Fight for Malpractice Caps May Be Futile

Published February 18, 2010

The Illinois State Medical Society’s medical malpractice insurance affiliate vowed to continue to fight for caps on noneconomic damages in medical malpractice cases. This came after the Illinois Supreme Court ruled last week such caps are unconstitutional. ISMS and its affiliate, ISMIE Mutual Insurance Co., had strongly supported this legislation.

Good luck to them in this continuing fight—they’re going to need it.

Caps in many other states have been effective in controlling skyrocketing medical malpractice premiums. As doctors in Illinois began fleeing the state to practice where premiums are lower, particularly doctors treating high-risk pregnancies and head injuries, the Illinois legislature passed caps in 2005. These caps limited noneconomic damages such as pain and suffering to $500,000 in cases against doctors and to $1 million in cases against hospitals.

The Illinois Supreme Court had considered the constitutionality of noneconomic damages caps in 1976 and 1997. The 1976 case involved a state law capping all medical malpractice damages—whether economic or noneconomic—at $500,000. The Court rightly invalidated this statute; out-of-pocket economic damages should never be capped.

The 1997 case involved a $500,000 cap only on noneconomic damages in all personal injury cases. The Court invalidated that statute as well, but it left a kernel of hope.

The 1997 ruling was based on two grounds. First, the Court ruled a statute capping damages violates separation of powers by invading the judicial power to limit damages.

Second, the Court ruled the caps amounted to special legislation, violating an Illinois constitutional provision banning legislation favoring one class of persons over another. Severely injured persons with large pain and suffering losses were penalized while less seriously injured persons were fully compensated. However, the Court stated special legislation could be constitutional if there was a “rational basis” for it.

The earlier two statutes had justified caps as a way to control litigation costs, but in 2005 the legislature emphasized the caps are necessary to protect the health of Illinois residents by ensuring the availability of medical care. The Court, however, did not find this a rational basis for the law.

The Court’s opinion particularly emphasized that any limitation on damages was an invasion of its judicial powers. “[W]e necessarily consider … the legislature’s goal in enacting the statute—responding to a health-care crisis. Our separation of powers analysis, however, does not stop there. The crux of our analysis is whether the statute unduly infringes upon the inherent power of the judiciary.” The Court found such an infringement.

It’s difficult to imagine how the Court as presently constituted will ever find caps legislation passes constitutional muster.

So what should those favoring caps do? Continue educating the public—the jury pool—about the perils of abusive verdicts to their health.

No one believes victims of medical malpractice should go uncompensated for their actual current and future damages. These can be accurately measured at trial. But there is no calculus for noneconomic damages. They are awarded in amounts decided by the jury and can be exorbitant.  They are almost never reduced by judges, despite the jealousy with which this right of reduction is guarded by the judiciary.

Jurors are on the front lines of defense against abusive verdicts. Educating them is the best way to stop them.

Maureen Martin ([email protected]) is senior fellow for legal affairs at The Heartland Institute and editor of Heartland’s Lawsuit Abuse Fortnightly, available at