CapitolFax and the Chicago Tribune are reporting a deal between Governor Rod Blagojevich, Senate President Emil Jones and House Speaker Michael Madigan for Illinois Medical Malpractice reform that worked across the aisle to gain bipartisan support. While not everyone’s happy, and Senator Emil Jones has suggested he might not vote for the final bill, Governor Rod Blagojevich has said he would sign the proposed deal and may well get a chance to do it.
The Details To Date
-> Non-Economic Damage Caps or Limits
$1 million for hospitals and $500,000 for doctors
-> Pre-Certified Merit Before Trial
Plaintiffs must present a report by a physician saying their claims merit a trial.
-> Internet Site With Doctor Data
The public would be able to view online doctor data including criminal convictions, malpractice awards and incidents of discipline from the most recent five years.
-> State Veto On Malpractice Insurance Increases
State regulators could reject insurance rate hikes if they found them excessive or unjustifiable.
-> More Medical Investigators
The proposal would increase the number of medical investigators in charge of overseeing doctors’ discipline.
-> Charitable Medical Immunity
Retired physicians working at free medical clinics would have immunity from prosecution (the Tribune seems to suggest this may be for all liability - but it isn’t spelled out).
Clearly this was a decent victory for the minority state Republican Party (who got one of their major provisions through - “pain and suffering” damage caps) - and a loss for the Illinois Trial Lawyers. GOP House Minority Leader Tom Cross, who earlier was highly critical of higher caps on pain and suffering (from the then $250,000 doctor/$500,000 hospital) - something that a number of people criticized as grandstanding - seemed satisfied with the deal, “At the end of the day, you have to put on your public policy hat and ask, What’s best for the state of Illinois?” [The two previous links are no longer on the JoinCrossBlog site which is why I used Google cache.] The Illinois Trial Lawyers, who fought against the caps, pointed out that they would likely be found unconstitutional. From the Tribune:
“Keith Hebeisen, president-elect of the Illinois Trial Lawyers Association, said that if the courts follow state Supreme Court precedent, they will strike down the measure as they have done with previous laws that capped damages.
The most recent decision came in 1997, when the high court struck down a sweeping tort reform law that included a $500,000 cap on non-economic damages in all cases, not just medical malpractice.
Justices said the cap violated the separation-of-powers doctrine, because in passing it the legislature had taken over the duty of the judiciary to reduce excessive jury awards. The court also said the cap violated the state constitution’s ban on ’special legislation’ because it discriminated disproportionately against plaintiffs who have suffered the most horrible injuries.
‘If they follow their precedent, there’s no wiggle room,’ said Hebeisen.”
I have argued consistently that caps are wrong - and the above description of them discriminating “disproportionately against plaintiffs who have suffered the most horrible injuries” is a good summary of my view. I don’t see how you can place an arbitrary dollar amount on a lifetime, perhaps many decades, of unrelievable pain and suffering caused by negligence (with the attendant social effects of family strain (if the family even stays together), depression, etc.) - but I know that $1.5 million isn’t enough.
While I’m not crazy about some other aspects of the proposed legislation, overall it may be a step in the right direction. It doesn’t come close to national (or statewide) healthcare which is the real issue, nor does it seem to focus much on reducing error through technology or technique (both of which are worthy goals), nor is it really much focused on the patient experience of the healthcare system (which needs considerable improvement) with the exception of the online doctor database and protecting free clinics (with the unfortunate tradeoff of providing needed healthcare by waiving the right to redress injury) - but it may make some aspects of healthcare more responsive, efficient and better for both practitioners and to some extent recipients. If it does that, then the agreement represents at least a small measure of progress - and that may be the best we can get for now.
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