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A Third Strike for Tort Reform
(July 18, 2014)
In 2010, the Supreme Court of Illinois ruled that the state’s five-year-old statutory limit on the recovery of non-economic damages in medical malpractice cases violated the state constitution’s separation of powers clause.
The court’s decision in the case Lebron v. Gottlieb Memorial Hospital spoke definitively on the issue of compensatory damage caps, declaring that the legislature had infringed on the judiciary’s power. But the topic of tort reform continues to provoke heated debate throughout Illinois.
Timothy Cavanagh, a partner at Cavanagh Law Group, suggests that the matter remains contentious because it is a political issue as well as a legal one. “You hear a lot of rhetoric from politicians and the chamber of commerce,” he says, “but we live in a country where the rule of law stands.”
Still, this isn’t the first time that the legislature has pursued damage caps. The state first attempted to limit recovery on medical malpractice injuries in 1975; but a year later the court ruled the cap unconstitutional. Then, in 1995, the legislature passed a comprehensive tort reform package that capped non-economic damages in a variety of civil cases. Two years later, the court invalidated that legislation.
“They’ve been rebuffed by the Supreme Court [of Illinois] on three separate occasions for the same reasons over the last 30 years, and at some point you would think they’d realize that it’s just not going to work,” says Philip Harnett Corboy, Jr., a partner at Corboy & Demetrio.
Nevertheless, Corboy continues, “Politics in Illinois is a contact sport, and big corporations, the chamber of commerce, the insurance industry, the medical industry, the American Medical Association, and hospital associations have chosen to politicize their involvement in the civil justice system.”
Indeed, before the legislation passed in 2005, proponents argued that the caps would stem a perceived flow of doctors from the state by addressing the increasing cost of malpractice insurance premiums.
But Jeffrey Goldberg—a plaintiff’s attorney in the Lebron case—argues that there are no legitimate statistics showing that medical malpractice premiums or verdicts have contributed to a shortage of doctors in the state. “I’ve heard a lot of rhetoric about it but never statistics,” he says.
Todd Smith, a partner at Power Rogers & Smith, also disputes the claim that doctors are leaving the state. “When you look at the numbers from the American Medical Association, there hasn’t been a decline in the number of doctors in Illinois—there’s been an increase,” he says.
Smith adds that special interest groups continue to lobby the legislature on tort reform because they can afford to do so. “They have virtually unlimited funds, and when they lose like they did in Lebron, they go after our judges, as they did a year ago when they went after now Chief Justice Thomas Kilbride,” Smith says, referring to Kilbride’s successful campaign against a business-backed movement aimed at defeating his retention bid.
During that campaign, Kilbride raised $2.8 million—a number Corboy finds worrying. “Our judges who sit on the highest court shouldn’t have to worry about spending millions and millions of dollars to get elected to those positions or to be retained,” he says.
Corboy also contends that the campaign against Kilbride derived from his vote earlier that year to overturn the malpractice statute. “The one caveat [to the court’s decision in the Lebron case] is that the Supreme Court changes, which is why they’ve now gotten involved in judicial races,” he says.
Instead of limiting damage caps, politicians should focus on lowering medical errors and instituting insurance reform, suggests Goldberg. “Tort law has been very successful at creating safer products for the general public, and it’s doing exactly the same thing in the medical arena,” he says. “One has to review what the insurance companies are doing and decide whether it’s reasonable to regulate the insurance industry … rather than putting the onus on the injured person.”
In the meantime, personal injury attorneys assert that the Lebron decision has allowed them to pursue cases that would have been economically infeasible with the caps in place. “We handle very significant multimillion-dollar cases, and a cap [on non-economic damages] denies my clients their right to full and fair compensation,” says Cavanagh.
Cavanagh, who is a board member of the Illinois Trial Lawyers Association, notes that the organization stands ready to defeat any future attempts to cap damages. “We live in a society where if you commit a wrong, you should pay for that damage,” he says. “What is so bad about 12 unbiased people deciding an issue?”