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Circuit judge rules Illinois' med-mal law unconstitutional

Posted November 13, 2007 10:00 pm

Dana Heupel

Illinois' hard-fought law that limits jury awards in medical malpractice cases is unconstitutional, a Cook County judge ruled Tuesday, setting the table for a decision by the state Supreme Court.

Circuit Judge Diane Larsen found that the 2005 law violates the state Constitution's separation of powers clause. The legislative branch of government, she ruled, cannot pre-determine how juries can decide cases in courts.

The medical malpractice case before Larsen's court involved the October 2005 birth of Abigaile LeBron. Last December, her family sued Gottlieb Memorial Hospital in Melrose Park, along with a doctor and nurse, contending that the medical team did not act quickly enough when she began to display problems.

She suffers from brain damage and other developmental disabilities.

After Larsen's ruling, opponents of the law, which became a prime legislative issue during a two-year battle to pass it, were jubilant. Supporters vowed to continue the court fight to retain the $500,000 cap on non-economic damage awards against doctors and the $1 million ceiling on verdicts against hospitals.

Abigaile LeBron "is at least a step closer to receiving some justice," said Bruce Kohen, president of the Illinois Trial Lawyers Association, which fought hard against the legislation.

"Judge Larsen's ruling provides further confirmation that despite the power and influence of the insurance lobby, laws that violate the state Constitution will not be allowed," he said.

In a written statement, Dr. Rodney Osborn, president of the Illinois State Medical Society, said, "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."

A spokeswoman for Gov. Rod Blagojevich, who said he was confident the legislation was constitutionally sound when he signed it in August 2005, said administration officials are reviewing Larsen's ruling.

Medical malpractice reform became the key issue during the 2004 and 2005 sessions of the General Assembly, with supporters saying high jury awards were driving doctors away from Illinois. The legislation resulted from an arduous compromise that crossed party lines.

Twice before, the Illinois Supreme Court has ruled that caps on jury awards are unconstitutional. Backers of the current legislation believed it would survive a constitutional challenge because it is limited only to medical malpractice awards and doesn't restrict jury verdicts involving other injuries.

LeBron's family raised a number of constitutional questions in challenging the law. Larsen, however, ruled only on the one dealing with separation of powers.

Because that provision is unconstitutional, she decided, the entire law is invalid.

Along with setting caps on damages, the law established stricter standards for expert witnesses in malpractice cases, allowed some damage awards to be paid over time, extended immunity to retired physicians providing free care, and permitted physicians to apologize to patients without allowing those apologies to be used against them in court.

It also changed some procedures involving how the state disciplines doctors, and gave state regulators more authority in reviewing malpractice insurance rates.

In her ruling, Larsen said a previous Supreme Court decision had emphasized that "we should not and need not balance the advantages and disadvantages of reform."

The Supreme Court already has decided that caps on non-economic damages - often referred to as "pain and suffering" - violate the Constitution's provision regarding separation of powers provision, she stated. That ruling "is no less applicable to the present case simply because the cap at issue applies only in medical malpractice cases," Larsen wrote.

Because the circuit court case involves constitutional questions, it will go straight to the state Supreme Court, bypassing the appellate court. The lawsuit consolidates three cases that challenge the law's constitutionality, with the LeBron suit designated as the lead case.

"We will fight to overturn today's decision so that when the 2005 reforms are ultimately upheld by the state's high court, doctors can once again look to Illinois as a good place to practice medicine, "Dr. Harold Jensen, chairman of ISMIE Mutual Insurance Co., the state's largest medical malpractice insurer, said in a prepared statement.

"We eagerly wait for that day," he said.

Dana Heupel can be reached at (217) 788-1518 or dana.heupel@sj-r.com.

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