Illinois Supreme Court: Back to the Drawing Board

The Illinois Supreme Court ruled in early February that caps on noneconomic damages in medical malpractice cases are unconstitutional under the Illinois Constitution.

Extravagant jury awards of damages for noneconomic, intangible losses such as pain and suffering and loss of consortium (usually considered as the benefits of sex) are widely and properly blamed for untenable increases in malpractice insurance premiums paid by physicians.

Physicians, particularly those who specialize in high-risk pregnancies and head injuries, have been fleeing Illinois to states where malpractice premiums are lower. This deprives Illinois residents of health care, jeopardizing their well-being and even their survival. Caps in more than 30 states have been found effective in ensuring medical malpractice premiums remain stable or decline and preventing physician flight. The Illinois Supreme Court did not find this argument persuasive.

The grounds the court relied on--that any legislative limits on noneconomic damages invade and usurp the power of the judiciary to reduce overly extravagant damages awarded by juries--likely dooms any future legislative attempts to cap damages. So it’s back to the drawing board for advocates of legal reform in Illinois.

One promising avenue is jury education. If the root of the problem is that juries in malpractice cases are too quick to convict and then too generous in the awards they approve, educating jurors about the proper grounds for conviction and correct standards for awards could do some real good.

Jury deliberations are secret, but we sometimes get glimpses of what happens inside the jury room. Back in 1997, Joseph Bast, president and CEO of The Heartland Institute, served as foreman of a jury considering a medical malpractice case. His write-up of the experience, “Joe’s Excellent Adventure: Jury Duty,” revealed problems that are probably widespread in juries in Illinois and around the country.

According to Bast, he and his fellow jurors were confused by the legalese used in the case. They did not comprehend essential legal concepts such as negligence and weight of evidence. They were biased in favor of the plaintiff until they were required to deliberate each element of the case, at which point they turned largely in favor of the defendant. Many of the jurors wanted to give the plaintiff the full amount of her alleged damages even though most of her claims had been rejected.

“Lawyers as a group should invest in public education ... explaining what citizens should expect when they are asked to serve on a jury,” concludes Bast. “Basic information about how long we might have to deliberate, how to select a foreman, and the plaintiff’s burden of proof all would have helped my jury immensely.”

Will the legal community step forward and do what is necessary? Will the business community help?

Maureen Martin (mmartin@heartland.org), an attorney, is senior fellow for legal affairs at The Heartland Institute.