Two Illinois towns take tort reform into their own hands

Their action has mayors statewide talking about the possibility.

By Tanya Albert amednews correspondent — Posted Aug. 9, 2004

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Carbondale, Ill. -- Nestled in the wooded acres of southern Illinois, Carbondale isn't exactly small town, but it isn't big city, either. Doctors' offices dot the streets around city hall in this community of nearly 25,000 people. So when high liability insurance premiums began driving physicians from the area, it didn't escape Mayor Brad Cole's attention.

The only two neurosurgeons covering the southern third of the state moved away earlier this year. Family physicians were leaving general practice to serve prison inmates or work at a federal clinic. Some obstetricians and primary care physicians stopped delivering babies.

After the state Legislature let reforms aimed at lowering or at least stabilizing physicians' liability insurance premiums languish this year, Cole decided to try something new: city tort reform. "We had to do something," he said. "We are in a truly desperate situation."

His effort succeeded. The Carbondale City Council July 6 passed an ordinance that includes caps on noneconomic damages that can be awarded in medical malpractice cases. The measure also requires that such lawsuits be filed in the county where the alleged malpractice took place.

Carbondale inspired its neighbor Marion, population 16,624, which managed to pass its ordinance first, on June 28. Nearby Herrin -- home to 11,406 -- passed a resolution supporting Carbondale's action, and Mount Vernon, a community of 16,486, was considering a local ordinance at press time.

No one is certain that the measures -- believed to be the first of their kind -- would hold up before the Illinois Supreme Court, which in the 1990s struck down a state law that capped noneconomic damage awards.

But physicians say it is a relief to have their local elected officials take their plight seriously and at least try to do something to help them, even if the court ultimately strikes it down.

"It shows that there is support in the community," said Carbondale anesthesiologist Mark Garwin, MD. "And it shows that, from a political standpoint, they understand the implications of not having physicians in the community."

"It's been the most encouraging step in the process so far," added Herrin orthopedic surgeon Tom Davis, MD. "Our local cities are stepping up to bring the problem to people's attention."

A growing void

Experienced physicians in southern Illinois who have helped build up the medical community in the past three decades say they are frustrated to see their efforts undermined by rising liability insurance rates.

"When I came here, I remember putting people with head injuries on a helicopter and flying them outside the area," said Herrin family physician William Hays, MD, a southern Illinois native in his 31st year of practice. "I also remember those helicopters sometimes not being able to take off because of the weather."

Now the situation has come full circle, and serious trauma cases must be airlifted out to St. Louis or Cape Girardeau, Mo.

City leaders say they are increasingly alarmed at the number of doctors no longer delivering babies in rural areas. And even general practice physicians are harder to come by, they say.

"If doctors pick up and leave, there is a void. Where are people going to get primary care?" asked Marion Mayor Robert Butler.

The mayors and physicians are quick to point out that losing even just a few doctors in their part of the state has a far greater impact on access to health care than if that number were to leave Chicago.

"We're all busy," said Carbondale general surgeon Marsha Ryan, MD. "If I were to quit, no one would be there to fill the void. There's just enough of us to go around."

Giving up part of practice

Marion general surgeon Clay O. DeMattei, MD, has given up vascular and a few other high-risk surgeries and worries about who will ultimately replace him and his colleagues. "What happens when I retire ... who will be there?" he said.

Recruiting physicians is not easy.

"If you are coming out of residency training with $150,000 in debt, why would you want to come here and make $30,000 or $40,000 a year?" Dr. Garwin said.

Herrin orthopedic surgeon Richard Morgan, MD, sees firsthand how the problems are influencing where the next generation of doctors will practice. He has a son in medical school at Southern Illinois University in Carbondale.

"His classmates are fully aware of what it would cost to come here," Dr. Morgan said. "Most are looking elsewhere."

City leaders felt those points were lost on Illinois lawmakers, who failed to pass reforms before they wrapped up their legislative session this year.

"You need to have doctors here, and they need to do what they are trained to do," said Herrin Mayor Victor M. Ritter. "We need more legislators who are statesmen and not politicians."

To get around the state Legislature, the mayors took a creative approach.

Will it work?

Carbondale and Marion passed their ordinances under Illinois' "home-rule" authority. Under home rule, cities have a broad right to pass laws dealing with issues of particular concern in their communities. Cities with more than 25,000 residents are entitled to home rule automatically. Residents in smaller cities can adopt these powers through a referendum.

"Under home rule, we have the authority to do what we did," Cole said.

Carbondale's and Marion's tort reform ordinances cap noneconomic damages at three times the economic damages.

Marion's law also exempts health care professionals who act as Good Samaritans from lawsuits and requires a plaintiff who loses a case against a physician to pay the physician's legal fees.

Everyone agrees that the fate of these measures will be decided in the courts once a medical malpractice case is brought and the cap is challenged.

Trial lawyers believe that the ordinances are unconstitutional and unfair to injured patients.

"The [Illinois] Supreme Court has already spoken and said that caps violate equal protection," said Douglas Dorris, a Marion trial lawyer who primarily focuses on personal injury cases, not medical malpractice. "I don't think that changes whether the city or the state passes a cap."

City officials hope that because they have not set the caps at a specific dollar amount, the high court might disagree and find them constitutional.

Taking the concept on the road

What started as an idea in southern Illinois has quickly spread as a topic of discussion throughout the state, according to Thomas Pliura, MD, an emergency physician and lawyer from LeRoy, Ill. He sent letters to officials in 30 cities asking them to consider passing similar laws under home rule.

"We're getting 'that's an interesting concept' from the cities we are talking to," he said.

The Illinois State Medical Society welcomes the effort. "It shows the resolve of the people," said President Kenneth J. Printen, MD. "It's a grassroots movement, which is important on all health care issues."

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