93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB2881

 

Introduced 2/6/2004, by Denny Jacobs

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Illinois Insurance Code. Provides that a reasonable degree of competition does not exist in a county if a physician has less than 3 options for obtaining medical liability insurance from insurers that are not legally or corporately affiliated or otherwise related. Requires the Department to conduct and publish an impact analysis on: (i) the number of medical malpractice claims filed and amounts recovered for economic and non-economic damages per claim per year by county; (ii) the amount of attorneys' fees paid by medical malpractice plaintiffs and defendants per case per year by county; and (iii) the impact of the standards of the Act on the cost and availability of medical malpractice coverage for hospitals and physicians. Amends the Code of Civil Procedure. Provides that an affidavit from a reviewing health professional must contain the health professional's name, address, profession, and professional license number. Provides that, in order to qualify as a reviewing health professional for purposes of giving an affidavit for a petitioner in a pro se action, the reviewing health professional must meet the expert witness standards set out in the Code. Provides that any reviewing health professional that provides a frivolous or improper review of a case shall be liable to each of the parties for the reasonable costs and attorneys' fees the parties expended in resolving the case. Provides that a review shall be found frivolous if it is substantially lacking in factual support, is based upon a standard of care or practice that lacks substantial use in the relevant specialty or field of practice, or is made for an improper purpose, such as to harass or cause needless increase in the cost of litigation. Provides that in any individual action, fees for all plaintiffs' attorneys involved in the action representing the plaintiff or plaintiffs may not exceed $1,000,000 plus reasonable and documented expenses. Provides that any expression of grief, apology, remedial action, or explanation including, but not limited to a statement that the health care provider is sorry for the outcome, provided by a health care provider to a patient, the patient's family, or the patient's legal representative about an inadequate or unanticipated treatment outcome that is provided with 72 hours of when the provider knew or should have known of the outcome shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency, or person. Provides that the disclosure of the information for the purpose of bringing a claim for damages against a provider is unlawful and any person convicted of violating any of the provisions of this Act is guilty of a Class A misdemeanor. Makes other changes. Effective January 1, 2005.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1     AN ACT in relation to health care delivery and civil
2 actions, which may be referred to as the Health Care Access
3 Improvement Amendments of 2004.
 
4     Be it enacted by the People of the State of Illinois,
5 represented in the General Assembly:
 
6     Section 1. Legislative findings. The General Assembly
7 finds that:
8     (1) Illinois is in the midst of a medical malpractice
9 insurance crisis of unprecedented magnitude.
10     (2) Illinois is among the states with the highest medical
11 malpractice insurance premiums in the nation.
12     (3) Medical malpractice insurance in Illinois is
13 unavailable or unaffordable for many hospitals and physicians.
14     (4) The high and increasing cost of medical malpractice
15 insurance in Illinois is causing health care providers to
16 eliminate or reduce the provision of medical care throughout
17 the State.
18     (5) The crisis is discouraging medical students from
19 choosing Illinois as the place they will receive their medical
20 education and practice medicine.
21     (6) The increase in medical malpractice liability
22 insurance rates is forcing physicians to practice medicine
23 without professional liability insurance, to leave Illinois,
24 to not perform high-risk procedures, or to retire early from
25 the practice of medicine.
26     (7) The high and increasing cost of medical malpractice
27 insurance is due in large part to the inefficiency and
28 unpredictability of adjudicating claims.
29     (8) Much of this inefficiency stems from the time and
30 resources needlessly spent on valuing uncertain and
31 unpredictable claims of medical negligence.
32     (9) Individuals bringing malpractice claims would benefit
33 if the parties spent less time assessing the value of the

 

 

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1 claimed injury.
2     (10) The public would benefit by making medical liability
3 coverage for hospitals and physicians more affordable, which
4 would make health care more available.
 
