Vested Interest - July 2003 Issue

The President’s Thoughts

In the February 2003 edition of Vested Interest, past President, Bob Bingle outlined our legislative approach during the upcoming Spring session. He encouraged our Executive Committee to be both creative and bold, while at the same time not being avaricious. Bob was hopeful that when we looked back on the legislative session, our Association would see that we were neither too timid nor too aggressive. I am happy to report that both those goals were met. In fact, it is easily argued that the Spring 2003 legislative session was the most successful in the history of the Illinois Trial Lawyers Association.

For many years our Organization has been set up to block legislative efforts seeking to curtail our clients’ rights. With a Democratically controlled House, Senate, and executive branch, the prospect for meaningful and positive change for victims’ rights became more than just a dream. Through the hard work and dedication of legislative co-chairman, Bruce Kohen, the Legislative Committee, the Executive Committee, and Jim Collins, the following pieces of legislation have passed both houses and have either been signed into law by Governor Blagojevich or are sitting on his desk where our hope and expectation is that they will soon become law.

1. Public Acts 93-10 and 93-12 together amend 735 ILCS 5/2-1117 to specifically exclude the plaintiff’s employer from the calculation of fault under joint and several liability. These laws were the result of the Illinois Supreme Court’s recent decision in Unzicker v. Kraft Foods. These public acts have immediate effective dates and are now law.
2. Also with an effective date of June 4, 2003 is Public Act 93-11. This law amends the Governmental Tort Immunity Act (745 ILCS 10/8-101) to provide for a two year statute of limitations in medical malpractice actions against public facilities and employees. Previously, there was a one-year statute of limitations on such actions.
3. Public Act 93-51 amends certain acts in relation to liens. In pertinent part, it limits the total amount of all liens under the Act to 40 percent of the verdict, judgment, award, or settlement. Previously, pursuant to the Supreme Court decision in Burrell, all lienholders were entitled to no less than one-third of the verdict, judgment, or settlement regardless of the number of lienholders. This would result in an injured plaintiff receiving nothing on a settlement or judgment if the insurance proceeds were limited and the liens many. The amendment of the lien act also limits attorney’s fees to 30 percent in those circumstances where the total medical liens meet or exceed 40 percent of the sum paid or due to the injured person. Attorney’s fees are not limited in cases of appeal. This was a compromise that our Association felt was reasonable in order to obtain the ultimate goal of guaranteeing that the injured victim would receive some monies out of a settlement or verdict in which their liens would undoubtedly far exceed the available insurance proceeds.
4. Senate Bill 1414 amends the Hospital Licensing Act to prohibit ex-parte communications between a hospital’s defense lawyer and members of the hospital’s medical staff who are not actual or alleged agents, once litigation has been commenced. Senate Bill 1414 sits on Governor Blagojevich’s desk, and we see no reason why it will not be signed by him within the appropriate and required time frame.

This new legislation will be the topic of much discussion at ITLA’s September 2003 Legislative Update and Review Seminar. Please plan on attending the seminar to learn more about these public acts and how they will affect your practice. For copies of these public acts and senate bills, please call the ITLA office at (800) 252-8501 or go to the ITLA website at www.iltla.com.

I am encouraged by the passage of these pieces of legislation, several of which have, in the past, had promising starts in the Illinois House only to be killed in the Senate. However, I and the Executive Committee are resigned to the simple fact that future legislative endeavors will be far from a rubber stamp. If we learned one thing in Springfield over the last six months, it’s that we will need to work very hard to keep the legislative momentum moving forward. It has been and will continue to be our goal to seek legislation that benefits all citizens of the State of Illinois. But make no mistake about it, enemies of our clients’ rights prowl the halls of the State Capitol working diligently to thwart our efforts at reasonable legislation. Big medicine, big business, and the insurance industry have plenty of money to hire lobbyists who are not paid to sit around and drink coffee. If we want continued success in Springfield, it will require our Legislative and Executive Committees to work together and put forth a legislative agenda that continues to be bold, yet fair. It will also require greater communication with legislators well in advance of the bills being drafted. The Legislative Committee will be a focus of my upcoming administration, and I encourage anyone in our Association who wishes to be an integral part of this committee to volunteer their services. Those who want to work and serve will be most welcome.

Michael P. Schostok, President
Illinois Trial Lawyers Association