Illinois Find Damage Caps Unconstitutional

In a decision tort “reformers” are calling a disaster — although many others would disagree — the Illinois Supreme Court has just overturned the state’s five-year-old medical malpractice “reform” law. In a 4 to 2 decision, the Illinois justices decided that the law’s cap on noneconomic damages violated the state constitution’s separation of powers. By setting an arbitrary limit on the amount of damages a plaintiff can receive, the legislature imposed a decision on courts that belongs to judges and juries, the justices said.

Recently I’ve written about constitutional challenges to “tort reform” in Missouri, Georgia, and Mississippi. In each of these cases plaintiffs have argued that the legislature has no constitutional right to tie the hands of courts by capping damage awards. There are some other similarities in the four challenges as well.

In each state, the law being challenged was enacted in 2004 and 2005. In each state, the legislature was sold on the idea that there was a lawsuit “crisis” driving doctors and employers out of the state, and the only way to stop the hemorrhage was through “tort reform” laws that limited damages and made it harder to file lawsuits. This is a critical issue for people with asbestos-related disease such as mesothelioma, who so often need damage awards to care for themselves and their families.

And in each state, if you look hard enough, you find that belief in a litigation “crisis” was sold to the legislature by “citizens” groups with connections to the insurance industry and also to the American Tort Reform Association. According to Sourcewatch, ATRA is “a coalition of medical professional associations and various industry groups — such as from the chemical, tobacco and drug industries — promoting changes to U.S legislation to limit corporate and professional liability for damage caused by their products and services.”

ATRA and its network of “astroturf” organizations persuade state lawmakers that their states are judicial “hellholes” driving doctors, insurers and employers out of their states. And the “remedy” to the “crisis” is, of course, “tort reform” laws that place barriers between citizens and justice.

If you listen to ATRA, it seems that so many doctors were being driven out of so many states that one wonders where they were all going. In fact, according to the American Medical Association’s “Physician Characteristics and Distribution” data, the stories about doctors stampeding off to who knows where are, um, false. There is no clear pattern of doctors moving from one state to another because of malpractice law.

Further, in these states stories about a litigation “crisis” were wildly overblown. In fact, a key part of the constitutional challenge in Missouri is that the law was crafted based on a false assumption — that out-of-control lawsuits had created a “crisis” that was driving health care costs up and doctors out of the state. The legislature believed it had to write the law to respond to the crisis.

However, the truth is that the number of medical malpractice lawsuits in Missouri long had been in decline when the law was enacted. There was no “crisis.”

Decisions in Missouri, Georgia, Mississippi, and some other states are pending.

— Barbara O’Brien

This entry was posted on Tuesday, February 9th, 2010 at 10:43 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.