5     Section 5. The Illinois Insurance Code is amended by
6 changing Section 155.18 and by adding Section 155.20b as
7 follows:
 
8     (215 ILCS 5/155.18)  (from Ch. 73, par. 767.18)
9     Sec. 155.18. (a) This Section shall apply to insurance on
10 risks based upon negligence by a physician, hospital or other
11 health care provider, referred to herein as medical liability
12 insurance. This Section shall not apply to contracts of
13 reinsurance, nor to any farm, county, district or township
14 mutual insurance company transacting business under an Act
15 entitled "An Act relating to local mutual district, county and
16 township insurance companies", approved March 13, 1936, as now
17 or hereafter amended, nor to any such company operating under a
18 special charter.
19     (b) The following standards shall apply to the making and
20 use of rates pertaining to all classes of medical liability
21 insurance:
22     (1) Rates shall not be excessive or inadequate, as herein
23 defined, nor shall they be unfairly discriminatory. No rate
24 shall be held to be excessive unless such rate is unreasonably
25 high for the insurance provided, and a reasonable degree of
26 competition does not exist in the area with respect to the
27 classification to which such rate is applicable. A reasonable
28 degree of competition does not exist in a county if a physician
29 has less than 3 options for obtaining medical liability
30 insurance from insurers that are not legally or corporately
31 affiliated or otherwise related. The Department shall identify
32 via its Website the current medical liability insurance options
33 available to physicians in Illinois by county, specialty,
34 annual premium rate, and other coverage terms and conditions

 

 

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1 deemed appropriate by the Department. The Department shall also
2 identify counties throughout Illinois where a reasonable
3 degree of competition does not exist.
4     No rate shall be held inadequate unless it is unreasonably
5 low for the insurance provided and continued use of it would
6 endanger solvency of the company.
7     (2) Consideration shall be given, to the extent applicable,
8 to past and prospective loss experience within and outside this
9 State, to a reasonable margin for underwriting profit and
10 contingencies, to past and prospective expenses both
11 countrywide and those especially applicable to this State, and
12 to all other factors, including judgment factors, deemed
13 relevant within and outside this State.
14     Consideration may also be given in the making and use of
15 rates to dividends, savings or unabsorbed premium deposits
16 allowed or returned by companies to their policyholders,
17 members or subscribers.
18     (3) The systems of expense provisions included in the rates
19 for use by any company or group of companies may differ from
20 those of other companies or groups of companies to reflect the
21 operating methods of any such company or group with respect to
22 any kind of insurance, or with respect to any subdivision or
23 combination thereof.
24     (4) Risks may be grouped by classifications for the
25 establishment of rates and minimum premiums. Classification
26 rates may be modified to produce rates for individual risks in
27 accordance with rating plans which establish standards for
28 measuring variations in hazards or expense provisions, or both.
29 Such standards may measure any difference among risks that have
30 a probable effect upon losses or expenses. Such classifications
31 or modifications of classifications of risks may be established
32 based upon size, expense, management, individual experience,
33 location or dispersion of hazard, or any other reasonable
34 considerations and shall apply to all risks under the same or
35 substantially the same circumstances or conditions. The rate
36 for an established classification should be related generally

 

 

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1 to the anticipated loss and expense factors of the class.
2     (c) Every company writing medical liability insurance
3 shall file with the Director of Insurance the rates and rating
4 schedules it uses for medical liability insurance.
5     (1) This filing shall occur at least annually and as often
6 as the rates are changed or amended.
7     (2) For the purposes of this Section any change in premium
8 to the company's insureds as a result of a change in the
9 company's base rates or a change in its increased limits
10 factors shall constitute a change in rates and shall require a
11 filing with the Director.
12     (3) It shall be certified in such filing by an officer of
13 the company and a qualified actuary that the company's rates
14 are based on sound actuarial principles and are not
15 inconsistent with the company's experience.
16     (d) If after a hearing the Director finds:
17     (1) that any rate, rating plan or rating system violates
18 the provisions of this Section applicable to it, he may issue
19 an order to the company which has been the subject of the
20 hearing specifying in what respects such violation exists and
21 stating when, within a reasonable period of time, the further
22 use of such rate or rating system by such company in contracts
23 of insurance made thereafter shall be prohibited;
24     (2) that the violation of any of the provisions of this
25 Section applicable to it by any company which has been the
26 subject of hearing was wilful, he may suspend or revoke, in
27 whole or in part, the certificate of authority of such company
28 with respect to the class of insurance which has been the
29 subject of the hearing.
30 (Source: P.A. 79-1434.)
 
