Click here to view Proposed Amendment
Bottom Line:
The Illinois State Bar Association has proposed a bill that would award plaintiffs prejudgment interest to successful plaintiffs in nearly all Illinois tort cases, including medical malpractice cases. The proposal gives a defendant 120 days to make an offer of settlement after the defendant files an answer to the plaintiff's complaint to avoid paying prejudgment interest. If the plaintiff does not accept the offer within 30 days, and a verdict or settlement is entered against the defendat at a later time, the defendant will have to pay prejudgment interest on that award. If the 120 day period passes and the defendant does not make an offer to settle, the defendant will have to pay prejudgment interest on any settlment or verdict. If interest is assessed against a defendant, it will accrue from the date the lawsuit is filed until the date of the settlement or verdict. For example, if a lawsuit is filed today and the defendant does not make an offer to settle the case within 120 days, then if a settlement or verdict is entered two years from now, a prejudgment interest rate will be added to the amount of the settlement or verdict. The proposal is for the law to take effect on January 1, 2010.
The ISBA is expected to vote on the proposal on December 13, 2008. Not surprisingly, the Illinois Assocation of Defense Trial Counsel is opposing the proposal. Attached is the proposed amendment and the Defense Trial Counsel's objections to it.
Friday, December 12, 2008
Friday, June 20, 2008
New Illinois Supreme Court decision on the Collateral Source Rule
On June 19, 2008, in Wills v. Foster, the Illinois Supreme Court issued an important decision on the Collateral Source Rule.
Collateral Source Rule: Benefits received by the plaintiff from a collateral source (i.e., health-care insurance provider, Medicare/Medicaid, etc.) will not diminish/reduce damages otherwise recoverable from the defendant.
* Please note that the Collateral Source Rule has been modified in some situations by statute; but the Illinois Supreme Court did not address this issue.
Issue ruled on by the Illinois Supreme Court: How does the Collateral Source Rule apply in cases in which the plaintiff's medical bills are paid by Medicaid and/or Medicare at a discounted rate? In other words, can a plaintiff recover as damages the entire amount billed by health-care providers for medical services, or is a plaintiff limited to recovering the discounted amount actually paid for the medical services?
Holding: The plaintiff may recover the amount the health-care providers initially billed for services rendered, regardless of what was actually paid.
Bottom Line:
Illinois now follows the "reasonable-value approach" with respect to what a plaintiff is entitled to recovery as damages for medical bills incurred. The reasonable-value approach allows the plaintiff to recover the "reasonable" value of medical services regardless of whether the patient has private insurance, is covered by a government program (Medicare or Medicaid) or received gratuitous services.
Are paid bills admissible by the defense to show that the billed amount was not reasonable? No. The Collateral Source Rule bars the jury from learning anything about collateral income. Defendants are free to cross examine witnesses that a plaintiff might call to establish reasonableness, and the defense is also free to call its own witnesses to testify that the billed amounts do not reflect the reasonable value of the services. However, defendants may not introduce evidence that the plaintiff's bills were settled for a lesser amount.
This decision is certainly favorable to plaintiffs.
Collateral Source Rule: Benefits received by the plaintiff from a collateral source (i.e., health-care insurance provider, Medicare/Medicaid, etc.) will not diminish/reduce damages otherwise recoverable from the defendant.
* Please note that the Collateral Source Rule has been modified in some situations by statute; but the Illinois Supreme Court did not address this issue.
Issue ruled on by the Illinois Supreme Court: How does the Collateral Source Rule apply in cases in which the plaintiff's medical bills are paid by Medicaid and/or Medicare at a discounted rate? In other words, can a plaintiff recover as damages the entire amount billed by health-care providers for medical services, or is a plaintiff limited to recovering the discounted amount actually paid for the medical services?
Holding: The plaintiff may recover the amount the health-care providers initially billed for services rendered, regardless of what was actually paid.
Bottom Line:
Illinois now follows the "reasonable-value approach" with respect to what a plaintiff is entitled to recovery as damages for medical bills incurred. The reasonable-value approach allows the plaintiff to recover the "reasonable" value of medical services regardless of whether the patient has private insurance, is covered by a government program (Medicare or Medicaid) or received gratuitous services.
