State Capitol Q&A: Malpractice issue could be headed for another fight

Ryan Keith

It's been nearly five years since state government dealt with a major legal crisis. The silence could soon be ending.

The state Supreme Court is expected to rule soon on the legality of the caps on damage awards in medical malpractice cases that lawmakers installed in 2005 to quell an uprising of doctors, who were claiming they were being financially ruined.

The outcome of the case could re-spark another fight between very powerful interests over a complex issue: how much government involvement in legal liability cases is too much?

This week's State Capitol Q&A takes a closer look at the issue and what's at stake.

Q. What's the backstory on this legal dispute?

A. Before impeachment and budget chaos, "med mal" was one of the legislature's biggest issues this decade.

It brought to a head a long-simmering battle between trial lawyers and businesses over lawsuit regulations, from what parties can file lawsuits to how much money victims should receive.

In med mal, doctors teamed up with insurers and business interests to complain soaring malpractice insurance rates were the product of frivolous lawsuits by greedy lawyers. Those lawyers shot back that money-hungry insurers were bilking doctors and doctors were maiming patients.

Doctors threatened to leave the state and put intense pressure on lawmakers to do something. Democratic leaders reluctantly agreed to cap the amount of money malpractice victims could get for pain and suffering – knowing the issue would go to court in the coming years.

Q. What's the latest on the case?

A. A lower court has deemed these award caps as unconstitutional, so it's now up to the Supreme Court. The highest court has thrown out similar caps in the past, but supporters argue these are different times and these caps don't have the same structure problems.

If caps are upheld, look for trial lawyers and victims they represent to cry unfairness and possibly pursue an appeal. And if the caps are tossed again, there could be another crisis flareup from doctors and insurers.

Q. Where does this legal reform issue stand going into 2010?

A. Advocates for lawsuit reform say the issue is bigger than just malpractice caps.

They argue that too often, trial lawyers exploit the judicial system and get large class-action awards from sympathetic judges and juries in Illinois counties such as Cook and Madison.

Those counties again made the American Tort Reform Association's recent "Judicial Hellholes" list, which gives dubious honors to the places the group says are the most unfair judicial systems nationally.

Travis Akin, executive director of Illinois Lawsuit Abuse Watch, said recent improvements in judicial fairness, particularly in Madison County, are threatened.

"The combination of political corruption, high taxes and an unfair legal climate has created the perfect storm for job loss," Akin said. "Companies look to create jobs in places where the legal system is fair."

But Peter Flowers, president of the Illinois Trial Lawyers Association, says such reports are businesses trying to avoid accountability for serious mistakes and pad their profits. He says safeguards in place already work well to reduce unmerited lawsuits.

"The legal system is working perfectly. There aren't any problems," Flowers said.

At the Capitol, lawmakers have been reluctant to take much action recently. Efforts by reform advocates to restrict lawsuit filing locations and expert witness qualifications have so far stalled in the legislature.

Sen. A.J. Wilhelmi, a Joliet Democrat who heads the Senate Judiciary Committee, said lawmakers will review recommendations for improving the legal system in the coming year, including what might come from the malpractice ruling.

But he doesn't see any major developments, with lawmakers instead focused on major state budget problems.

"There's nothing imminent on that issue," Wilhelmi said.

Ryan Keith can be reached at (217) 788-1518