Illinois Hospital Association

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June 9, 2005

The Honorable Rod R. Blagojevich
Governor of the State of Illinois
207 Statehouse
Springfield, IL 62706

Dear Governor Blagojevich,

The Illinois Hospital Association respectfully asks you to sign SB 475.

SB 475 is a comprehensive solution to a complicated problem: the medical liability crisis. Throughout the last two legislative sessions, many theories, assertions and studies have been offered suggesting that the high and unsustainable cost of medical liability coverage in Illinois is caused by weak insurance and physician regulation and an out-of-control judicial system. SB 475 contains reforms in each of these areas. SB 475 is much more than a bill containing a range for awarding non-economic damages. It is the product of extensive legislative review and debate. It is a wide-ranging and well-considered approach to improving access to health care in Illinois.

In the nearly 30 other states – including many of Illinois’ neighbors – that have enacted caps on non-economic damages, injured patients continue to collect all economic damages as well as fair and reasonable non-economic damages, while access to health care has been improved in those states because doctors are staying in practice.

SB 475 is constitutional. The range for awarding non-economic damages in medical liability cases under SB 475 is unlike any cap that the Illinois Supreme Court has ever considered. It differs in the following ways:

  1. The range for awarding non-economic damages against hospitals goes up to $1 Million;
  2. A separate limit on non-economic damages applies to each defendant in the case so, for example, if three independent physicians and a hospital are liable for medical negligence, the plaintiff may recover up to $2.5 Million in non-economic damages;
  3. It protects plaintiffs who earn little or no wages by providing them with recovery of the average weekly wage as determined by the Illinois Workers’ Compensation Commission;
  4. The certainty of the range will likely shorten the time plaintiffs must wait for recovery;
  5. It will reduce overall costs to the administration of justice in Illinois by resolving medical liability cases more expeditiously;
  6. It applies only to medical liability cases in order to address the well-established medical malpractice crisis in Illinois; and
  7. It reduces the cost of liability coverage, which will help alleviate the medical access crisis growing throughout Illinois.

Moreover, the Illinois Supreme Court’s decision upholding the elimination of punitive damages in medical liability cases supports the constitutionality of setting a range for awarding non-economic damages in SB 475. In the mid-1980s – during a medical liability crisis – the Illinois General Assembly eliminated punitive damages in medical malpractice cases in Bernier v. Burris (1986). The Illinois Supreme Court upheld that law for the following reasons:

  1. The legislature found that there was a medical liability crisis affecting access to health care by the public; and
  2. The legislature applied its solution only to medical liability cases.

The range for awarding non-economic damages in SB 475 falls squarely within this constitutional test for limiting a plaintiff’s recovery in a medical liability case.

Bernier establishes that the legislature has the authority to limit (and even eliminate) damages in medical liability cases in order to address a public health crisis caused by the medical liability system.

The universal support and passage of P.A. 93-848 last spring also shows that the General Assembly has great constitutional latitude in deciding what sort of tort cases are litigated in Illinois. P.A. 93-848, known as the "Illinois Commonsense Consumption Act," outlawed all civil actions against restaurants for injury resulting from weight gain. This law did not just cap damages in so-called "obesity lawsuits" against McDonald’s. It outlawed suing restaurants for causing the obesity epidemic. If the Illinois constitution gives lawmakers the ability to ban all such claims, it certainly allows them to adopt a reasonable cap on non-economic damages in medical liability cases.

The comprehensive and complex combination of reforms in SB 475 is designed to improve health care access in Illinois and should be upheld as constitutional. The Illinois constitution and Illinois Supreme Court decisions do not foreclose all avenues of capping non-economic damages if they are properly and carefully tailored to address our growing health care access crisis in Illinois, as they are in SB 475.

We all pay for the right to let one plaintiff recover an unlimited amount of damages in a single case. The price of that right is loss of access to care. Ironically, as the right to sue without limits continues to erode access, the right to sue will become meaningless. No reasonable person would give up access to needed health care in exchange for unlimited recovery of non-economic damages. The need to preserve hospital and physician access outweighs the need to preserve an unlimited right to sue for non-economic damages. A reasonable range for awarding such damages is the correct way to strike the balance between these competing concerns.

Therefore, the Illinois Hospital Association, on behalf of its 200 member hospitals and health systems, asks that you sign SB 475 into law.

Sincerely,

Kenneth C. Robbins
President
Illinois Hospital Association

cc: Mr. Joseph Handley