Are paid bills admissible by the defense to show that the billed amount was not reasonable? No. The Collateral Source Rule bars the jury from learning anything about collateral income. Defendants are free to cross examine witnesses that a plaintiff might call to establish reasonableness, and the defense is also free to call its own witnesses to testify that the billed amounts do not reflect the reasonable value of the services. However, defendants may not introduce evidence that the plaintiff's bills were settled for a lesser amount.
This decision is certainly favorable to plaintiffs.
New Illinois Supreme Court Decision (on Section 2-622)
In O'Casek v. Children's Home and Aid Society of Illinois (filed on June 19, 2008), the Illinois Supreme Court was asked to decide which version of the 2-622 statute applied to a lawsuit filed in 2002 and refiled in 2004, after the case was voluntarily dismissed. The decision is very complicated and hard to follow. In order to understand the decision and its future application, an understanding of the following (simplified to the extent possible) chronologically is critical.
1) Before 1995, section 2-622 did not require that the 2-622 physician be identified; and, the plaintiff was entitled to a 90-day extension for filing a 2-622 report, regardless of whether the plaintiff had previously voluntarily dismissed the lawsuit.
2) On 03/09/95, Public Act 89-7 amended section 2-622 in two ways: (1) the name of the 2-622 physician was now required; and (2) if the plaintiff voluntarily dismissed the lawsuit, the plaintiff had to file a 2-622 report upon refiling. A 90-day extension upon refiling was prohibited.
3) On 12/18/97, the Illinois Supreme Court, in Best v. Taylor Machine Works, held Public Act 89-7 (which encompassed various Tort Reform provisions including section 2-622 changes) void in its entirety. Therefore, section 2-622 reverted back to the pre-1995 version (see #1 above).
4) On 02/04/98, Public Act 90-579 amended section 2-622 by adding naprapaths to the list of covered health professionals. Notably, Public Act 90-579 did not add naprapaths to the pre-1995 version of section 2-622 (see #1 above). Rather, it added naprapaths to the 1995 version struck down by Best (see #2 above).
In Cargill v. Czelatdko, the appellate court held that Public Act 90-579 resurrected the changes in Public Act 89-7 (see #2 above) which had been struck down by the Illinois Supreme Court's decision in Best. In other words, that the name of the 2-622 physician was required and a 90-day extension was prohibited upon refiling.
5) On 08/25/05, Public Act 94-677 amended section 2-622 in various ways (this was part of the Tort Reform bill that was struck down by Judge Larsen in Cook County and a decision on all of Tort Reform including the 2-622 changes is currently pending in the Illinois Supreme Court).
Illinois Supreme Court's Holding: the plaintiff's medical malpractice lawsuit is governed by the pre-1995 version of section 2-622, as amended with the addition of the naprapath language found in Public Act 90-579. In other words, that the name of the 2-622 physician is not required and a 90-day extension is permitted (see #1 above) upon refiling.
Bottom Line: for causes of action accruing before 08/25/05, the 2-622 physician does not need to be identified and the plaintiff is entitled to a 90-day extension for filing a 2-622 report, regardless of whether the plaintiff had previously voluntarily dismissed the lawsuit. This case overrules Cargill, Crull, and the others that are inconsistent with this opinion.
Unanswered Question: as you know, Tort Reform (Public Act 94-677) amended section 2-622 and the identity of the 2-622 physician, among other things, is required (except in Cook County) for causes of action accruing on or after 08/25/05. The Illinois Supreme Court specifically did not address this issue. The Court is presumably saving that decision for its ultimate decision on all of Tort Reform.
1) Before 1995, section 2-622 did not require that the 2-622 physician be identified; and, the plaintiff was entitled to a 90-day extension for filing a 2-622 report, regardless of whether the plaintiff had previously voluntarily dismissed the lawsuit.
2) On 03/09/95, Public Act 89-7 amended section 2-622 in two ways: (1) the name of the 2-622 physician was now required; and (2) if the plaintiff voluntarily dismissed the lawsuit, the plaintiff had to file a 2-622 report upon refiling. A 90-day extension upon refiling was prohibited.
