Vested Interest - May 2005 Issue

The President’s Thoughts

Illinois legislators on both sides of the aisle in Springfield quietly agree with the testimony of Professor Hyman M.D., J.D. of the University of Illinois and the study he authored along with professors from Columbia University and the University of Texas indicating that caps on jury awards will not reduce medical malpractice premiums. The study concludes that spikes in premiums are caused by forces outside of the jury system. While payouts for medical malpractice have been flat, premiums have risen independently of the tort system. Professor Hyman cautioned the legislature to make the correct diagnosis before prescribing a cure.

Insurance industry lobbyists in Illinois publicly acknowledge that insurers will not agree to roll back premiums in exchange for the harsh laws they seek. After the enactment of onerous caps in Texas, one leading medical malpractice insurance executive commented on proposed increases in premiums of 19% by stating that malpractice reform would only affect rates by 1%. Lastly, without legal reform there was no increase in doctors’ medical malpractice insurance rates from ISMIE Mutual in 2005 while ISMIE Mutual enjoyed recovering financial markets and record underwriting gains of $272 million.

Many groups in Illinois concerned with the integrity of the courts and the constitutional rights of individuals have opposed the elimination of citizens’ rights. The AFL-CIO, NAACP, ISBA, SEIU, the Teachers Union, senior groups, consumer groups and others have joined ITLA in opposing caps. Many have noted that the legislation proposing caps is particularly harmful to women, minorities and the poor.

Despite the above, there is an increased push by legislators to enact caps. Why? The answer is that legislators are concerned with public perception. Unlike trial lawyers, legislators do not work in the courtroom where witnesses are subpoenaed, documents are produced by court order, and testimony is cross-examined. Instead, they are subject to political advertising, which is not so easily questioned or challenged. The political advertising regarding medical malpractice has been particularly overwhelming in southern Illinois. As a result, the perception is that the legal system is causing a healthcare crisis.

The perception is far from the reality. First, the tort system is not causing malpractice rates to spike as I have discussed above. Secondly, malpractice rates are not the cause of the feelings of insecurity regarding medical care, which the public possesses.

The reality is that there are almost 30% more doctors in Illinois than there were ten years ago. The well-to-do have unlimited options for needless, high priced, cosmetic surgeries, while medical care is more limited for everyone else. Fewer employers offer healthcare and employees bear a greater portion of the cost than before. In addition, new managed healthcare plans offer fewer options to insured persons.

Unfortunately, the fear of losing healthcare has been manipulated. The Chamber of Commerce, funded by the largest business groups in the United States, has capitalized on this fear to limit the rights of patients in Illinois and elsewhere. They blame the system of justice for the nation’s healthcare woes. Though medical malpractice is not the normal realm for the Chamber, they do have something to gain by their advertising campaign. By weakening the civil justice system their members may be less accountable for their own misdeeds. They have influenced public opinion and legislators to undermine the judiciary by demonizing the lawyers, juries and judges who are integral parts of it.

Thankfully, we have a Constitution in Illinois.

Kevin Conway, President
Illinois Trial Lawyers Association