As discussed in a previous post, Illinois personal injury lawyers nervously await a ruling by the Illinois Supreme Court, which will decide the fate of the Malpractice Reform Act of 2005 (“Act”).  The Act caps jury awards for pain and suffering and other non-liquidated damages in medical malpractice lawsuits at $500,000 against physicians and $1 million against hospitals.

In November 2008, the Illinois Supreme Court heard oral arguments in the case Lebron v. Gottlieb Memorial Hospital, a medical malpractice case brought by the mother of a 3-year-old child born with cerebral palsy and other severe brain damage.  As a result of medical negligence, the child will have to be fed through a tube for the rest of her life and may never live independently.  Under the damage caps required by Act, the 3-year-old child with a permanent catastrophic brain injury is limited to the same monetary damages as someone with a far less significant injury.

In Lebron, a circuit court held that the arbitrary cap on non-liquidated damages in the Medical Malpractice Reform Act of 2005 was unconstitutional, and relied on an earlier Illinois Supreme Court decision in 1997, which held that caps on non-economic (i.e. “non-liquidated”) damages infringe on the jury’s role in determining appropriate compensation.  In fact, the Illinios Supreme Court has twice before struck down this type of “one size fits all” cap on non-liquidated damages as a violation of the Illinois Constitution.

Unfortunately, even if the Illinois Supreme Court decides to invalidate this Act as unconstitutional, it will eliminate other positive insurance reforms contained in the Act.  For instance, the Act forces insurancce companies to provide greater transparency on rate-setting and payouts, which results in greater compensation in the insurance industry, and lower insurance premiums for doctors.  However, the Act contains an” inseverability clause,” meaning that if one portion of the law is struck down as unconstitutional, such as the arbitrary cap on non-liquidated damages,  the  other provisions of the Act, such as the state regulators’ ability to collect and publish actuarial data used by medical malpractice insurers in Illinois, will likewise be struck down.

Nevertheless, the unfairness and negative impact of the Medical Malpractice Reform Act of 2005 felt by patients, such as the 3-year-old child in Lebron, requires the Illinois Supreme Court to find the Act unconstitutional, as it has done in the past.