Personal Injury Law

Illinois Medical Malpractice - Illinois Tort Reform Statute Provision on Damage Caps Declared Unconstitutional - Are Missouri's Medical Malpractice Damage Caps Constitutional?

By Benjamin J. Sansone, Esq.

As an Illinois injury lawyer with a significant Missouri and Illinois medical malpractice legal practice, I am always keeping an eye on the interests of future injured victims and whether or not they will have any rights left in the years to come as the recent trend in Misosuri and Illinois, as well as other states. For the last 10 years their has been a constant and significant erosion of medical malpractice victim rights. Illinois is starting to swing that pendulum back to where it belongs, recently, a Circuit Court Judge for Cook County Illinois ruled that the damage cap provision of the 2005 Illinois Tort Reform Statute (Public Act 94-677) which limits non-economic damages to $500,000 against doctors and $1,000,000 against some hospitals, is unconstitutional. The Judge ruled that the act infringed on the jury's deliberation and amounts to a "legislative remittur" of the jury's findings. Remittur is when the court reduces a verdict based on several factors, but essentially the court will reduce the verdict amount if it is clearly excessive based on the facts of the case. The tort reform act is imposing remittur without consideration of the merits of the specific case, thus infringing on the provence of the jury and unconstitutional. Moreover, the tort reform act did not contain a severability clause, a clause that allows the rest of the act to survive if one portion is found unconstitutional; therefore, the entire act is deemed unconstitutional.

This is clearly a victory for victims and the trial lawyers bar, particularly Illinois injury trial lawyers (one of the few only organizations that represent the interests of future injured parties).

Clearly, this ruling will be challenged on appeal and this issue will likely go to the Supreme Court of Illinois despite the ruling on the appellate level. However, this ruling represents a victory in one of many battles of the war between medical malpractice victims and the insurance companies using their money and political influence to unfairly change the laws to protect their pocket books at the detriment of innocent people injured by the carelessness of others who they believe deserve special treatment because it says M.D. after their name.

Missouri's tort reform act that was also signed into law in 2005, has lower damage caps of $350,000 (which can not be adjusted for inflation) as well as several evidentiary rules that improperly tips the scales of justice in favor of insurance companies. A few examples. the collateral source rule, the defendant can get in evidence that the victim had insurance coverage or other financial support to help pay the bills, but the jury cannot be allowed to know the defendant has liability coverage, to even mention it or imply it is grounds for a mistrial. The other examples are presumption of bills paid as damages, requirement of a certificate of merit by a specialist in the exact same field for filing a Missouri Medical Malpractice case, venue rules as the place of injury as the only venue for the cause of action, and the list goes on, not even to mention the changes to Missouri's Workers Compensation laws.

Hopefully some cases facing the same issues for Missouri's 2005 Tort Reform act will start to raise these same questions and strike portions of the Tort Reform act as unconstitutional as well. However, the cases have to work their way through the system but we should start seeing them soon.

Full post as published by Missouri Injury Law Blog on January 04, 2008 (boomark / email).