31     (215 ILCS 5/155.20b new)
32     Sec. 155.20b. Impact Analysis. The Department of Insurance
33 shall conduct and publish an annual study of the impact of this
34 amendatory Act of the 93rd General Assembly on the following:
35         (1) The number of medical malpractice claims filed and

 

 

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1     amounts recovered for economic and non-economic damages
2     per claim per year by county.
3         (2) The amount of attorneys' fees paid by medical
4     malpractice plaintiffs and defendants per case per year by
5     county.
6         (3) The impact of the standards of this Act on the cost
7     and availability of medical malpractice coverage for
8     hospitals and physicians.
9     Every 2 years, the Department of Insurance shall make
10     recommendations to the Governor, the Speaker of the House, and
11     the President of the Senate on whether any portion of this
12     amendatory Act of the 93rd General Assembly should be
13     supplemented, amended, or repealed.
 
14     Section 10. The Code of Civil Procedure is amended by
15 changing Sections 2-622, 2-1114, 8-1901, and 8-2501 and by
16 adding Sections 2-624.5 and 2-1707.5 as follows:
 
17     (735 ILCS 5/2-622)  (from Ch. 110, par. 2-622)
18     (Text of Section WITHOUT the changes made by P.A. 89-7,
19 which has been held unconstitutional)
20     Sec. 2-622. Healing art malpractice.
21     (a) In any action, whether in tort, contract or otherwise,
22 in which the plaintiff seeks damages for injuries or death by
23 reason of medical, hospital, or other healing art malpractice,
24 the plaintiff's attorney or the plaintiff, if the plaintiff is
25 proceeding pro se, shall file an affidavit, attached to the
26 original and all copies of the complaint, declaring one of the
27 following:
28         1. That the affiant has consulted and reviewed the
29     facts of the case with a health professional who the
30     affiant reasonably believes: (i) is knowledgeable in the
31     relevant issues involved in the particular action; (ii)
32     practices or has practiced within the last 6 years or
33     teaches or has taught within the last 6 years in the same
34     area of health care or medicine that is at issue in the

 

 

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1     particular action; and (iii) is qualified by experience or
2     demonstrated competence in the subject of the case; that
3     the reviewing health professional has determined in a
4     written report, after a review of the medical record and
5     other relevant material involved in the particular action
6     that there is a reasonable and meritorious cause for the
7     filing of such action; and that the affiant has concluded
8     on the basis of the reviewing health professional's review
9     and consultation that there is a reasonable and meritorious
10     cause for filing of such action. If the affidavit is filed
11     as to a defendant who is a physician licensed to treat
12     human ailments without the use of drugs or medicines and
13     without operative surgery, a dentist, a podiatrist, a
14     psychologist, or a naprapath, the written report must be
15     from a health professional licensed in the same profession,
16     with the same class of license, as the defendant. For
17     affidavits filed as to all other defendants, the written
18     report must be from a physician licensed to practice
19     medicine in all its branches. In either event, the
20     affidavit must identify the profession of the reviewing
21     health professional's name, address, profession, and
22     professional license number. Any reviewing health
23     professional under this Section must satisfy the expert
24     witness standards of Section 8-2501 of this Code
25     professional. A copy of the written report, clearly
26     identifying the plaintiff and the reasons for the reviewing
27     health professional's determination that a reasonable and
28     meritorious cause for the filing of the action exists, must
29     be attached to the affidavit, including but information
30     which would identify the reviewing health professional and
31     the reasons this health professional satisfies the expert
32     witness conditions of Section 8-2501 of this Code may be
33     deleted from the copy so attached. Any reviewing health
34     professional that provides a frivolous or improper review
35     of a case shall be liable to each of the parties for the
36     reasonable costs and attorneys' fees the parties expended

