SB2997 93RD GENERAL ASSEMBLY

LRB093 19777 LCB 45519 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB2997

Introduced 2/6/2004, by Dave Syverson

SYNOPSIS AS INTRODUCED:

735 ILCS 5/2-1114	from Ch. 110, par. 2-1114
735 ILCS 5/2-1706.5 new
735 ILCS 5/2-1706.7 new

Amends the Code of Civil Procedure. Limits attorney's fees in medical malpractice actions to $1,000,000 plus reasonable and documented expenses. Provides that the non-prevailing defendants shall pay such fees in addition to any award for economic and noneconomic damages in the case. Provides standards for determining economic and non-economic damages in medical malpractice actions. Effective January 1, 2005.

A BILL FOR

AN ACT in relation to patient compensation, safety, and access to health care, which may be referred to as the Fair Patient Compensation and Safety Improvement Amendments of 2004.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Legislative findings. The General Assembly finds that:

(1) Illinois is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.

(2) Illinois is among the states with the highest medical malpractice insurance premiums in the nation.

(3) Medical malpractice insurance in Illinois is unavailable or unaffordable for many hospitals and physicians.

(4) The high and increasing cost of medical malpractice insurance in Illinois is causing health care providers to eliminate or reduce the provision of medical care throughout the State.

(5) The crisis is discouraging medical students from choosing Illinois as the place they will receive their medical education and practice medicine.

(6) The increase in medical malpractice liability insurance rates is forcing physicians to practice medicine without professional liability insurance, to leave Illinois, to not perform high-risk procedures, or to retire early from the practice of medicine.

(7) The high and increasing cost of medical malpractice insurance is due in large part to the inefficiency and unpredictably of adjudicating claims.

(8) Much of this inefficiency stems from the time and resources needlessly spent on valuing uncertain and unpredictable claims of medical negligence.

(9) Individuals bringing malpractice claims would benefit if the parties spent less time assessing the value of the claimed injury.

(10) The public would benefit by making medical liability coverage for hospitals and physicians more affordable, which would make health care more available.

(11) The public would benefit from creating incentives for hospitals to ensure that certain unacceptable events never occur in hospitals.

(12) A fair and reasonable range for awarding non-economic damages should be used to create an incentive for hospitals to encourage safer hospital practice and to avoid extensively debating the value of the claim of medical negligence.

(13) A fair and reasonable range for awarding non-economic damages should account for differences in the non-economic losses the plaintiff may suffer based on the type of harm or medical outcome of medical negligence.

Section 5. The Code of Civil Procedure is amended by changing Section 2-1114 and by adding Sections 2-1706.5 and 2-1706.7 as follows:

(735 ILCS 5/2-1114) (from Ch. 110, par. 2-1114)

Sec. 2-1114. Contingent fees for attorneys in medical malpractice actions.

(a) In all medical malpractice actions the total contingent fee for plaintiff's attorney or attorneys shall not exceed the following amounts:

33 1/3% of the first $150,000 of the sum recovered;

25% of the next $850,000 of the sum recovered; and

20% of any amount recovered over $1,000,000 of the sum recovered.

(b) For purposes of determining any lump sum contingent fee, any future damages recoverable by the plaintiff in periodic installments shall be reduced to a lump sum value.

(c) The court may review contingent fee agreements for fairness. In special circumstances, where an attorney performs extraordinary services involving more than usual participation in time and effort the attorney may apply to the court for approval of additional compensation.

(d) As used in this Section, "contingent fee basis" includes any fee arrangement under which the compensation is to be determined in whole or in part on the result obtained.

(e) In any individual action, fees for all plaintiffs' attorneys involved in the action may not exceed $1,000,000 plus reasonable and documented expenses. The non-prevailing defendants shall pay such fees in addition to any award for economic and non-economic damages in the case.

This amendatory Act of the 93rd General Assembly applies to causes of action accruing on or after its effective date.

(Source: P.A. 84-7.)

(735 ILCS 5/2-1706.5 new)

Sec. 2-1706.5. Standards for economic and non-economic damages.

(a) In any medical malpractice action in which economic and non-economic damages may be awarded, the following standards shall apply:

(1) In a case where the hospital's care of the patient caused the patient's death, the total amount of non-economic damages shall not exceed $750,000 awarded to all plaintiffs in any civil action arising out of the care.

(2) In a case where the hospital's care of the patient caused the patient's catastrophic injury, the total amount of non-economic damages recovered shall not exceed $1,000,000 awarded to all plaintiffs in any civil action arising out of the care.

