Health Law

ILLINOIS SUPREME COURT CLOBBERS (TORT REFORM) CAPS.

By Greg Piche'

    Bucking a trend in other states, the Illinois Supreme Court held this week that state liability caps imposed on non-economic damages in medical malpractice cases violated the Illinois constitution?s separation of powers clause.  It found that the legislatively imposed caps was too bold an intrusion on the powers of the judicial  branch. A number of states have already passed similar statutes that have been upheld by the highest courts in those states. See Garhart v. Columbia/Health One, LLC, 95 P 3d 571, 581-82 (Colo. 2004); Judd v. Drezga, 103 P 3rd 135 (UT 2004) and Kirkland v. Blaine County Medical Center, 49 P 3rd 115, 121-22 (ID 2000).

    The Illinois court chose to reject the precedents in other states.  ?That ?everybody is doing it? is hardly a litmus test for the constitutionality of a statute,? said Chief Judge Thomas Fitzgerald, who wrote the majority opinion in the case, Abigaile Lebron, a minor, v. Gottlieb Medical Center,  __Ill.___( (Feb. 4, 2010). Miss Labron, a seven year old young lady suffered substantial brain injury at her birth by Caesarian Section. According to her complaint she is afflicted with severe brain injury, cerebral palsy, cognition impairment and must be fed by a gastronomy tube. Along with the hospital, one of the defendants is her mother?s physician, Dr. Levi D?Acona, M.D.  He is represented in the case by former U.S. Solicitor General, Theodore Olsen, the prevailing attorney in Bush v. Gore, 531 U.S. 98 (2000).

    The Illinois caps are relatively generous as these things go, limiting non-economic damages to $1 million dollars for hospitals and to $500 thousand dollars for physicians. Miss Labron?s malpractice case was likely chosen as a platform to challenge the Illinois caps because of her significant ?big casino? non-economic damages over her lifetime. Her case underscores the differential in potential recovery for poor people with low economic damages, but hight non-economic damages and the challengers allegation of a lack of justification for the discriminatory treatment under the law.

    One of the dissents filed in the case strongly criticizes the majority for failing to be attuned to the current health care cost control concerns and efforts of the Obama Administration and the steep rise in federal health care costs in 2009 to $134 Billion dollars. The Chief Judge responded with the judicial equivalent of a ?slapdown.?

    ?Although we do not expect that the members of this court will always agree as to what the law is  or how to apply the law in a given case, we do expect that  our disagreements will focus on the legal issues, providing a level of discourse appropriate to the state?s highest court. The emotional and political rhetoric that peppers that peppers the dissent ill suits this dispute.?

    He is perhaps suggesting that the political underpinnings of a decision be delivered by indirection and innuendo, perhaps like in Bush v. Gore, supra.

Full post as published by Healthcare Law Blog on February 06, 2010 (boomark / email).