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Illinois Supreme Court Strikes Down Caps on Medical Malpractice Damages

Prof. Ralph L. Brill

Two weeks ago, the Illinois Supreme Court held unconstitutional the state statute that placed caps on non-economic damages in medical malpractice cases and wrongful death cases based on medical malpractice.  735 ILCS 5/2-1706.5).  The statute was passed by the legislature because of a perceived “health care crisis.” The $500,000 cap on non-economic damages caused by doctors, health-care professionals, and their staffs, and the $1,000,000 cap on non-economic damages caused by hospitals, hospital personnel and hospital affiliates, were voided on the ground that the legislature had violated the separation of powers clause of the Illinois Constitution. (Ill. Const. 1970, art. II, sec. 1). In dicta, the Court affirmed support for its previous holding that caps on medical malpractice damages constitute special legislation, in violation of the Illinois Constitution.  Wright v. Central DuPage Hosp. Ass’n, 63 Ill. 2d 313 (1976); Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997).

Three members of the Chicago-Kent faculty –Prof. Nancy Marder, Distinguished Prof. Richard Wright, and I – joined a large number of other law professors from around the country given permission by the Court to file an amicus curiae brief in support of the plaintiffs.  In it, we argued that the caps on non-economic damages in medical malpractice cases are unconstitutional special legislation.  Professor Marder is a leading expert on the role of juries.  Distinguished Professor Wright and I have each taught Torts for many years. The lead author on the brief was Professor Neil Vidmar, Duke University School of Law, a leading Torts scholar. 

The brief was a classic “Brandeis Brief”, attempting to prove by reference to sound empirical data that there really was not a major “health care crisis” in Illinois as was claimed by the proponents of the legislation, that the caps therefore irrationally discriminated against one class of litigants – victims of medical malpractice, and that the legislation granted special benefits to one class of defendants – medical care providers.  Thus, the statutory caps constituted special legislation in violation of the Illinois Constitution.

Over the next couple of weeks, I will post additions to this blog, in which I will try to elaborate on the empirical evidence cited in the brief.  I will discuss the evidence that showed: 1. The Illinois caps-on-damages legislation created arbitrary distinctions between classes of victims; 2. The caps created arbitrary distinctions between classes of defendants; 3. The legislature lacked a rational basis for these distinctions since: a. the supposed “exodus” of physicians in Illinois did not exist; b. there never has been a decline in the number of physicians in Illinois nor in rural areas of the state; c. there has not been a decline in the number of “critical medical specialists” either in net numbers or the ratio of physicians per capita.  Further, this and future postings will point out there has not been a “torrent of malpractice claims,” nor an “explosion of the size of pay-outs” justifying a claimed conclusion that there has been a “crisis.”  Finally, I will point to numerous studies, by non-biased groups, that demonstrate that the main causes of malpractice lawsuits are liability insurance company practices, as well as the existence of a large amount of medical malpractice (much of which does not result in medical malpractice lawsuits).

 
Part One: Lebron v. Gottlieb Memorial Hospital, No. 105741 (Filed Feb. 4, 2010).  

Several cases were consolidated to test the validity of the medical malpractice caps.  The Circuit Court determined that the statutory cap on non-economic damages operates as a legislative remittitur in violation of the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, sec. 1).  The Supreme Court affirmed.  Justice Fitzgerald wrote the opinion for the Court, joined by Justices Burke, Freeman and Kilbride.  Justice Karmeier concurred in part, and dissented in part, joined by Justice Garman.  Justice Thomas took no part in the decision.

The Court relied on Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997) for its determination that the cap statute is an unconstitutional invasion of the separation of powers doctrine.  Justice Fitzgerald repeated Best’s explanation that the purpose of the separation of powers clause “is to ensure that the whole power of two or more branches of government shall not reside in the same hands.”  179 Ill. 2d at 410.  He repeated that “[e]ach branch of government has its own unique sphere of authority that cannot be exercised by another branch,” and concluded that the “legislature is prohibited from enacting laws that unduly infringe the inherent powers of judges.”  Id. at 410-411. 

The majority likewise relied on Best’s determination that the cap on damages amounted to a legislative remittitur, the decision to lower the damages awarded by a jury as excessive. That decision normally is left to the trial judge based on the particular evidence and circumstances of the case.  Id. at 413.  The provision in question unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury’s assessment of damages is excessive within the meaning of the law.  Id. at 413-414.  Under section 2-1706.5, the trial court is required to override the jury’s deliberative process and reduce any non-economic damages in excess of the statutory cap, irrespective of the particular facts and circumstances, and without the plaintiff’s consent, which is required for a remittitur to be entered.

The Court distinguished cases upholding the right of the legislature to limit damages for statutorily created torts (e.g., Wrongful Death or Dram Shop) on the common sense basis that when the legislature creates a right of action it may limit its application or extent.  It also distinguished the legislature’s abolition of punitive damages, since that change in the law did not limit a litigant’s action for compensation for his/her damages, but served to determine whether to further a societal purpose of punishing the wrongdoer.  In addition, the Court agreed that the legislature could entirely change the common law, such as substituting the Worker’s Compensation administrative remedy for common law negligence, since all of the common laws defenses and limitations (e.g., the fellow-servant rule, contributory negligence, assumption of risk) effectively had prevented employees from recovering compensation for work-related injuries.  However, the Court emphasized, the legislature’s right to change the common law still had to be done within constitutional bounds.  Citing People v. Gersch, 135 Ill. 2d 384, 395-398 (1990).

In my next posting about the Lebron case, I will summarize the empirical research cited by the amicus brief on the claimed crisis in health care provision due to the argument that doctors fleeing the state or giving up “critical care” specialties.  I will also analyze the legislature’s supposed basis for limiting non-economic damages as its remedy.

  

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