The State-Journal Register - Tuesday March 11, 2008

Dr. Rodney Osborn in his March 3 op-ed piece, "Illinois medical liability reform in the hands of the Supreme Court," continues to practice the politics of fear in a brazen attempt to pressure the Illinois Supreme Court to ignore the Illinois Constitution and clear Illinois Supreme Court precedents.

Dr. Osborn suggests that the court will be making "important health-care decisions" rather than doctors. The truth is that the Supreme Court will be making a legal decision based upon the Constitution and the rights it ensures for all of the citizens of Illinois. That determination is the job of the justices of the court, not doctors, insurance companies or groups whose role is to push propaganda.

In 2005, the Illinois State Medical Society (ISMS) and its insurer, the Illinois State Medical Insurance Exchange (ISMIE), the state's largest medical malpractice insurance company, engineered the passage of a law that sets an arbitrary, unfair, one-size-fits-all cap on the compensation to victims of medical malpractice.

This type of law is not new to Illinois. ISMS and ISMIE are well aware that in 1976 and 1997 the Illinois Supreme Court ruled such caps unconstitutional. They knew they were asking the legislature to pass a law that had twice before been struck down and now they attack a fair and honorable judge, Diane Larsen, who simply followed those precedents and held caps unconstitutional for a third time.

Dr. Osborn talks about the economy, but he failed to mention that the profits of ISMIE are skyrocketing. ISMIE's profits have more than doubled every year since 2004, from $11.7 million to $23.5 million to $50.2 million. Top executives share in these substantial profits. ISMIE's CEO was paid more than $1 million in 2006 with three other executives earning more than $700,000. And all this without the intended effects of the cap on damages having yet been realized.

Since 2003 ISMIE has collected hundred of millions of dollars more in premiums than it has paid out for medical malpractice claims. According to its statement filed with the state of Illinois' Division of Insurance, ISMIE collected $154 million in excess premiums in 2006 alone.

One thing should be clear: Our Constitution does not allow those who have been most seriously injured as a result of medical negligence to have their rights taken away in order to give bonuses to insurance companies.

There are appropriate ways to address the underlying issues that prompted passage of this law. The record profits of insurance companies provide clear evidence that their arbitrary and excessive insurance premiums are taking advantage of Illinois doctors and patients. The real solution to the problem of excessive medical malpractice premiums is meaningful insurance reform.

Ultimately, the Illinois Constitution exists to protect the rights of all the citizens of Illinois against attacks by powerful special interests.

The case before the Supreme Court is not just about doctors and hospitals. It is about Abigaile LeBron, a young child who suffers brain damage as the result of medical negligence. This case - like all cases in which someone has been the victim of medical negligence - is a tragedy. To the best of its ability, our legal system must provide justice for this innocent person and hold the responsible parties accountable.

Bruce Kohen is president of the Illinois Trial Lawyers Association.