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Full Text of SB3439  97th General Assembly

SB3439 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB3439

 

Introduced 2/7/2012, by Sen. Kirk W. Dillard

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 5/2-622  from Ch. 110, par. 2-622
735 ILCS 5/2-1303  from Ch. 110, par. 2-1303
735 ILCS 5/2-1704.5
735 ILCS 5/8-1901  from Ch. 110, par. 8-1901
735 ILCS 5/8-2501  from Ch. 110, par. 8-2501
745 ILCS 49/30

    Amends the Code of Civil Procedure and the Good Samaritan Act to reenact certain provisions of Public Act 94-677, which was declared to be unconstitutional. Includes explanatory and validation provisions. Makes changes relating to the reenactment. Also makes these substantive changes: Amends the Code of Civil Procedure to lower the rate of interest payable on judgments; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment. Includes an inseverability provision. Effective immediately.


LRB097 15944 AJO 62356 b

 

 

A BILL FOR

 

SB3439LRB097 15944 AJO 62356 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Findings; purpose; text and revisory changes;
5validation; additional material.
6    (a) The Illinois Supreme Court, in Lebron v. Gottlieb
7Memorial Hospital, found that the limitations on noneconomic
8damages in medical malpractice actions that were created in
9Public Act 94-677, contained in Section 2-1706.5 of the Code of
10Civil Procedure, violate the separation of powers clause of the
11Illinois Constitution. Because Public Act 94-677 contained an
12inseverability provision, the Court held the Act to be void in
13its entirety. The Court emphasized, however, that "because the
14other provisions contained in Public Act 94-677 are deemed
15invalid solely on inseverability grounds, the legislature
16remains free to reenact any provisions it deems appropriate".
17    (b) It is the purpose of this Act to reenact certain
18provisions of Public Act 94-677 that did not involve
19limitations on noneconomic damages in medical malpractice
20actions and to validate certain actions taken in reliance on
21those provisions.
22    (c) This Act reenacts (i) Sections 2-622, 2-1704.5, 8-1901,
23and 8-2501 of the Code of Civil Procedure and (ii) Section 30
24of the Good Samaritan Act. In those Sections, certain effective

 

 

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1date references and applicability provisions have been changed
2to reflect the reenactment. This Act does not reenact any other
3provisions of Public Act 94-677.
4    (d) In this Act, the base text of the reenacted Sections is
5set forth as it existed at the time of the Supreme Court's
6decision, including any amendments that occurred after P.A.
794-677. Striking and underscoring is used only to show the
8changes being made to that base text.
9    (e) All otherwise lawful actions taken in reasonable
10reliance on or pursuant to the Sections reenacted by this Act,
11as set forth in Public Act 94-677 or subsequently amended, by
12any officer, employee, agency, or unit of State or local
13government or by any other person or entity, are hereby
14validated.
15    With respect to actions taken in relation to matters
16arising under the Sections reenacted by this Act, a person is
17rebuttably presumed to have acted in reasonable reliance on and
18pursuant to the provisions of Public Act 94-677, as those
19provisions had been amended at the time the action was taken.
20     With respect to their administration of matters arising
21under the Sections reenacted by this Act, officers, employees,
22agencies, and units of State and local government shall
23continue to apply the provisions of Public Act 94-677, as those
24provisions had been amended at the relevant time.
25    (f) This Act also contains material making new substantive
26changes. It amends Sections 2-1303 and 8-2006 of the Code of

 

 

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1Civil Procedure to lower the rate of interest payable on
2judgments; to provide for annual indexing of those rates; and
3to delay the accrual of interest in certain cases where a
4federal Medicare lien may exist against the judgment.
 
5    Section 5. The Code of Civil Procedure is amended by
6reenacting and changing Sections 2-622, 2-1704.5, 8-1901, and
78-2501 and by changing Sections 2-1303 and 8-2006 as follows:
 
8    (735 ILCS 5/2-622)  (from Ch. 110, par. 2-622)
9    Sec. 2-622. Healing art malpractice.
10    (a) In any action, whether in tort, contract or otherwise,
11in which the plaintiff seeks damages for injuries or death by
12reason of medical, hospital, or other healing art malpractice,
13the plaintiff's attorney or the plaintiff, if the plaintiff is
14proceeding pro se, shall file an affidavit, attached to the
15original and all copies of the complaint, declaring one of the
16following:
17        1. That the affiant has consulted and reviewed the
18    facts of the case with a health professional who the
19    affiant reasonably believes: (i) is knowledgeable in the
20    relevant issues involved in the particular action; (ii)
21    practices or has practiced within the last 5 years or
22    teaches or has taught within the last 5 years in the same
23    area of health care or medicine that is at issue in the
24    particular action; and (iii) meets the expert witness

