Posted On: November 13, 2007 by Mark R. McKenna

Illinois Court Holds Caps on Medical Malpractice Damages Unconstitutional

In August of 2005, Illinois Governor Rod Blagojevich, under pressure from medical malpractice insurance companies and the Illinois Chamber of Commerce, signed a law the capped non-economic damages solely in medical malpractice cases at the arbitrary amounts of $500,000 in cases against physicians, and $1,000,000 in cases against hospitals. This law was extremely unfair, in that it singled out only the victims of medical negligence, and not any other class of litigants such as corporations or individuals suing for business damages. The cap applied to areas of damage in medical malpractice cases that are all too common in the most severe cases--wrongful death, pain, suffering, disability and disfigurement.

For example, in one of my cases, a hospital nurse erroneously listed a toxic antibiotic, gentamycin, on a transfer form to a nursing home. As a result, the nursing home unwittingly gave my client this toxic drug for one week, destroying my client's kidney functions. She now must receive dialysis for the rest of her life. She has a permanent dialysis port sticking out of her chest. At trial, the jury found the hospital guilty of negligence and awarded my client $3,200,000 in damages for the pain, suffering, disability and disfigurement. If the case had gone to trial under the legislation signed by the Illinois governor, my client's non-economic damages would have been reduced to $1,000,000. Fortunately, the new law did not apply to medical malpractice that was discovered before the law was signed.

Today, Judge Joan Larsen of the Circuit Court of Cook County, Illinois, ruled that the caps on medical malpractice damages violate the Illinois Constitution. See her well-reasoned decision here. Following Illinois Supreme Court precedent holding prior attempts at "tort reform" in Illinois to be unconstitutional, Judge Larsen held that any cap on medical malpractice damages improperly invades the constitutional right of a plaintiff to a trial by jury, improperly invades the province of the jury to award damages based on the evidence, and unduly encroaches upon the right of the judiciary to decide whether a jury's damage award is excessive.

I applaud Judge Larsen's decision. The ruling protects the right of a victim of malpractice to a trial by jury--with the jury to decide the amount of any award of compensation based on the evidence. Judge Larsen's decision represents the principle that the Illinois constitution does not allow those who have been most seriously injured as a result of medical malpractice to have their rights taken away in order to increase the profits of insurance companies.

The record profits of hospitals and insurance companies show that they are taking advantage of Illinois doctors and patients. The real solution to the problem of rising medical malpractice premiums is meaningful insurance reform and regulation of the insurance companies.

My firm will continue to work to protect the rights of victims of medical negligence to full and fair compensation.

Bookmark: Bookmark Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at del.icio.us Digg Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at Digg.com Bookmark Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at Spurl.net Bookmark Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at Simpy.com Bookmark Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at NewsVine Blink this Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at blinklist.com Bookmark Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at Furl.net Bookmark Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at reddit.com Fark Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at Fark.com Bookmark Illinois%20Court%20Holds%20Caps%20on%20Medical%20Malpractice%20Damages%20Unconstitutional at Yahoo! MyWeb