3) On 12/18/97, the Illinois Supreme Court, in Best v. Taylor Machine Works, held Public Act 89-7 (which encompassed various Tort Reform provisions including section 2-622 changes) void in its entirety. Therefore, section 2-622 reverted back to the pre-1995 version (see #1 above).
4) On 02/04/98, Public Act 90-579 amended section 2-622 by adding naprapaths to the list of covered health professionals. Notably, Public Act 90-579 did not add naprapaths to the pre-1995 version of section 2-622 (see #1 above). Rather, it added naprapaths to the 1995 version struck down by Best (see #2 above).
In Cargill v. Czelatdko, the appellate court held that Public Act 90-579 resurrected the changes in Public Act 89-7 (see #2 above) which had been struck down by the Illinois Supreme Court's decision in Best. In other words, that the name of the 2-622 physician was required and a 90-day extension was prohibited upon refiling.
5) On 08/25/05, Public Act 94-677 amended section 2-622 in various ways (this was part of the Tort Reform bill that was struck down by Judge Larsen in Cook County and a decision on all of Tort Reform including the 2-622 changes is currently pending in the Illinois Supreme Court).
Illinois Supreme Court's Holding: the plaintiff's medical malpractice lawsuit is governed by the pre-1995 version of section 2-622, as amended with the addition of the naprapath language found in Public Act 90-579. In other words, that the name of the 2-622 physician is not required and a 90-day extension is permitted (see #1 above) upon refiling.
Bottom Line: for causes of action accruing before 08/25/05, the 2-622 physician does not need to be identified and the plaintiff is entitled to a 90-day extension for filing a 2-622 report, regardless of whether the plaintiff had previously voluntarily dismissed the lawsuit. This case overrules Cargill, Crull, and the others that are inconsistent with this opinion.
Unanswered Question: as you know, Tort Reform (Public Act 94-677) amended section 2-622 and the identity of the 2-622 physician, among other things, is required (except in Cook County) for causes of action accruing on or after 08/25/05. The Illinois Supreme Court specifically did not address this issue. The Court is presumably saving that decision for its ultimate decision on all of Tort Reform.
Thursday, June 5, 2008
Setoff (complicated but important)
Brief (to the extent possible) Facts: In Thornton v. Garcini, et. al., the plaintiff brought lawsuit against a hospital, a physician and nurses for wrongful death, survival and negligent infliction of emotional distress in relation to the death of her son during child birth and the circumstances of delivery. A jury found the physician and the nurses not liable on all claims, but ruled against the hospital on plaintiff's emotional distress claim and awarded the plaintiff $175,000. The plaintiff filed a post trial motion challenging the jury's verdict. While the motion was pending, the plaintiff settled with the nurses and the hospital for all of the claims for $175,000. The settlement agreement specifically stated that the settlement would not effect the plaintiff's claim against the physician. The plaintiff's post trial motion proceeded against the physician and eventually the appellate court ordered a new trial against the physician. After a second trial, a jury found in favor of the physician on the wrong death and survival claims, but found the physician liable for negligent infliction of emotional distress and awarded the plaintiff $700,000. The physician sought a setoff for $175,000, and the trial court denied that request. The Third District Appellate Court agreed with the trial court.
Holding/Reasoning: The physician was not entitled to a $175,000 setoff because the physician failed to show what portion of the $175,000 settlement was attributable to the claim for which he was held liable. In other words, the court held it was the physician's burden to show what portion of the $175,000 settlement was attributable to the emotional distress claim for which he was found liable.
Implications/Problems with the Court's Holding: I find this ruling problematic for at least a couple of reasons. First, if the physician is not a party to the settlement agreement between the plaintiff and the hospital/nurses, how can the physician meet his burden to show what portion of the settlement is attributable to the claim for which he is held liable when he has no control over the settlement agreement? Second, this decision appears to allow plaintiffs to manipulate a settlement agreement to avoid a setoff against co-defendants that choose to go to trial. In light of these problems, I strongly recommend evaluating a co-defendant's settlement agreement and perhaps seeking court intervention when indicated.
Thursday, April 10, 2008
Just a thought on Tort Reform...
