

So the process is a step closer to conclusion and, frankly, no one is surprised.

Judge Larsen, the former chief of policy litigation in the City of Chicago Law Department, did what she was expected to do. She looked at the current law, looked at the 1997 Supreme Court ruling in Best vs. Taylor Machine Works, and decided that she couldn't override the Illinois Supreme Court, even if the law passed in 2005 -- eight years after Best -- deserves a new look by the Court. The Court, incidentally, has six new members (of seven) since the 1997 Best ruling.

So Judge Larsen did what she was expected to do and while I don't quite agree with Madison County medical malpractice trial lawyer John Hopkins that Judge Larsen acted "in true courage," (she did what she had was expected to do) Hopkins himself demeans his praise of Judge Larsen with his cheap shot at doctors in his commentary in the Madison County Record this weekend:

The winds of fearful political consequences notwithstanding, in an act of true courage, Cook County Judge Diane Larsen struck down the damage caps, finding they violate both the separation of powers provision as an impermissible infringement on the judicial process, as well as seeing the law for what is always was, an unabashed attempt to give even more special indemnities under the law to an already overly privileged class.(Link To Hopkins Commentary Below.)

Most doctors in Madison County, or elsewhere in Illinois, do not practice out of the luxurious offices occupied by Hopkins firm on a main thoroughfare in Edwardsville.

While the Larsen ruling is just a first step -- and an anticipated step -- on the way to a Supreme Court ruling, it will set in motion many other likely steps. It will have an impact, probably several.

One of them, obviously, is that some plaintiff's lawyers will begin pontificating. Those who practice in Madison County and in other troubled areas of Illinois and who aren't smart enough to hold their fire are likely to re-kindle the fires that led to major political change and major pressure on the Illinois General Assembly.

Doctors in Southern Illinois -- that "overly privileged class" -- are not going to rest easily when they see storm clouds on the horizon once again.

The coincidental timing of the ruling, less than a year before a state-wide referendum asking Illinois voters if we need to hold a constitutional convention, could have a significant impact. The question to be resolved on Public Act 94-677 is whether it is constitutional or not.

Some might argue that an issue that has been before the Illinois Supreme Court on several occasions may be best served by a new constitution that leaves no doubt. The "separation of powers" provision could be changed, the "special legislation" provision could be changed. The constitution could say "The General Assembly my establish limits on damages" or it could say "The General Assembly shall not establish limits on damages."

In Texas, where there have been sweeping civil justice reforms, including caps on non-economic damages, the economic benefits have been huge, including job growth and an increase in physicians. Harris County (Houston) has seen a gain of 689 physicians, 15 new insurance companies have entered the Texas market, and medical malpractice insurance rates have been reduced by upwards of 15%.

And another thing: Texans approved "Proposition 13," a constitutional amendment that eliminated potential court challenges to the law that limited non-economic damages.

Don't think Illinois doctors and others won't be thinking about this during the build-op to the Illinois constitutional convention referendum 11 months and 15 days from today.

Perhaps the biggest loser as a result of Judge Larsen's ruling is a fellow female Democrat who is running for judge in Southern Illinois.

Judy Cates is seeking the Fifth District Appellate seat -- the Southern Illinois seat -- in the Democratic Primary. Southern Illinois was "ground zero" in the med-mal fight in 2004 and again in the 2005 legislative session. The med-mal bill under challenge would not have been passed without the support of virtually all Southern Illinois legislators -- Democrat and Republican -- who recognized the need to do something to preserve and improve access to health care in Southern Illinois.

Among the leaders of the opposition to reform -- a very vocal and aggressive opposition leader -- was Judy Cates, the immediate past president of the Illinois Trial Lawyers Association.

Democrats in Southern Illinois, as well as Republicans, wanted medical liability reform and they got it, over the intense opposition of the Illinois Trial Lawyers Association and ITLA's leaders, including Judy Cates.

Now, Judy Cates wants these same Democrat voters to support her for judge, just months after her organization, the Illinois Trial Lawyers Association, orchestrated the challenge to a law every Southern Illinois Democratic legislator voted for. Could be a problem.

John Hopkins Commentary.

-- Ed Murnane
Illinois Civil Justice League
November 19, 2007