Full Text of SB2382 99th General Assembly
SB2382 99TH GENERAL ASSEMBLY |
| | 99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016 SB2382 Introduced 2/3/2016, by Sen. Jason A. Barickman SYNOPSIS AS INTRODUCED: |
| 55 ILCS 5/4-11001 | from Ch. 34, par. 4-11001 | 735 ILCS 5/2-622 | from Ch. 110, par. 2-622 | 735 ILCS 5/2-1105 | from Ch. 110, par. 2-1105 | 735 ILCS 5/2-1205 | from Ch. 110, par. 2-1205 | 735 ILCS 5/2-1205.1 | from Ch. 110, par. 2-1205.1 | 735 ILCS 5/2-1303 | from Ch. 110, par. 2-1303 | 735 ILCS 5/8-1901 | from Ch. 110, par. 8-1901 | 735 ILCS 5/Art. VII Pt. 29 heading new | | 735 ILCS 5/8-2901 new | |
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Amends the Counties Code and the Code of Civil Procedure to reverse the changes made by Public Act 98-1132 concerning jury compensation and composition. Further amends the Code of Civil Procedure. Makes changes in Sections concerning: the filing of affidavits in medical malpractice cases attesting to the merits of the cause of action; reductions in the amount of recovery; interest on judgments; and admissions of liability and expressions of sympathy. Adds provisions concerning the use of federal law pay or guidelines in medical malpractice and medical product liability cases. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Counties Code is amended by changing Section | 5 | | 4-11001 as follows:
| 6 | | (55 ILCS 5/4-11001) (from Ch. 34, par. 4-11001)
| 7 | | Sec. 4-11001. Juror fees. Each county
shall pay to grand | 8 | | and petit jurors for their services
in attending courts the sum | 9 | | of $4 sums of $25 for the first day and thereafter $50 for each | 10 | | day of necessary attendance at
such courts as jurors in | 11 | | counties of the first class, the sum of $5 for
each day in | 12 | | counties of the second class, and the sum of $10 for each
day | 13 | | in counties of the third class , or such higher amount as may be | 14 | | fixed by
the county board.
| 15 | | In addition, jurors shall receive such travel expense as
| 16 | | may be determined by the county board, provided that jurors in
| 17 | | counties of the first class and second class shall receive at
| 18 | | least 10 cents per mile for their travel expense.
Mileage shall | 19 | | be allowed for travel during a juror's term as well as for
| 20 | | travel at the opening and closing of his or her term. | 21 | | If a judge so orders, a juror
shall also receive | 22 | | reimbursement for the actual cost of day care incurred by
the | 23 | | juror during his or her service on a jury.
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| 1 | | The juror fees for service , transportation, and day care | 2 | | shall be paid out
of the county treasury.
| 3 | | The clerk of the court shall
furnish to each juror without | 4 | | fee whenever he is discharged a certificate
of the number of | 5 | | days' attendance at court, and upon presentation thereof
to the | 6 | | county treasurer, he shall pay to the juror the sum
provided | 7 | | for his service.
| 8 | | Any juror may elect to waive the fee paid for service, | 9 | | transportation, or day care, or any combination thereof. | 10 | | (Source: P.A. 97-840, eff. 1-1-13; 98-1132, eff. 6-1-15 .)
| 11 | | Section 10. The Code of Civil Procedure is amended by | 12 | | changing Sections 2-622, 2-1105, 2-1205, 2-1205.1, 2-1303, | 13 | | 8-1901, and 8-2501, by re-enacting by adding Part 29 to Article | 14 | | VIII as follows:
| 15 | | (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
| 16 | | Sec. 2-622. Healing art malpractice.
| 17 | | (a) In any action, whether in
tort, contract or otherwise, | 18 | | in which the plaintiff seeks damages for
injuries or death by | 19 | | reason of medical, hospital, or other healing art
malpractice, | 20 | | the plaintiff's attorney or the plaintiff, if the plaintiff is
| 21 | | proceeding pro se, shall file an affidavit, attached to the | 22 | | original and
all copies of the complaint, declaring that one of | 23 | | the following:
1. That the affiant has consulted and reviewed | 24 | | the facts of the case
with a health professional who the |
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| 1 | | affiant reasonably believes: (i) is
knowledgeable in the | 2 | | relevant issues involved in the particular action;
(ii) | 3 | | practices or has practiced within the last
6 years or teaches | 4 | | or
has taught within the last
6 years in the same area of | 5 | | health care or
medicine that is at issue in the particular | 6 | | action; and (iii)
is qualified
by experience or demonstrated | 7 | | competence in the subject of the case; that
the reviewing | 8 | | health professional has determined in a
written report, after a | 9 | | review of the medical record and other relevant
material | 10 | | involved in the particular action that there is a reasonable | 11 | | and
meritorious cause for the filing of such action; and that | 12 | | the affiant has
concluded on the basis of the reviewing health | 13 | | professional's review and
consultation that there is a | 14 | | reasonable and meritorious cause for filing of
such action.