 

 

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1    standards set forth in paragraphs (a) through (d) of
2    Section 8-2501; that the reviewing health professional has
3    determined in a written report, after a review of the
4    medical record and other relevant material involved in the
5    particular action that there is a reasonable and
6    meritorious cause for the filing of such action; and that
7    the affiant has concluded on the basis of the reviewing
8    health professional's review and consultation that there
9    is a reasonable and meritorious cause for filing of such
10    action. A single written report must be filed to cover each
11    defendant in the action. As to defendants who are
12    individuals, the written report must be from a health
13    professional licensed in the same profession, with the same
14    class of license, as the defendant. For written reports
15    filed as to all other defendants, who are not individuals,
16    the written report must be from a physician licensed to
17    practice medicine in all its branches who is qualified by
18    experience with the standard of care, methods, procedures
19    and treatments relevant to the allegations at issue in the
20    case. In either event, the written report must identify the
21    profession of the reviewing health professional. A copy of
22    the written report, clearly identifying the plaintiff and
23    the reasons for the reviewing health professional's
24    determination that a reasonable and meritorious cause for
25    the filing of the action exists, including the reviewing
26    health care professional's name, address, current license

 

 

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1    number, and state of licensure, must be attached to the
2    affidavit. Information regarding the preparation of a
3    written report by the reviewing health professional shall
4    not be used to discriminate against that professional in
5    the issuance of medical liability insurance or in the
6    setting of that professional's medical liability insurance
7    premium. No professional organization may discriminate
8    against a reviewing health professional on the basis that
9    the reviewing health professional has prepared a written
10    report.
11        2. That the affiant was unable to obtain a consultation
12    required by paragraph 1 because a statute of limitations
13    would impair the action and the consultation required could
14    not be obtained before the expiration of the statute of
15    limitations. If an affidavit is executed pursuant to this
16    paragraph, the affidavit and written report required by
17    paragraph 1 shall be filed within 90 days after the filing
18    of the complaint. No additional 90-day extensions pursuant
19    to this paragraph shall be granted, except where there has
20    been a withdrawal of the plaintiff's counsel. The defendant
21    shall be excused from answering or otherwise pleading until
22    30 days after being served with an affidavit and a report
23    required by paragraph 1.
24        3. That a request has been made by the plaintiff or his
25    attorney for examination and copying of records pursuant to
26    Part 20 of Article VIII of this Code and the party required

 

 

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1    to comply under those Sections has failed to produce such
2    records within 60 days of the receipt of the request. If an
3    affidavit is executed pursuant to this paragraph, the
4    affidavit and written report required by paragraph 1 shall
5    be filed within 90 days following receipt of the requested
6    records. All defendants except those whose failure to
7    comply with Part 20 of Article VIII of this Code is the
8    basis for an affidavit under this paragraph shall be
9    excused from answering or otherwise pleading until 30 days
10    after being served with the affidavit and report required
11    by paragraph 1.
12    (b) Where an affidavit and written report are required
13pursuant to this Section a separate affidavit and written
14report shall be filed as to each defendant who has been named
15in the complaint and shall be filed as to each defendant named
16at a later time.
17    (c) Where the plaintiff intends to rely on the doctrine of
18"res ipsa loquitur", as defined by Section 2-1113 of this Code,
19the affidavit and written report must state that, in the
20opinion of the reviewing health professional, negligence has
21occurred in the course of medical treatment. The affiant shall
22certify upon filing of the complaint that he is relying on the
23doctrine of "res ipsa loquitur".
24    (d) When the attorney intends to rely on the doctrine of
25failure to inform of the consequences of the procedure, the
26attorney shall certify upon the filing of the complaint that

 

 

