Tuesday, November 13, 2007

Medical malpractice returns

Consider a can of worms reopened. A Cook County Circuit Court judge struck down a state law limiting the amount patients can receive in cases alleging medical malpractice. Currently, the law caps jury awards for pain and suffering at $500,000 for doctors and $1 million for hospitals.

In Tuesday’s ruling, Judge Diane Larsen says the state’s 2005 medical malpractice law is unconstitutional because it violates the separation of powers and patients’ rights. “The basic argument is that it’s the judicial system that gets to decide what counts as an acceptable remedy and that the legislature is invading that province by enacting a cap,” says Professor David Hyman at the University of Illinois Law School, where he teaches civil procedure and health care regulation.

The ruling does not negate the state law. But it does open the door for the issue to make its way to the Illinois Supreme Court, which could overturn the law and has done so twice before with caps on damages in a broader sense.

State Sen. Susan Garret, a Lake Forest Democrat and original sponsor of the 2005 law, said she was a little surprised by the ruling. “When we crafted this legislation, I was under the assumption that it had passed constitutional muster.”

Then again, she said most physicians anticipated the court challenge. “So, for some it’ll be disappointing. For some it’ll be an opportunity to say, ‘We told you so.’ But I think we have to abet this and make sure it goes through the process.”

The 2005 debate over “med mal” spanned more than a year and posed trial lawyers against medical groups and the insurance industry, as well as Democrats against Republicans, in aggressive lobbying campaigns. For background, see an article I wrote in 2004.

The debate is just as polarizing today as it was then, demonstrated by the immediate and opposing statements released after the court ruling Tuesday. The Illinois Trial Lawyers Association applauds the judge’s decision and slams “record profits of insurance companies” as the problem fueling rising medical malpractice premiums. “One thing is clear: Our state constitution does not allow those who have been most seriously injured as a result of medical negligence to have their rights taken away in order to give bonuses to insurance companies,” association president Bruce Kohen
said in a statement.

The Illinois State Medical Society and ISMIE Mutual Insurance Company, the state’s largest medical insurer that’s owned and operated by doctors, backed the 2005 “caps” legislation and opposed the judge’s decision. “This is only ‘round one’ in the battle to uphold these reforms, which have been crucial in slowing the number of doctors fleeing our state and helping in the recruitment of specialists,” said Dr. Rodney Osborn, medical society president. “Getting rid of the 2005 medical litigation reforms now would be like benching your starting lineup in the toughest game of the season. We can’t afford to forfeit patients’ access to care.”

In April, ISMIE announced an $18.4 million dividends program for policyholders because of the company’s improved financial picture after the caps on non-economic damages became law.

The Illinois Hospital Association agrees with the doctors and still uses the word “crisis” to describe the effect of high malpractice insurance premiums that it says deter doctors from practicing in Illinois. “This comprehensive law is helping restore predictability to Illinois’ broken liability system that has been driving up costs for hospitals and physicians to unsustainable levels and that has jeopardized the state’s health care system,” wrote Ken Robbins, association president, in a statement.

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