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On Oct. 31, 2005, Abigaile LeBron was delivered via cesarean section at Gottlieb
Memorial Hospital in Melrose Park. She was born with cerebral palsy and severe
brain damage. A year later, her mother Frances filed a medical malpractice
lawsuit against the hospital and her doctor and nurse.
The suit, which alleges that Abigaile will require specialized care for life,
challenges the constitutionality of a state law that limits non-economic, or “quality of life,” compensation for medical malpractice plaintiffs to $1 million from hospitals
and $500,000 from doctors. Last November, the Cook County circuit court sided
with the LeBrons, declaring the law unconstitutional. The defense appealed to
the Illinois Supreme Court, where arguments begin in Springfield Nov. 13
(today).
Joanne Doroshow, executive director of the Center for Justice & Democracy, a nonprofit consumer rights organization, advocates publicly for the
LeBrons and other medical malpractice plaintiffs. Doroshow feels confident that
the state’s Supreme Court will overturn the law, enacted in 2005, since justices ruled
against similar legislation in 1976 and 1997.
“This is the third cap that Illinois has tried to pass,” Doroshow says. “The last two times, the Supreme Court said it violated the constitution of the
state, and there’s really no difference at all in this case.”
In the 1976 Illinois Supreme Court case, Wright v. Central DuPage Hospital Association, the court ruled that a $500,000 cap on non-economic damages benefited special
interest groups but denied equal protection to injured victims of medical
malpractice.
The court ruled similarly in the 1997 case, Best v. Taylor Machine Works, finding a $500,000 cap unconstitutional on the grounds that it granted special
privileges. Justices also said it violated “separation of powers” by removing the authority from judges and juries to decide full compensation in
medical malpractice cases.
Doroshow and others at the Center for Justice & Democracy say it’s a civil rights matter. There is no limit on the amount of compensation
plaintiffs can receive in economic damages, such as lost earnings, so there isn’t reason to limit the amount of compensation they can receive in non-economic
damages — vital to children and adults who don’t earn salaries.
“In a very, very serious case, a cap like this is very cruel to the patient,” Doroshow says. “Especially if we’re talking about a child that is catastrophically injured and will need
compensation for the rest of their life. There really is a tremendous hardship
on families.”
Those on the other side of the issue, including the American Medical Association
and the Illinois State Medical Society, believe that the law enables all
Illinois citizens to access better health care.
In a brief filed with the Illinois Supreme Court in support of the appellants,
the organizations state that because of the caps on malpractice awards, “access to health care is widening, malpractice insurance rates have decreased,
competition among insurers has increased, and health care providers are
returning to or deciding to remain in Illinois.”
They argue that before the law was passed, health care services were reduced or
eliminated to divert resources to cover the rising expense of liabilities. In
turn, they say, increasing insurance premiums led to a shortage of doctors in
Illinois, especially in high-risk specialties like neurosurgery that experience
a higher risk of malpractice litigation.
The AMA and the ISMS conclude that the General Assembly resolved a major
political question by weighing the public interest in affordable and accessible
health care against the public interest in compensating those who have been
injured by medical malpractice.
They state that the 2005 cap is “rationally grounded on the principle that large awards of non-economic damages
in medical malpractice cases, whether by judges or by juries and even when
sustained by the evidence, lead to excessive social costs.
“Those costs, which may be deduced from statistical evidence, from anecdotes, or
even from reasonable conjecture, diminish the affordability and availability of
health care in Illinois.”
When asked about the medical associations’ claims, Doroshow answers that it wasn’t the cap on non-economic damages, but medical malpractice insurance reforms
passed at the same time, that lowered insurance premiums and began to stabilize
Illinois’ health care.
“When doctors say they’re leaving the state, it’s about what they say — the insurance rates are too high,” Doroshow says. “And what we know is that when the rates are high, as they are periodically in
every state, it has to do with a lack of regulation in the industry. Before the
medical malpractice regulation law was passed alongside the cap, there was no
regulation of insurance rates in Illinois.”
As the Illinois Supreme Court considers the constitutionality of the cap on
non-economic damages, Doroshow adds, they’ll also be forced to consider the medical malpractice reform legislation since
the two were passed together. If justices strike down the law, she hopes the
General Assembly will return to reauthorize the regulation.
“That’s the only thing that’s going to keep doctor’s insurance rates under control,” she says.
Contact Amanda Robert at arobert@illinoistimes.com.
This article appears in Nov 6-12, 2008.