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1the reviewing health professional has, after reviewing the
2medical record and other relevant materials involved in the
3particular action, concluded that a reasonable health
4professional would have informed the patient of the
5consequences of the procedure.
6    (e) Allegations and denials in the affidavit, made without
7reasonable cause and found to be untrue, shall subject the
8party pleading them or his attorney, or both, to the payment of
9reasonable expenses, actually incurred by the other party by
10reason of the untrue pleading, together with reasonable
11attorneys' fees to be summarily taxed by the court upon motion
12made within 30 days of the judgment or dismissal. In no event
13shall the award for attorneys' fees and expenses exceed those
14actually paid by the moving party, including the insurer, if
15any. In proceedings under this paragraph (e), the moving party
16shall have the right to depose and examine any and all
17reviewing health professionals who prepared reports used in
18conjunction with an affidavit required by this Section.
19    (f) A reviewing health professional who in good faith
20prepares a report used in conjunction with an affidavit
21required by this Section shall have civil immunity from
22liability which otherwise might result from the preparation of
23such report.
24    (g) The failure of the plaintiff to file an affidavit and
25report in compliance with this Section shall be grounds for
26dismissal under Section 2-619.

 

 

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1    (h) This Section does not apply to or affect any actions
2pending at the time of its effective date, but applies to cases
3filed on or after its effective date.
4    (i) This amendatory Act of 1997 does not apply to or affect
5any actions pending at the time of its effective date, but
6applies to cases filed on or after its effective date.
7    (j) The changes to this Section made by Public Act 94-677
8and reenacted by this amendatory Act of the 97th 94th General
9Assembly apply to causes of action accruing on or after August
1025, 2005, as those changes may be amended from time to time its
11effective date.
12(Source: P.A. 94-677, eff. 8-25-05.)
 
13    (735 ILCS 5/2-1303)  (from Ch. 110, par. 2-1303)
14    Sec. 2-1303. Interest on judgment.
15    (a) Judgments recovered in any court shall draw interest at
16the rate that is equal to the rate at issuance on the 10-year
17United States Treasury Notes most recently issued prior to of
189% per annum from the date of the judgment until satisfied or
191% 6% per annum when the judgment debtor is a unit of local
20government, as defined in Section 1 of Article VII of the
21Constitution, a school district, a community college district,
22or any other governmental entity. When judgment is entered upon
23any award, report or verdict, interest shall be computed at the
24above rate, from the time when made or rendered to the time of
25entering judgment upon the same, and included in the judgment,

 

 

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1except as provided in subsection (b) of this Section. Interest
2shall be computed and charged only on the unsatisfied portion
3of the judgment as it exists from time to time. The judgment
4debtor may by tender of payment of judgment, costs and interest
5accrued to the date of tender, stop the further accrual of
6interest on such judgment notwithstanding the prosecution of an
7appeal, or other steps to reverse, vacate or modify the
8judgment.
9    (b) In cases where a federal Medicare lien may exist
10against the judgment, this statutory interest shall be computed
11from the day after the federal Medicare program provides
12confirmation of any lien against the judgment.
13(Source: P.A. 85-907.)
 
14    (735 ILCS 5/2-1704.5)
15    Sec. 2-1704.5. Guaranteed payment of future medical
16expenses and costs of life care.
17    (a) At any time, but no later than 5 days after a verdict
18in the plaintiff's favor for a plaintiff's future medical
19expenses and costs of life care is reached, either party in a
20medical malpractice action may elect, or the court may enter an
21order, to have the payment of the plaintiff's future medical
22expenses and costs of life care made under this Section.
23    (b) In all cases in which a defendant in a medical
24malpractice action is found liable for the plaintiff's future
25medical expenses and costs of care, the trier of fact shall

 

 

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1make the following findings based on evidence presented at
2trial:
3        (1) the present cash value of the plaintiff's future
4    medical expenses and costs of life care;
5        (2) the current year annual cost of the plaintiff's
6    future medical expenses and costs of life care; and
7        (3) the annual composite rate of inflation that should
8    be applied to the costs specified in item (2).
9    Based upon evidence presented at trial, the trier of fact
10may also vary the amount of future costs under this Section
11from year to year to account for different annual expenditures,
12including the immediate medical and life care needs of the
13plaintiff. The jury shall not be informed of an election to pay
14for future medical expenses and costs of life care by
15purchasing an annuity.
16    (c) When an election is made to pay for future medical
17expenses and costs of life care by purchasing an annuity, the
18court shall enter a judgment ordering that the defendant pay
19the plaintiff an amount equal to 20% of the present cash value
20of future medical expenses and cost of life care determined
21under subsection (b)(1) of this Section and ordering that the
22remaining future expenses and costs be paid by the purchase of
23an annuity by or on behalf of the defendant from a company that
24has itself, or is irrevocably supported financially by a
25company that has, at least 2 of the following 4 ratings: "A+ X"
26or higher from A.M. Best Company; "AA-" or higher from Standard &

