Brief Facts: In Bauer v. Memorial Hospital, the plaintiff filed a medical malpractice lawsuit against Memorial Hospital. The plaintiff claimed the physicians and nurses failed to diagnose hypoglycemia in a newborn, which caused severe brain damage. The defense expert testified the child had a shortened life expectancy as a result of the child's brain damage. By introducing evidence of the child's decreased life expectancy, the defense hoped the jury would award at least $1 million less for the cost of his future care. However, this attempt at reducing damages backfired. Rather, based on the defense expert's testimony, the trial court allowed the plaintiff to submit a non-pattern jury instruction that allowed the jury to award damages to the child for "an increased risk of a decreased life expectancy". The jury awarded $7.15 million to the plaintiff, including an award for decreased life expectancy as well as future medical and care-taking costs. On 11/27/07, the 5th District Appellate Court affirmed the award for damages for a reduced life expectancy and noted it was the first Illinois appellate court to consider this issue.
Court's Reasoning: A defendant should be required to pay damages for wrongful conduct that reduces a plaintiff's life expectancy. A defendant should not be allowed to benefit from a reduction in a plaintiff's damages due to a decreased life expectancy when it was the defendant's wrongful conduct that caused the decreased life expectancy.
Bottom Line: A plaintiff can now recover damages for a reduced life expectancy that was caused by the claimed negligence.
Impact of Decision: I believe this ruling will have a significant impact on damages and will shackle the defense in trying to reduce the cost of life care plans by arguing the plaintiff has a reduced life expectancy. In fact, offering expert testimony to suggest a reduced life expectancy will now permit the plaintiff to ask the jury to award damages for the reduced life expectancy.
Thursday, November 29, 2007
Wednesday, November 14, 2007
Tort Reform Declared Unconstitutional...Now What?
What happened?
As most of you know, this morning, Judge Larsen issued a written ruling declaring damage caps unconstitutional. The Tort Reform Act included caps on non-economic damages as well as numerous other provisions (i.e., 2-622 changes, expert qualification changes, insurance regulations, apology provision, etc.). Judge Larsen did not address the plaintiffs' other constitutional challenges to the Tort Reform Act, but rather, declared the entire Act invalid because it had an inseverability provision. Therefore, all of the provisions that were part of Tort Reform are now invalid.
Now what?
The defendants will be able to appeal directly to the Illinois Supreme Court, as opposed to seeking review with the Appellate Court first. It is hard to predict how quickly that will occur, but I suspect it will take about a year.
What are the chances of succeeding on appeal to the Illinois Supreme Court?
Not very good. The Court is currently comprised of three Republicans and four Democrats. Generally speaking, Republicans usually favor tort reform and Democrats are usually against it. There is a strong possibility that one of the Democrats will not partake in the decision due to a potential conflict of interest. If the justices vote along party lines, there will be a 4-3 vote against Tort Reform (affirming Judge Larsen's ruling) or a 4-2 vote, which would likewise affirm Judge Larsen's ruling. It would take a majority vote to reverse Judge Larsen, which is extremely unlikely.
As most of you know, this morning, Judge Larsen issued a written ruling declaring damage caps unconstitutional. The Tort Reform Act included caps on non-economic damages as well as numerous other provisions (i.e., 2-622 changes, expert qualification changes, insurance regulations, apology provision, etc.). Judge Larsen did not address the plaintiffs' other constitutional challenges to the Tort Reform Act, but rather, declared the entire Act invalid because it had an inseverability provision. Therefore, all of the provisions that were part of Tort Reform are now invalid.
Now what?
The defendants will be able to appeal directly to the Illinois Supreme Court, as opposed to seeking review with the Appellate Court first. It is hard to predict how quickly that will occur, but I suspect it will take about a year.
What are the chances of succeeding on appeal to the Illinois Supreme Court?
Not very good. The Court is currently comprised of three Republicans and four Democrats. Generally speaking, Republicans usually favor tort reform and Democrats are usually against it. There is a strong possibility that one of the Democrats will not partake in the decision due to a potential conflict of interest. If the justices vote along party lines, there will be a 4-3 vote against Tort Reform (affirming Judge Larsen's ruling) or a 4-2 vote, which would likewise affirm Judge Larsen's ruling. It would take a majority vote to reverse Judge Larsen, which is extremely unlikely.
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