Civil damages bill in Illinois could reignite ire of doctors

By Adam Jadhav
ST. LOUIS POST-DISPATCH
http://www.stltoday.com

Yet another battle between plaintiffs lawyers and pro-business groups is under way in the Illinois Legislature, this one over the idea of civil damages for mental anguish.

The flashpoint is a proposal that would allow family members of someone who has died to seek damages specifically for “grief, sorrow and mental anguish” — in addition to other economic and noneconomic damages — in any wrongful death lawsuit. The bill goes to the state Senate this week; it passed the House on Friday with nearly all Democrats in support and all Republicans in opposition.

Trial attorneys say the changes to Illinois civil justice codes would provide compensation for what amounts to heartache. But the idea has angered businesses and in particular doctors and hospital administrators who say it’s just another way for lawyers to seek money.

The measure would cover all wrongful-death cases — drunken driving crashes or on-the-job accidents, for example — but it also would apply to medical malpractice, always a hot-button issue.

“It was a bill I was torn on because of the circumstances,” said state Rep. Thomas Holbrook, D-Belleville, who with state Rep. Dan Beiser, D-Alton, were the only Democrats who voted against the measure. “I have a fear that it will reopen the wounds from the horrendous malpractice debate that was going on in our area.”

Just a few years ago a political firestorm erupted in the Metro East area when dozens of doctors closed shop in the face of skyrocketing costs for malpractice insurance. Companies claimed that the threat of lawsuits and massive damage awards were driving up rates. Lawyers said insurance companies had hoodwinked the public while trying to justify profits.

Both sides entered into a shaky compromise in 2005, when Gov. Rod Blagojevich signed a law that simultaneously reformed the insurance industry to foster competition and instituted caps on noneconomic damages — $500,000 per doctor, $1 million per hospital — in medical malpractice cases.

Those caps — similar to ones struck down by the Illinois Supreme Court in previous years — are now being challenged as unconstitutional through a lawsuit in Chicago.

“I think that our medical community is a little fragile right now,” Holbrook said. “They need some reassurance that we still want to have our doctors here.”

But lawyers insist that the measure is completely in line with common sense — if someone is killed because of the negligence of another, they say, the negligent party should be forced to pay for the mental anguish of survivors. Similar provisions are on the books in more than 20 other states, including Delaware, ranked recently in a tort-reform sponsored poll as the most friendly to business.

Said Rex Carr, a prominent East St. Louis plaintiffs attorney, “This bill defines what the loss really is. The loss really is the grief that you have from the premature death of a loved one.”

Illinois’ wrongful death law already allows people to sue for a wide range of noneconomic damages under the term “loss of society,” which includes love, care, comfort, protection, guidance, advice and affection. Opponents of this bill say additions such as grief and sorrow seem redundant.

The president of the Illinois State Medical Society, Dr. Rodney Osborn, said, “All this does is simply inflate the award, with an emotional response that really has no bearing to the ultimate loss and need for compensation.” The medical society opposes the bill, as does the Illinois State Hospital Association and pro-business groups such as the Illinois Civil Justice League.

Doctors also say the new category of damages is an attempt to bypass the state’s cap on noneconomic damages in medical liability cases. Osborn acknowledged that these new areas for potential compensation appear to be subject to the current caps but said he was fearful of a court reinterpreting the statute or the possibility of the caps being struck down.

Trial lawyers, whose fees would admittedly rise if juries handed out more money because of the law, say corporations and doctors are just worried about their own pocketbooks.

“They just don’t want to have to pay for their mistakes,” Carr said.
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