(3) Notwithstanding subdivisions (1) and (2) of this subsection, in a case where the hospital's care of the patient caused the patient's death or catastrophic injury and the hospital is found liable under the doctrine of "res ipsa loquitur", as defined by Section 2-1113 of the Code of Civil Procedure, the total amount of non-economic damages shall not exceed $2,000,000 awarded to all plaintiffs in any civil action arising out of the care.

(4) In any case not covered by subdivision (1), (2), or (3) of this subsection, the total amount of non-economic damages shall not exceed $500,000 awarded to all plaintiffs in any civil action arising out of care that caused harm to the plaintiff.

(5) In a case where the physician's care of the patient caused the patient's death or other injury, the total amount of non-economic damages shall not exceed $250,000 awarded to all plaintiffs in any civil action arising out of the care.

(6) In awarding damages in a medical malpractice case, the finder of fact shall render verdicts with specific award of damages for economic loss, if any, and specific award of damages for non-economic loss, if any.

(7) In any medical malpractice action where an individual plaintiff earns less than the annual average weekly wage, as determined by the Industrial Commission, at the time the action is filed, any award for economic and non-economic damages must include an amount equal to this wage amount multiplied by the plaintiff's life expectancy in total weeks as if the plaintiff was earning this wage at the time of the injury that gave rise to the action.

(8) Any party in a medical malpractice case may introduce annuity evidence to inform the fact finder about the time value of an award and its ability to cover the plaintiff's damages over time.

(9) The finder of fact shall take into account and be aware of the extent to which the award is subject to federal and State income tax laws.

(10) The finder of fact shall take into account and be made aware that the plaintiff's attorneys' fees in the case may not be paid out of any amounts awarded for economic or non-economic damages in the case.

(11) The defendants in a medical malpractice action shall pay the plaintiff's attorneys' fees as a separate item of damages based upon the contingency fee provisions of Section 2-1114 of the Code of Civil Procedure in addition to the award of any economic or non-economic damages recovered by the plaintiff.

(b) As used in this Section, the following terms have the meanings ascribed to them as follows:

"Birth-related injury" means any permanent, disabling damage to the brain or spine caused by oxygen deprivation or mechanical injury to an infant during labor, delivery, or resuscitation.

"Catastrophic injury" means one of the following outcomes caused by negligence in a hospital:

(1) the patient is hemiplegic, paraplegic, or quadriplegic resulting in a total permanent functional loss of one or more limbs caused by injury to the brain or spinal cord or both;

(2) the patient has total permanent functional loss of sight, hearing, or one or more limbs unrelated to the natural course of the patient's illness or underlying condition;

(3) the patient has permanently impaired cognitive capacity rendering him or her incapable of making independent, responsible life decisions and permanently incapable of independently performing the activities of normal daily living;

(4) the patient's reproductive organ has been permanently damaged resulting in an inability to procreate; or

(5) a birth-related injury.

"Economic damages" means all damages which are tangible, such as damages for past and future medical expenses and loss of income or earnings.

"Hospital" means a hospital licensed under the Hospital Licensing Act and all of its corporate affiliates, employees, agents, and apparent agents and a hospital licensed under the University of Illinois Hospital Act and all of its employees, agents, and apparent agents.

"Medical malpractice action" means any civil action in tort, contract, or otherwise, in which the plaintiff seeks damages for injuries or death arising out of the action or inaction of a hospital in rendering health care services to a patient inside the hospital or arising out of the action or inaction of a physician.

"Non-economic damages" mean subjective, non-pecuniary damages arising from death, pain, suffering, disfigurement, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, physical impairment, injury to reputation, humiliation, embarrassment, loss of enjoyment if life, hedonic damages, increased risk of future injury, other non-pecuniary damages, and any other theory of damages such as fear of loss, illness, injury, or future loss.

"Physician" means a physician licensed to practice medicine in all of its branches under the Medical Practice Act of 1987 and any physician-owned legal entity.

(c) This amendatory Act of the 93rd General Assembly applies to causes of action accruing on or after its effective date.

(735 ILCS 5/2-1706.7 new)

Sec. 2-1706.7. Invalidity. If subdivisions (a)(1), (a)(2), (a)(3), or (a)(4) of Section 2-1706.5 are found to be unconstitutional or invalid for any reason, the total amount of non-economic damages recovered for any injury or death resulting primarily from medical malpractice shall not exceed $2,000,000 for all hospital defendants and awarded to all plaintiffs in any civil action arising out of the malpractice.

This amendatory Act of the 93rd General Assembly applies to causes of action accruing on or after its effective date

Section 99. Effective date. This Act takes effect January 1, 2005.