Birth Trauma / Medical Malpractice

In a controversial ruling that could have national ramifications, the Illinois Supreme Court Thursday overturned the state’s cap on damages for pain and suffering for medical malpractice, deeming the limit unconstitutional. http://www.state.il.us/court/OPINIONS/recent_supreme.asp

In the decision, which critics said will lead to higher damage awards, the high court voted 4-to-2 to throw out the limits on “non-economic” damages that can be recovered in malpractice suits. The Illinois cap had put a $500,000 maximum on damages that could be collected from physicians and $1 million from hospitals.

In its ruling, the court said that the 2005 law violated the Illinois constitution regarding separation of powers. The Court ruled that this law gave the lawmakers control of decisions that should be in the hands of judges and juries.

This marks the third time that the Illinois Supreme Court has overturned malpractice-award caps that lawmakers had enacted in the state.
http://www.chicagotribune.com/business/ct-biz-medical-malpractice-cap-feb04,0,348689.story

The test case that prompted the ruling is that of Abigaile Lebron, now 4, who sustained severe brain damage when she was born through a Caesarian section procedure in 2005. Her family sued a doctor and Gottlieb Memorial Hospital in Melrose Park, Ill., for medical negligence, charges that the physician and hospital deny.

The Wall Street Journal reported that the girl suffered from “cerebral palsy and other impairments.” http://online.wsj.com/article/SB10001424052748703357104575045624066646704.html?mod=googlenews_wsj
The young girl, Abigaile, is now wheelchair-bound.

In Thursday’s ruling, Illinois Chief Justice Thomas Fitzgerald wrote in the majority opinion that the court was not swayed by the fact that many states have imposed malpractice-award caps.

“That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute,” Fitzgerald wrote. http://www.chicagotribune.com/news/chi-ap-il-medicalmalpractic,0,4062339.story

But in a dissent, Justice Lloyd Karmeier wrote, “We have no business telling the General Assembly that it has exceeded its constitutional power if we must ignore the constitutional constraints on our own authority to do so.”

The Illinois high court’s decision drew fire from a variety of sources. The American Medical Association (AMA) immediately criticized the ruling.

“Today’s court decision threatens to undo all that Illinois patients and physicians have gained under the cap, including greater access to health care, lower medical liability rates and increased competition among medical liability insurers,” AMA President Dr. James Rohack said in a statement.

The New York Times noted that the Illinois decision “held a particular sting” for the AMA, since it is headquartered in Chicago. http://www.nytimes.com/2010/02/05/us/05malpractice.html


And The Chicago Tribune blasted the ruling in an editorial, warning, “This is a disastrous decision…Watch out for what happens now.” http://www.chicagotribune.com/news/opinion/editorials/ct-edit-medmal-20100204,0,5948924.story

“Malpractice costs were skyrocketing in Illinois because insurers were afraid to do business here,” The Tribune editorial said. “They were afraid of runaway jury verdicts…Malpractice premiums in Illinois were particularly egregious for doctors in riskier specialties such as obstetrics and neurosurgery. As a result, doctors were leaving, particularly doctors in rural areas. They couldn’t afford to practice in their communities. That made it more difficult for patients to find the care they needed. The 2005 law eased the crisis. Malpractice premiums declined. The exodus of doctors stopped.”

But opponents of malpractice-award caps, which are being considered by lawmakers in Washington, were jubilant.

The American Association for Justice, once called the Association of Trial Lawyers for America, said the Illinois ruling showed “why federal efforts to put arbitrary limits on the amount injured patients receive won’t pass muster or fix America’s broken health system,” The Times reported.

The Illinois Trial Lawyers Association also lauded the ruling.

“The Illinois Supreme Court has decided that the health-care crisis can not be solved by further hurting the patients who are victims of medical errors,” the lawyers’ group said in a statement.

The Illinois ruling could reverberate to the Capitol, where Republican lawmakers have called for federal caps on malpractice awards. The health-care reform House bill that Congress Democrats passed last year, and the Senate health-care bill, do not mandate any big change to malpractice rules, according to The Times.

Almost 30 states have set caps that put a maximum on non-economic damages, namely damages for pain and suffering, Reuters reported. http://www.reuters.com/article/idUSN0411041820100204
Those caps range from $250,000 to $700,000, according to the Robert Wood Johnson Foundation.

The AMA said that in 16 states courts have upheld the caps. In 11 states the limits have been thrown out.

Generally, these Caps have done little to lower rates. But whether rates are lowered or not is not the central issue. The issue is whether doctors should be given a free pass on killing and maiming those that suffer because of their mistakes. Despite the constant right wing hysteria over med mal awards, the reality is that only the most egregious conduct by doctors results in a lawsuit, and about 85-90% of even those lawsuits, result in verdicts for the doctors. A doctor has to do something truly outrageous to wind up losing a medical malpractice case.

What is violative of equal protection about a malpractice cap, is that it punishes those most severely hurt by the worst conduct of doctors. If a doctor say cuts off the wrong toe, the compensation cap of $250,000 might be adequate. But if the doctor’s wrongful conduct results in loss of the normal use of a brain, then $250,000 is not justice. Yet a cap imposes the worst injustice on those who have the worst harm. That is unfair and unjust.