The Law Bulletin published an article called "Doctors' med-mal payouts now detailed on state Web site" (see entire article below).
As you all know, Illinois Tort Reform refers to a series of changes made to Illinois law including caps on non-economic damages and numerous other provisions designed to limit frivolous lawsuits, reduce judgments, regulate the medical malpractice insurance industry, and increase the state’s oversight of physicians. One of the Tort Reform provisions was an “inseverability” provision, which means that if any one provision of the Tort Reform was found unconstitutional, all would be deemed invalid.
Bottom Line:
Now that Cook County has declared Tort Reform unconstitutional, I submit that all of the new regulations that are part of Tort Reform are also invalid. It seems inherently unfair and against the plain language of the "inseverability" provision to force defendants to adhere to the regulations placed upon them by Tort Reform, when Tort Reform in Cook County has been declared unconstitutional.
April 09, 2008 Volume: 154 Issue: 070
Doctors' med-mal payouts now detailed on state Web site
By Pat Milhizer
Law Bulletin staff writer
The state has launched a Web site that lets users find out whether Illinois doctors have been involved in recent medical malpractice settlements or verdicts.
The release of the information, which stems from a compromise made when state lawmakers approved caps on pain-and-suffering damages in medical malpractice cases, is available at www.idfpr.com under the ''Physician Profile'' feature.
Since the site made its debut on Friday, it has received more than 80,000 hits, said Susan Hofer, spokeswoman for the Illinois Department of Financial and Professional Regulation.
''It's clear that there are a lot of people who want to know more about their doctors,'' Hofer said.
And there's plenty of information that wasn't available before.
Visitors can search for a doctor by county, specialty or hospital affiliation.
They also can learn about educational backgrounds, where offices are located, whether doctors are accepting new patients and whether they participate in certain state and federal programs.
Doctors are required to provide that information before license renewal takes place in July. So far, 85 percent of the roughly 44,000 doctors have updated their profiles, Hofer said.
Insurance companies and the courts are expected to provide the state with information regarding medical malpractice settlements and judgments. The site will provide the size of the settlement or verdict and the county in which the lawsuit was filed.
''It gives you a new question to ask that doctor when you're talking to him or her,'' Hofer said. ''You and I both know that settlements don't necessarily mean that the doctor did anything wrong, or that he or she is a bad doctor. It's just another question to ask.''
The Web site lists information for incidents dating back five years, and the same five-year period applies to criminal convictions that will be available on the site.
Before the malpractice caps became law in 2005, Gov. Rod R. Blagojevich said he approved of the limits on the condition that doctors provide the public with the information that is now online, Hofer said.
Another feature of the compromise was that companies that sell medical malpractice insurance must release their risk data to the public. As a result, nine of the 10 companies that write those policies reduced their rates in 2007, Hofer said.
Another result of the law is that the state has more time to determine whether a doctor exhibits a pattern of problems when a complaint of gross negligence comes before the state.
Under the malpractice-cap law, plaintiffs in medical negligence cases can receive a maximum of $500,000 from physicians and no more than $1 million from hospitals to cover non-economic damages such as pain and suffering.
Supporters said that the law was needed to prevent doctors from leaving Illinois due to the high costs of malpractice insurance that stemmed from jury awards.
Trial attorneys are challenging the constitutionality of the limits, and they hope the matter will be resolved by the Illinois Supreme Court. Last November, a Cook County judge ruled that the caps violate victims' rights.
It's unclear what would happen to the Web site should the Supreme Court rule that the malpractice-cap law is unconstitutional.
''I can't comment. I have no way of knowing,'' Hofer said. ''Certainly if a judge says we don't have the statutory authority to do this, we're not going to do it. But we're hopeful that's not the case.''
As you all know, Illinois Tort Reform refers to a series of changes made to Illinois law including caps on non-economic damages and numerous other provisions designed to limit frivolous lawsuits, reduce judgments, regulate the medical malpractice insurance industry, and increase the state’s oversight of physicians. One of the Tort Reform provisions was an “inseverability” provision, which means that if any one provision of the Tort Reform was found unconstitutional, all would be deemed invalid.