 

 

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1 Poor's; "Aa3" or higher from Moody's; and "AA-" or higher
2from Fitch. The annuity must guarantee that the plaintiff will
3receive annual payments equal to 80% of the amount determined
4in subsection (b)(2) inflated by the rate determined in
5subsection (b)(3) for the life of the plaintiff.
6    (d) If the company providing the annuity becomes unable to
7pay amounts required by the annuity, the defendant shall secure
8a replacement annuity for the remainder of the plaintiff's life
9from a company that satisfies the requirements of subsection
10(c).
11    (e) A plaintiff receiving future payments by means of an
12annuity under this Section may seek leave of court to assign or
13otherwise transfer the right to receive such payments in
14exchange for a negotiated lump sum value of the remaining
15future payments or any portion of the remaining future payments
16under the annuity to address an unanticipated financial
17hardship under such terms as approved by the court.
18    (f) This Section applies to all causes of action accruing
19on or after August 25, 2005 the effective date of this
20amendatory Act of the 94th General Assembly.
21(Source: P.A. 94-677, eff. 8-25-05.)
 
22    (735 ILCS 5/8-1901)  (from Ch. 110, par. 8-1901)
23    Sec. 8-1901. Admission of liability - Effect.
24    (a) The providing of, or payment for, medical, surgical,
25hospital, or rehabilitation services, facilities, or equipment

 

 

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1by or on behalf of any person, or the offer to provide, or pay
2for, any one or more of the foregoing, shall not be construed
3as an admission of any liability by such person or persons.
4Testimony, writings, records, reports or information with
5respect to the foregoing shall not be admissible in evidence as
6an admission of any liability in any action of any kind in any
7court or before any commission, administrative agency, or other
8tribunal in this State, except at the instance of the person or
9persons so making any such provision, payment or offer.
10    (b) Any expression of grief, apology, or explanation
11provided by a health care provider, including, but not limited
12to, a statement that the health care provider is "sorry" for
13the outcome to a patient, the patient's family, or the
14patient's legal representative about an inadequate or
15unanticipated treatment or care outcome that is provided within
1672 hours of when the provider knew or should have known of the
17potential cause of such outcome shall not be admissible as
18evidence in any action of any kind in any court or before any
19tribunal, board, agency, or person. The disclosure of any such
20information, whether proper, or improper, shall not waive or
21have any effect upon its confidentiality or inadmissibility. As
22used in this Section, a "health care provider" is any hospital,
23nursing home or other facility, or employee or agent thereof, a
24physician, or other licensed health care professional. Nothing
25in this Section precludes the discovery or admissibility of any
26other facts regarding the patient's treatment or outcome as

 

 

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1otherwise permitted by law.
2    (c) The changes to this Section made by Public Act 94-677
3and reenacted by this amendatory Act of the 97th 94th General
4Assembly apply to causes of action accruing on or after August
525, 2005, as those changes may be amended from time to time its
6effective date.
7(Source: P.A. 94-677, eff. 8-25-05.)
 
8    (735 ILCS 5/8-2501)  (from Ch. 110, par. 8-2501)
9    Sec. 8-2501. Expert Witness Standards. In any case in which
10the standard of care applicable to a medical professional is at
11issue, the court shall apply the following standards to
12determine if a witness qualifies as an expert witness and can
13testify on the issue of the appropriate standard of care.
14    (a) Whether the witness is board certified or board
15eligible, or has completed a residency, in the same or
16substantially similar medical specialties as the defendant and
17is otherwise qualified by significant experience with the
18standard of care, methods, procedures, and treatments relevant
19to the allegations against the defendant;
20    (b) Whether the witness has devoted a majority of his or
21her work time to the practice of medicine, teaching or
22University based research in relation to the medical care and
23type of treatment at issue which gave rise to the medical
24problem of which the plaintiff complains;
25    (c) whether the witness is licensed in the same profession

