Vested Interest - December 2006 Issue

The President's Thoughts

"The Road Ahead..."

As the year 2006 fades from the calendar pages, I look forward, with great anticipation, to the upcoming year. As most of you know, ITLA members Jeffrey M. Goldberg and Todd A. Smith have joined together to file a lawsuit in the Circuit Court of Cook County, seeking damages for Abigaile LeBron, born October 31, 2005. The lawsuit alleges Abigaile was the victim of gross medical negligence. The defendants are Gottlieb Memorial Hospital in Melrose Park, Illinois and Dr. Roberto Levi-D’Ancona. Today, Abigaile suffers from extensive brain damage resulting from a lack of oxygen during her delivery. She is fed through a tube. She cannot crawl or do the things a healthy one-year-old can do.

This lawsuit also includes a declaratory judgment count that challenges the oppressive "caps" placed on victims of medical negligence (PA 94-677). Robert Peck, President of the Center for Constitutional Litigation, in Washington, D.C., has also joined plaintiff’s counsel in this effort. Mr. Peck is renowned for his advocacy in challenging laws that impede access to the civil justice system.

Our friends in organized labor hailed this effort. Margaret Blackshere, President of the Illinois AFL-CIO, issued a statement stating: "Challenging the 2005 Illinois medical malpractice caps law is the prudent, righteous course of action. We applaud all efforts to protect working-class men and women against corporate interests who seek to trample their constitutional rights." (Why is it that organized labor always seems to get it right?)

Despite the serious neurological deficits from which Abigaile suffers, the Illinois State Medical Society claims that "Illinois trial lawyers have struck again, and predictably so." ISMS President, Peter Eupierre, M.D., whose office is also in Melrose Park, denounced this litigation, claiming it was evidence of trial lawyers’ "desperate attempts to undermine Illinois’ new malpractice reforms."

"New malpractice reforms?" There is nothing new about the Medical Society’s latest efforts to victimize the victims. Does this sound familiar to you?

[B]riefs have been filed by Amici curiae Illinois State Medical Society and its president, and by an Amicus calling itself the Protective Medical Association of Illinois, but not otherwise described or identified. In a section of their brief, headed ‘Interest of the Amici Curiae: The Health Care Crisis,’ Amici Illinois State Medical Society and its president describe the ‘rapid and disproportionate rise in malpractice claims and high dollar awards and settlements’ and argue that ‘While concededly, it is an initial move and hardly the last, nor should it be, Public Act 79-960 represents a reasonable response to a problem confronting the vast majority of the people of the State of Illinois.’

The foregoing is a passage from the Illinois Supreme Court opinion in Wright v. Central Du Page Hospital Association, 347 N.E.2d 736, decided May 14, 1976. As noted in Wright, Public Act 79-960, passed by the legislature in 1975, placed "a maximum recovery ‘on account of injuries by reason of medical, hospital or other healing art malpractice’ [at] $500,000.’" In Wright, the medical defendants argued "that such unequal treatment [was] necessary to deal with what they describe as the ‘medical malpractice crisis.’" The Wright defendants also argued that "that the loss of recovery potential to some malpractice victims is offset by ‘lower insurance premiums and lower medical care costs for all recipients of medical care.’"

Despite the cries from the Illinois Medical Society, the Supreme Court decision to toss the special legislation was based upon the language of the 1970 Illinois Constitution which prohibits "special legislation." As the Wright Court announced: "We are of the opinion that limiting recovery only in medical malpractice actions to $500,000 is arbitrary and constitutes a special law in violation of section 13 of article IV of the 1970 Constitution, and we so hold."

The reality is that there is nothing "new" about this feigned crisis. The truth, however, is not a topic which the columnists and paid lobbyists like to acknowledge. As evidenced by the recent Vanderbilt Law Review article, published May, 2006, doctors are not "fleeing" from Illinois. The authors of the Vanderbilt article compared the number of doctors leaving Madison and St. Clair counties for states with a "less abusive litigation climate." They relied on data from the American Medical Association and concluded that there was "absolutely no support for the claims that the net number of doctors in Illinois has decreased. Moreover, the authors actually concluded that "[t]he number of practicing physicians has actually increased by about 4 percent."

Consider, also, the reality that medical malpractice insurance rates are dropping. A new insurance company, Doctors Direct, Inc., will soon offer coverage at rates less than ISMIE Mutual Insurance Company. Medical Protective Company and General Star Insurance Company, both owned by Warren Buffet’s Berkshire Hathaway, Inc., plan to expand in Illinois and have promised reduced rates to physicians. All of these opportunities spell "good news" for Illinois physicians who no longer have to be tethered to ISMIE.

If we allow our friends to believe the Medical Society, Illinois has been in a crisis for over 30 years now! We cannot allow the pronouncements by our Supreme court in Wright v. Central Du Page Hospital Association and Best v. Taylor Machine Works, 689 N.E.2d 1057, rejecting legislative "caps" on victims of medical negligence, to be forgotten!!

Our task is to make sure the citizens of Illinois recognize truth from fiction. This means we will have to continue our commitment to the grassroots organization, which worked so well to keep voters fully informed. As we recently witnessed, the results were astounding!

In addition to deflecting half-truths and advocating for our clients, the trial lawyers in our Association must remain committed to fighting back legislative proposals that deny access to the civil justice system. I also intend to make sure ITLA is pro-active in its efforts to improve the quality of life for victims and those who survive the loss of a loved one.

We have important work to do. For now, however, take a moment to enjoy this special time of year. Hug your loved ones, and be thankful for the wealth of freedoms we enjoy, every day, in this wonderful country.

Happy Holidays to all!!

Judy L. Cates, President
Illinois Trial Lawyers Association