Bottom Line:
Now that Cook County has declared Tort Reform unconstitutional, I submit that all of the new regulations that are part of Tort Reform are also invalid. It seems inherently unfair and against the plain language of the "inseverability" provision to force defendants to adhere to the regulations placed upon them by Tort Reform, when Tort Reform in Cook County has been declared unconstitutional.
April 09, 2008 Volume: 154 Issue: 070
Doctors' med-mal payouts now detailed on state Web site
By Pat Milhizer
Law Bulletin staff writer
The state has launched a Web site that lets users find out whether Illinois doctors have been involved in recent medical malpractice settlements or verdicts.
The release of the information, which stems from a compromise made when state lawmakers approved caps on pain-and-suffering damages in medical malpractice cases, is available at www.idfpr.com under the ''Physician Profile'' feature.
Since the site made its debut on Friday, it has received more than 80,000 hits, said Susan Hofer, spokeswoman for the Illinois Department of Financial and Professional Regulation.
''It's clear that there are a lot of people who want to know more about their doctors,'' Hofer said.
And there's plenty of information that wasn't available before.
Visitors can search for a doctor by county, specialty or hospital affiliation.
They also can learn about educational backgrounds, where offices are located, whether doctors are accepting new patients and whether they participate in certain state and federal programs.
Doctors are required to provide that information before license renewal takes place in July. So far, 85 percent of the roughly 44,000 doctors have updated their profiles, Hofer said.
Insurance companies and the courts are expected to provide the state with information regarding medical malpractice settlements and judgments. The site will provide the size of the settlement or verdict and the county in which the lawsuit was filed.
''It gives you a new question to ask that doctor when you're talking to him or her,'' Hofer said. ''You and I both know that settlements don't necessarily mean that the doctor did anything wrong, or that he or she is a bad doctor. It's just another question to ask.''
The Web site lists information for incidents dating back five years, and the same five-year period applies to criminal convictions that will be available on the site.
Before the malpractice caps became law in 2005, Gov. Rod R. Blagojevich said he approved of the limits on the condition that doctors provide the public with the information that is now online, Hofer said.
Another feature of the compromise was that companies that sell medical malpractice insurance must release their risk data to the public. As a result, nine of the 10 companies that write those policies reduced their rates in 2007, Hofer said.
Another result of the law is that the state has more time to determine whether a doctor exhibits a pattern of problems when a complaint of gross negligence comes before the state.
Under the malpractice-cap law, plaintiffs in medical negligence cases can receive a maximum of $500,000 from physicians and no more than $1 million from hospitals to cover non-economic damages such as pain and suffering.
Supporters said that the law was needed to prevent doctors from leaving Illinois due to the high costs of malpractice insurance that stemmed from jury awards.
Trial attorneys are challenging the constitutionality of the limits, and they hope the matter will be resolved by the Illinois Supreme Court. Last November, a Cook County judge ruled that the caps violate victims' rights.
It's unclear what would happen to the Web site should the Supreme Court rule that the malpractice-cap law is unconstitutional.
''I can't comment. I have no way of knowing,'' Hofer said. ''Certainly if a judge says we don't have the statutory authority to do this, we're not going to do it. But we're hopeful that's not the case.''
Tuesday, April 8, 2008
Illinois Supreme Court Overturns Appellate Court's Decision Allowing Wrongful Death for Aborted Fetus
On April 3, 2008, in Williams v. Manchester, the Illinois Supreme Court overturned the 1st District Appellate Court's decision in allowing a wrongful death claim brought by a mother who had an abortion after a car accident in which she suffered a broken pelvis (see my prior update on the Appellate Court's decision below). The Illinois Supreme Court has reversed that decision.
The Illinois Supreme Court held the plaintiff/mother could not bring a wrongful death claim for the death of her unborn child because the fetus was unharmed by the car accident; and therefore, would not have had a cause of action against the defendant at the time of the abortion. Thus, the parents cannot maintain a cause of action for wrongful death.
The Illinois Supreme Court held the plaintiff/mother could not bring a wrongful death claim for the death of her unborn child because the fetus was unharmed by the car accident; and therefore, would not have had a cause of action against the defendant at the time of the abortion. Thus, the parents cannot maintain a cause of action for wrongful death.
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