 

 

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1     in resolving the case. A review shall be found frivolous if
2     it is substantially lacking in factual support, is based
3     upon a standard of care or practice that lacks substantial
4     use in the relevant specialty or field of practice, or is
5     made for an improper purpose such as to harass or cause
6     needless increase in the cost of litigation.
7         2. That the affiant was unable to obtain a consultation
8     required by paragraph 1 because a statute of limitations
9     would impair the action and the consultation required could
10     not be obtained before the expiration of the statute of
11     limitations. If an affidavit is executed pursuant to this
12     paragraph, the certificate and written report required by
13     paragraph 1 shall be filed within 90 days after the filing
14     of the complaint. The defendant shall be excused from
15     answering or otherwise pleading until 30 days after being
16     served with a certificate required by paragraph 1.
17         3. That a request has been made by the plaintiff or his
18     attorney for examination and copying of records pursuant to
19     Part 20 of Article VIII of this Code and the party required
20     to comply under those Sections has failed to produce such
21     records within 60 days of the receipt of the request. If an
22     affidavit is executed pursuant to this paragraph, the
23     certificate and written report required by paragraph 1
24     shall be filed within 90 days following receipt of the
25     requested records. All defendants except those whose
26     failure to comply with Part 20 of Article VIII of this Code
27     is the basis for an affidavit under this paragraph shall be
28     excused from answering or otherwise pleading until 30 days
29     after being served with the certificate required by
30     paragraph 1.
31     (b) Where a certificate and written report are required
32 pursuant to this Section a separate certificate and written
33 report shall be filed as to each defendant who has been named
34 in the complaint and shall be filed as to each defendant named
35 at a later time.
36     (c) Where the plaintiff intends to rely on the doctrine of

 

 

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1 "res ipsa loquitur", as defined by Section 2-1113 of this Code,
2 the certificate and written report must state that, in the
3 opinion of the reviewing health professional, negligence has
4 occurred in the course of medical treatment. The affiant shall
5 certify upon filing of the complaint that he is relying on the
6 doctrine of "res ipsa loquitur".
7     (d) When the attorney intends to rely on the doctrine of
8 failure to inform of the consequences of the procedure, the
9 attorney shall certify upon the filing of the complaint that
10 the reviewing health professional has, after reviewing the
11 medical record and other relevant materials involved in the
12 particular action, concluded that a reasonable health
13 professional would have informed the patient of the
14 consequences of the procedure.
15     (e) Allegations and denials in the affidavit, made without
16 reasonable cause and found to be untrue, shall subject the
17 party pleading them or his attorney, or both, to the payment of
18 reasonable expenses, actually incurred by the other party by
19 reason of the untrue pleading, together with reasonable
20 attorneys' fees to be summarily taxed by the court upon motion
21 made within 30 days of the judgment or dismissal. In no event
22 shall the award for attorneys' fees and expenses exceed those
23 actually paid by the moving party, including the insurer, if
24 any. In proceedings under this paragraph (e), the moving party
25 shall have the right to depose and examine any and all
26 reviewing health professionals who prepared reports used in
27 conjunction with an affidavit required by this Section.
28     (f) A reviewing health professional who in good faith
29 prepares a report used in conjunction with an affidavit
30 required by this Section shall have civil immunity from
31 liability which otherwise might result from the preparation of
32 such report.
33     (g) The failure to file a certificate required by this
34 Section shall be grounds for dismissal under Section 2-619.
35     (h) This Section does not apply to or affect any actions
36 pending at the time of its effective date, but applies to cases

 

 

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1 filed on or after its effective date.
2     (i) This amendatory Act of 1997 does not apply to or affect
3 any actions pending at the time of its effective date, but
4 applies to cases filed on or after its effective date.
5     (j) This amendatory Act of the 93rd General Assembly does
6 not apply to or affect any actions pending at the time of its
7 effective date, but does apply to cases filed on or after its
8 effective date.
9 (Source: P.A. 86-646; 90-579, eff. 5-1-98.)
 