 

 

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1with the same class of license as the defendant if the
2defendant is an individual; and
3    (d) whether, in the case against a nonspecialist, the
4witness can demonstrate a sufficient familiarity with the
5standard of care practiced in this State.
6    An expert shall provide evidence of active practice,
7teaching, or engaging in university-based research. If
8retired, an expert must provide evidence of attendance and
9completion of continuing education courses for 3 years previous
10to giving testimony. An expert who has not actively practiced,
11taught, or been engaged in university-based research, or any
12combination thereof, during the preceding 5 years may not be
13qualified as an expert witness.
14    The changes to this Section made by Public Act 94-677 and
15reenacted by this amendatory Act of the 97th 94th General
16Assembly apply to causes of action accruing on or after August
1725, 2005, as those changes may be amended from time to time its
18effective date.
19(Source: P.A. 94-677, eff. 8-25-05.)
 
20    Section 10. The Good Samaritan Act is amended by reenacting
21and changing Section 30 as follows:
 
22    (745 ILCS 49/30)
23    Sec. 30. Free medical clinic; exemption from civil
24liability for services performed without compensation.

 

 

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1    (a) A person licensed under the Medical Practice Act of
21987, a person licensed to practice the treatment of human
3ailments in any other state or territory of the United States,
4or a health care professional, including but not limited to an
5advanced practice nurse, retired physician, physician
6assistant, nurse, pharmacist, physical therapist, podiatrist,
7or social worker licensed in this State or any other state or
8territory of the United States, who, in good faith, provides
9medical treatment, diagnosis, or advice as a part of the
10services of an established free medical clinic providing care,
11including but not limited to home visits, without charge to
12patients which is limited to care that does not require the
13services of a licensed hospital or ambulatory surgical
14treatment center and who receives no fee or compensation from
15that source shall not be liable for civil damages as a result
16of his or her acts or omissions in providing that medical
17treatment, except for willful or wanton misconduct.
18    (b) For purposes of this Section, a "free medical clinic"
19is an organized community based program providing medical care
20without charge to individuals, at which the care provided does
21not include an overnight stay in a health-care facility.
22    (c) The provisions of subsection (a) of this Section do not
23apply to a particular case unless the free medical clinic has
24posted in a conspicuous place on its premises an explanation of
25the exemption from civil liability provided herein.
26    (d) The immunity from civil damages provided under

 

 

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1subsection (a) also applies to physicians, retired physicians,
2hospitals, and other health care providers that provide further
3medical treatment, diagnosis, or advice, including but not
4limited to hospitalization, office visits, and home visits, to
5a patient upon referral from an established free medical clinic
6without fee or compensation.
7    (d-5) A free medical clinic may receive reimbursement from
8the Illinois Department of Public Aid, provided any
9reimbursements shall be used only to pay overhead expenses of
10operating the free medical clinic and may not be used, in whole
11or in part, to provide a fee or other compensation to any
12person licensed under the Medical Practice Act of 1987 or any
13other health care professional who is receiving an exemption
14under this Section. Any health care professional receiving an
15exemption under this Section may not receive any fee or other
16compensation in connection with any services provided to, or
17any ownership interest in, the clinic. Medical care shall not
18include an overnight stay in a health care facility.
19    (e) Nothing in this Section prohibits a free medical clinic
20from accepting voluntary contributions for medical services
21provided to a patient who has acknowledged his or her ability
22and willingness to pay a portion of the value of the medical
23services provided.
24    (f) Any voluntary contribution collected for providing
25care at a free medical clinic shall be used only to pay
26overhead expenses of operating the clinic. No portion of any

 

 

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1moneys collected shall be used to provide a fee or other
2compensation to any person licensed under Medical Practice Act
3of 1987.
4    (g) The changes to this Section made by Public Act 94-677
5and reenacted by this amendatory Act of the 97th 94th General
6Assembly apply to causes of action accruing on or after August
725, 2005, as those changes may be amended from time to time its
8effective date.
9(Source: P.A. 94-677, eff. 8-25-05.)
 
10    Section 97. Inseverability. The provisions of this Act are
11mutually dependent and inseverable. If any provision is held
12invalid, then this entire Act, including all new and amendatory
13provisions, is invalid.
 
14    Section 99. Effective date. This Act takes effect upon
15becoming law.