Vested Interest - September 2005 Issue

The President’s Thoughts

Things could be a lot worse as they are for countless families devastated by Hurricane Katrina. Please help them as much as you can. Some suggestions are on our website.

The year’s legislative and executive battle on medical malpractice ended on August 25 when PA 94-677 was signed into law.

It is clear that insurance premiums have no relationship to caps on damages and other civil justice deforms in this legislation. Home and auto insurer State Farm cut its premiums twice already this year. But malpractice premiums will not be cut. If caps really lead to premium cuts, and if ISMIE is so sure that the cap is constitutional, you would think it would have announced premium cuts already. Instead, ISMIE announced rate increases in June. ISMIE even refuses to promise cuts in the future.

But perhaps Illinois doctors and the public at large will no longer be indefinitely held hostage by ISMIE. The new insurance regulations in PA 94-677 requiring full disclosure, public hearings and rate scrutiny could result in immediate cuts. The Division of Insurance just announced a public hearing to be held on September 27 regarding ISMIE’s premium increases. Hopefully this is the beginning of a long-overdue process to roll back these unjustified, excessive malpractice premiums.

How do we prevent medical malpractice? Obviously the medical profession’s so-called self-policing has not been effective. We need strong patient safety laws. By implementing mandates for patient safety, we will no longer rely on the fox guarding the hen house.

Parts of PA 94-677 are clearly abhorrent. Eventually, a constitutional challenge will reach the Supreme Court. The issues will be framed in the context of two clear-cut precedents finding caps on compensatory damages to be unconstitutional. In the meanwhile, don’t be surprised to see proponents of caps on damages continue to suggest that it is the "make-up" of the court that matters, not the constitution and Supreme Court precedents.

I suggest that we react to PA 94-677 the same way we react to adverse events in our practice: losing a ruling, a trial or an appeal. We must continue to fight individually and as an organization. The insurance industry, the U.S. ("multinational corporation") Chamber of Commerce, and the Civil Justice ("take away the rights of those we harm") League would like nothing better than to elect their friends so that they can regain complete control of Springfield for another chance to once and for all demolish the entire civil justice system, as they did in 1995.

PA 94-677 was born out of the lie that because juries uphold their sworn duty under the constitution, malpractice premiums are up and healthcare access is down. Starting within hours after PA 94-677 was signed, we have seen and heard ads sponsored by the Chamber claiming that Illinois has a bad business "climate" and calling for even more tort deform. The ads also told the lie that Illinois has recently lost hundreds of thousands of manufacturing jobs due to lawsuits. (I thought the Chamber was supposed to promote business in Illinois, not scare it away with dishonest ads.....) Of course the real threat facing working families is the well-financed all-out assault on workers’ rights including globalization, over-seas outsourcing, anti-union activities and corporate bankruptcies designed to break promises to provide pensions and health insurance. The Chamber's lies about the Illinois business "climate" are yet another chapter in the cynical distortion of reality designed to take way the rights of those we represent. We must keep our focus on this real and present danger and do all we can to prevent a repeat of 1995 or even worse.

We will not succeed without a well-conceived plan. Some of you have made suggestions, all of which have been seriously considered. The plan will include some tried and true strategies of the past but will also go much further.

And don’t ever forget that generals can’t win without the armies. The contributions of every member’s blood, sweat (and yes, dollars) will dictate the outcome of this fight. You will be called upon soon. Sitting on our hands, wallets or both will be unacceptable.

What is "tort reform"? It is government taking the slingshot away from David and giving it to Goliath.

Not on our watch!

Keith A. Hebeisen, President
Illinois Trial Lawyers Association