10     (735 ILCS 5/2-624.5 new)
11     Sec. 2-624.5. Health care claims based upon apparent or
12 ostensible agency. In any action against a hospital or hospital
13 affiliate arising out of the provision of health care, in which
14 the plaintiff seeks damages for any loss, bodily injury, or
15 death, in order to state a claim based upon apparent or
16 ostensible agency, a party must allege with specific facts and
17 prove the following:
18     (1) that the alleged principal through its own action or
19 conduct created the reasonable inference by the plaintiff that
20 the alleged agent was authorized to act on behalf of the
21 alleged principal;
22     (2) that the plaintiff reasonably relied upon the alleged
23 principal's action or conduct suggesting that the alleged agent
24 was the alleged principal's actual agent; and
25     (3) that a reasonable person would not have sought goods or
26 services from the alleged principal if that person knew that
27 the alleged agent was not the alleged principal's actual agent.
28     A plaintiff basing a claim upon apparent or ostensible
29 agency must prove these elements by a preponderance of the
30 evidence.
31     This amendatory Act of the 93rd General Assembly applies to
32 causes of action accruing on or after its effective date.
 
33     (735 ILCS 5/2-1114)  (from Ch. 110, par. 2-1114)
34     Sec. 2-1114. Contingent fees for attorneys in medical

 

 

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1 malpractice actions. (a) In all medical malpractice actions the
2 total contingent fee for plaintiff's attorney or attorneys
3 shall not exceed the following amounts:
4     33 1/3% of the first $150,000 of the sum recovered;
5     25% of the next $850,000 of the sum recovered; and
6     20% of any amount recovered over $1,000,000 of the sum
7 recovered.
8     (b) For purposes of determining any lump sum contingent
9 fee, any future damages recoverable by the plaintiff in
10 periodic installments shall be reduced to a lump sum value.
11     (c) The court may review contingent fee agreements for
12 fairness. In special circumstances, where an attorney performs
13 extraordinary services involving more than usual participation
14 in time and effort the attorney may apply to the court for
15 approval of additional compensation.
16     (d) As used in this Section, "contingent fee basis"
17 includes any fee arrangement under which the compensation is to
18 be determined in whole or in part on the result obtained.
19     (e) In any individual action, fees for all plaintiffs'
20 attorneys involved in the action representing the plaintiff or
21 plaintiffs may not exceed $1,000,000 plus reasonable and
22 documented expenses. The non-prevailing defendants shall pay
23 such fees in addition to any award for economic and noneconomic
24 damages in the case.
25 (Source: P.A. 84-7.)
 
26     (735 ILCS 5/2-1707.5 new)
27     Sec. 2-1707.5. Preservation of emergency medical care.
28     (a) The General Assembly acknowledges that many hospitals
29 and physicians provide great benefits to the citizens of
30 Illinois by operating emergency departments and trauma centers
31 and providing services to individuals in need of emergency care
32 throughout the State, without regard to their ability to pay
33 for the care and often without payment for services. The
34 General Assembly also acknowledges that many hospitals and
35 physicians are discontinuing their status as trauma centers or

 

 

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1 reducing the scope of their emergency care due to the fear of
2 lawsuits based on claims of medical negligence. The public and
3 society in general will suffer if these trauma centers cease
4 operations or hospital emergency department reduce their level
5 of emergency care.
6     (b) Any physician licensed under the Medical Practice Act
7 of 1987, any licensed hospital and any of the hospital's
8 employees, agents, apparent agents, and independent
9 contractors who, in good faith provide emergency care or
10 services to a person who is in need of emergency medical
11 treatment and has presented to a hospital for emergency medical
12 care, shall not be liable for civil damages as a result of his,
13 her, or its acts or omissions, except for willful or wanton
14 misconduct on the part of the physician, the hospital, or any
15 of the hospital's employees, independent contractors, agents,
16 or apparent agents, in providing the care.
 
