Tort Reform Update

By Anthony McMahon

In July of this year the Illinois General Assembly passed 735 ILCS 5/2 or “tort reform” regulating medical malpractice lawsuits and effectively “capping” non-economic damages. While no one can say what the future holds for this area of personal injury practice one thing is for sure: it will be changing.

Illinois now joins a growing list of states (17 in all) that have some form of “cap” on non-economic damages for medical liability claims. In some of these states the tort reform legislation has been challenged on constitutional grounds that it was special legislation¹ or that it denied an injured party the right to a jury trial. The legislation usually survived the constitutional challenges. While examining each of these jurisdictions as to how the legislation impacted medical malpractice claims going forward is not possible, we do know that competition among personal injury firms for the best cases has increased and that far fewer actually went to trial. If Illinois’s version of medical malpractice reform is found to be constitutional this may be the trend in our state as well. Time will only tell. But tort reform doesn’t end with just medical malpractice reform. The non-medical industry is demanding its own. Just go to the Illinois State Chamber of Commerce’s website (www.ilchamber.org) and the tab entitled “Legal Reform” will guide you to a series of discussions on this topic. It should not be unexpected that in the future more legislation may be introduced to limit non-economic damages in most personal injury cases.

Are these types of laws right, wrong, fair, unfair? Well that might depend on where you stand politically or how you earn your paycheck. These laws may not necessarily reduce insurance costs to businesses or professionals, but it might significantly retard rate increases. Secondly, damage caps usually don’t prevent so-called frivolous lawsuits because such actions typically seek damage well within the legislated limitations. What tort reform may provide is some degree of predictability for large jury awards. In other words, the worst case scenario will be the “cap” amount plus whatever economic damages a plaintiff can prove. If a plaintiff has no economic damages then the answer is even more straightforward and obvious. But are “caps” fair?

One could write an entire article on the subjective concept of “fair.” To some, “caps” are fair and balance the so-called playing field of justice. To others, it’s as bad as if the entire civil justice system were scrapped in favor of some form of Napoleonic Code. It really comes down to and depends on how the law benefits society. After all, that’s what laws should do, right? If this civil justice reform results in lower health care costs to Illinoisans and the number of medical malpractice claims remain constant or even slightly decline then, yes, the law does provide a benefit to our community. If, however, healthcare costs do not decline and medical malpractice premiums continue to rise then government has not done its job and, once again, our elected officials have been misled by the special interests that frequent the legislative chambers in Springfield.

Time will only tell how the new medical malpractice tort reform will be addressed and how it will impact personal injury plaintiff and defense practices. Because they will effect both: less medical malpractice cases also equals less doctors that require a defense attorney’s assistance. This will hardly be a one-act play. Stay tuned.

¹ See IL Const. art. IV, § 13. for Illinois’s constitutional prohibition.