Ill. medical malpractice caps ruled unconstitutional

February 5, 2010 4:39:40 AM PST
Groups representing Illinois hospitals and doctors are disappointed by an Illinois Supreme Court ruling involving caps on some medical malpractice lawsuit awards.The state's top court said a Blagojevich-era statute limiting amounts juries could award for pain and suffering is unconstitutional.

In this case it is the Illinois constitution that we are talking about, but the principle the justices invoked was something that applies across the land -- the separation of powers. Illinois' top court found that a law created by the legislature took away the power of the judiciary -- specifically juries -- and that trumps whatever good reasons may have been behind creating a law that would cap non-economic losses for victims of medical malpractice in Illinois.

"She is totally wheelchair-bound, always will be. She has cognitive deficits cannot perform, speak or do the things normal child her age can do. She is fed through a g-tube, she cannot even take food orally. That's the way she will live the rest of her life," said Jeffrey Goldberg, attorney for Abigaile LeBron.

Four-year-old Abigaile LeBron's situation has been the test case for a group of challenges to Illinois law 94677 which ironically was passed around the time she was born. It caps damages for pain and suffering at $1 million for hospitals and half that for individual doctors. Her family is suing because they say her mother wasn't given an emergency caesarian section in a timely manner at Gottlieb Hospital when problems developed during birth.

"Limiting her recovery to only $1.5 million would not provide any compensation for the fact that literally her life has been taken from her," said Goldberg.

That figure would be beyond what a successful suit would get from defendants for what's called a life plan for a victim's care. But the Illinois trial lawyer's association says today's ruling won't stop insurance and health care companies from lobbying for a new restrictions. Pete Flower of the Illinois Trial Lawyers Association says what's needed to lower medical malpractice costs is insurance reform.

"The insurance reform allows the premiums to potentially be affected by more companies coming in, driving down the price like we do on every other resource in this country. It's competition," said Flower.

But Dr. Lewis Blumenthal disagrees. The obstetrician-gynecologist was at the forefront of efforts to keep members of his specialty in Illinois after several reports said in the middle part of the last decade doctors were fleeing Illinois due to malpractice insurance premiums that were well into the six figures.

"If there are no physicians practicing medicine our system is going to be in disarray and physicians are worried that they are going to be practicing in a hostile environment," said Dr. Blumenthal.

Blumenthal says after the 2005 caps were put in place the shortage of specialists eased off. But those who are applauding Thursday's ruling say what's at stake really has to be fixed at a higher level.

"There is no doubt that he mega-billion dollar healthcare industry is closely tied to the hip of the mega-billion dollar insurance industry," said Lynda Delaforgue, Citizen Action Illinois.

Late Thursday afternoon those industries reacted. Gottlieb Hospital said it is disappointed in Thursday's ruling and "the current tort system results in an inequitable distribution of health-care resources." The Illinois Hospital Association says this decision will "renew the malpractice lawsuit crisis."

Abigaile LeBron's case hasn't been decided by any jury yet. When it gets there, like others, there won't be a limit on compensation for pain and suffering.