17     (735 ILCS 5/8-1901)  (from Ch. 110, par. 8-1901)
18     Sec. 8-1901. Admission of liability - Effect.
19     (a) The providing of, or payment for, medical, surgical,
20 hospital, or rehabilitation services, facilities, or equipment
21 by or on behalf of any person, or the offer to provide, or pay
22 for, any one or more of the foregoing, shall not be construed
23 as an admission of any liability by such person or persons.
24 Testimony, writings, records, reports or information with
25 respect to the foregoing shall not be admissible in evidence as
26 an admission of any liability in any action of any kind in any
27 court or before any commission, administrative agency, or other
28 tribunal in this State, except at the instance of the person or
29 persons so making any such provision, payment or offer.
30     (b) Any expression of grief, apology, remedial action, or
31 explanation, including but not limited to a statement that the
32 health care provider is sorry for the outcome, provided by a
33 health care provider to a patient, the patient's family, or the
34 patient's legal representative about an inadequate or
35 unanticipated treatment outcome that is provided with 72 hours

 

 

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1 of when the provider knew or should have known of the outcome
2 shall not be admissible as evidence, nor discoverable in any
3 action of any kind in any court or before any tribunal, board,
4 agency, or person. The disclosure of any such information,
5 whether proper or improper, shall not waive or have any effect
6 upon its confidentiality, nondiscoverability, or
7 inadmissibility. The disclosure of the information for the
8 purpose of bringing a claim for damages against a provider is
9 unlawful, and any person convicted of violating any of the
10 provisions of this Act is guilty of a Class A misdemeanor. As
11 used in this Act a "health care provider" is any hospital, any
12 hospital employee or agent, a physician, or other licensed
13 health care professional.
14 (Source: P.A. 82-280.)
 
15     (735 ILCS 5/8-2501)  (from Ch. 110, par. 8-2501)
16     (Text of Section WITHOUT the changes made by P.A. 89-7,
17 which has been held unconstitutional)
18     Sec. 8-2501. Expert Witness Standards. In any case in which
19 the standard of care given by a medical profession is at issue,
20 the court shall apply the following standards to determine if a
21 witness qualifies as an expert witness and can testify on the
22 issue of the appropriate standard of care.
23     (a) Whether the witness is board certified or board
24 eligible in the same medical specialties as the defendant and
25 is familiar with Relationship of the medical specialties of the
26 witness to the medical problem or problems and the type of
27 treatment administered in the case;
28     (b) Whether the witness has devoted 75% a substantial
29 portion of his or her working hours time to the practice of
30 medicine, teaching or University based research in relation to
31 the medical care and type of treatment at issue which gave rise
32 to the medical problem of which the plaintiff complains;
33     (c) whether the witness is licensed by any state or the
34 District of Columbia in the same profession as the defendant;
35 and

 

 

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1     (d) whether, in the case against a nonspecialist, the
2 witness can demonstrate a sufficient familiarity with the
3 standard of care practiced in this State.
4     An expert shall provide proof of active practice, teaching,
5 or engaging in university-based research. If retired, an expert
6 must provide proof of attendance and completion of continuing
7 education courses for 3 years previous to giving testimony. An
8 expert who has not actively practiced, taught, or been engaged
9 in university-based research for 10 years may not be qualified
10 as an expert witness.
11     This amendatory Act of the 93rd General Assembly applies to
12 causes of action accruing on or after its effective date.
13 (Source: P.A. 84-7.)
 
14     Section 99. Effective date. This Act takes effect January
15 1, 2005.

 

 

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1 INDEX
2 Statutes amended in order of appearance
3     215 ILCS 5/155.18 from Ch. 73, par. 767.18
4     215 ILCS 5/155.20b new
5     735 ILCS 5/2-622 from Ch. 110, par. 2-622
6     735 ILCS 5/2-624.5 new
7     735 ILCS 5/2-1114 from Ch. 110, par. 2-1114
8     735 ILCS 5/2-1707.5 new
9     735 ILCS 5/8-1901 from Ch. 110, par. 8-1901
10     735 ILCS 5/8-2501 from Ch. 110, par. 8-2501