Illinois judge voids cap on liability awards

The Illinois cap on noneconomic damages in medical liability cases hangs in the balance, now for the third time.

A trial court struck down the award limit as unconstitutional. A number of other state tort reforms were felled along with it. The Nov. 13 ruling propels the issue directly to the state Supreme Court.

Cook County Circuit Court Judge Diane J. Larsen said the 2005 law -- which limits pain and suffering damages to $500,000 for physicians and $1 million for hospitals -- violates the separation of powers between the Legislature and the judiciary. Her opinion suggests that it's up to the courts, not lawmakers, to decide awards.

In addition, the decision invalidates a host of other reforms included in the statute, because those provisions were inseparable from the cap under the law. Among them, the court voided measures that:

• Increase the affidavit-of-merit requirements.
• Raise standards for medical expert witnesses.
• Allow periodic payments of jury awards by defendants.
• Exclude doctors' sympathy statements from being used against them in court.

The case before the court consolidated three lawsuits questioning the validity of the reforms. At press time in mid-November, Illinois State Medical Society officials said an appeal was imminent, though it had not yet been formally filed. Because the ruling hinges on the statute's constitutionality, the high court automatically would take up the appeal.

Physicians decried the trial court ruling and vowed to fight it.

As they gear up for the court battle ahead, doctors are concerned that Illinois' medical liability climate -- which they say has improved since the 2005 reforms -- will be further endangered if the decision stands.

American Medical Association Board Trustee Robert M. Wah, MD, called the decision "a step backward for Illinois patients and physicians as it once again puts patients' access to care in jeopardy."

Illinois is one of 17 states the AMA has declared to be in crisis because unaffordable insurance premiums have deterred doctors from practicing there. State doctors maintain that the cap has helped repair that.

Illinois State Medical Society President Rodney C. Osborn, MD, said that in the past two years, the state's largest insurer, ISMIE Mutual Insurance Co., reduced rates an average of 5.2% across all specialties, and that competition in general has grown. In that time, the state also received an influx of neurosurgeons and obstetricians in areas where there were few to none of the specialists before, he said.

The court ruling is "just one step in this process, and we are very concerned it has the potential for us to lose physicians and disrupt the improvements we've seen," Dr. Osborn said. "We can't afford to forfeit patients' access to care."

Lawyers support court decision

Meanwhile, plaintiff lawyers said they are equally committed to defending what they view as a part of patients' due process rights. They praised the court's decision and argued that the cap and other reforms amount to special legislation for doctors and hospitals.

"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," said Bruce M. Kohen, president of the Illinois Trial Lawyers Assn.

Kohen said the recent decision upholds Supreme Court precedent and marks the third time in 31 years that Illinois courts have declared such restrictions constitutionally flawed.

The high court in 1976 struck down a law that limited economic and noneconomic damages in medical liability cases. In 1997, justices threw out a noneconomic damage cap imposed on all personal injury cases, which included medical liability and wrongful death lawsuits.

Medical society officials say the latest measure was carefully crafted to withstand judicial scrutiny. It applies just to pain and suffering damages in medical liability lawsuits.