If | 15 | | the affidavit is filed as to a defendant who is a physician
| 16 | | licensed to treat human ailments without the use of drugs or | 17 | | medicines and
without operative surgery, a dentist, a podiatric | 18 | | physician, a psychologist, or a
naprapath,
the written report | 19 | | must be from a health professional
licensed in the same | 20 | | profession, with the same class of license, as the
defendant. | 21 | | For
affidavits filed as to all other defendants, the written
| 22 | | report must be from a physician licensed to practice medicine | 23 | | in all its
branches. In either event, the
affidavit must | 24 | | identify the profession of
the reviewing health professional. A | 25 | | copy of the written report, clearly
identifying the plaintiff | 26 | | and the reasons for the reviewing health
professional's |
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| 1 | | determination that a reasonable and meritorious cause for
the | 2 | | filing of the action exists, must be attached to the affidavit, | 3 | | but
information which would identify the reviewing health | 4 | | professional may be
deleted from the copy so attached.
| 5 | | 2.
That the affiant was unable to obtain a consultation | 6 | | required by
paragraph 1 because a statute of limitations | 7 | | would impair the action and
the consultation required could | 8 | | not be obtained before the expiration of
the statute of | 9 | | limitations. If an affidavit is executed pursuant to this
| 10 | | paragraph, the
certificate and written report required by | 11 | | paragraph 1 shall
be filed within 90 days after the filing | 12 | | of the complaint. The defendant
shall be excused from | 13 | | answering or otherwise pleading until 30 days after
being | 14 | | served with
a certificate
required by paragraph 1.
| 15 | | 3.
That a request has been made by the plaintiff or his | 16 | | attorney for
examination and copying of records pursuant to | 17 | | Part 20 of Article VIII of
this Code and the party required | 18 | | to comply under those Sections has failed
to produce such | 19 | | records within 60 days of the receipt of the request. If an
| 20 | | affidavit is executed pursuant to this paragraph, the
| 21 | | certificate and
written report required by paragraph 1 | 22 | | shall be filed within 90 days
following receipt of the | 23 | | requested records. All defendants except those
whose | 24 | | failure to comply with Part 20 of Article VIII of this Code | 25 | | is the
basis for an affidavit under this paragraph shall be | 26 | | excused from answering
or otherwise pleading until 30 days |
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| 1 | | after being served with the
certificate
required by | 2 | | paragraph 1.
| 3 | | (b)
Where
a certificate and written report are required | 4 | | pursuant to this
Section a separate
certificate and written | 5 | | report shall be filed as to each
defendant who has been named | 6 | | in the complaint and shall be filed as to each
defendant named | 7 | | at a later time.
| 8 | | (c)
Where the plaintiff intends to rely on the doctrine of | 9 | | "res ipsa
loquitur", as defined by Section 2-1113 of this Code, | 10 | | the
certificate and
written report must state that, in the | 11 | | opinion of the reviewing health
professional, negligence has | 12 | | occurred in the course of medical treatment.
The affiant shall | 13 | | certify upon filing of the complaint that he is relying
on the | 14 | | doctrine of "res ipsa loquitur".
| 15 | | (d)
When the attorney intends to rely on the doctrine of | 16 | | failure to
inform of the consequences of the procedure, the | 17 | | attorney shall certify
upon the filing of the complaint that | 18 | | the reviewing health professional
has, after reviewing the | 19 | | medical record and other relevant materials involved
in the | 20 | | particular action, concluded that a reasonable health | 21 | | professional
would have informed the patient of the | 22 | | consequences of the procedure.
| 23 | | (e)
Allegations and denials in the affidavit, made without | 24 | | reasonable
cause and found to be untrue, shall subject the | 25 | | party pleading them or his
attorney, or both, to the payment of | 26 | | reasonable expenses, actually incurred
by the other party by |
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| 1 | | reason of the untrue pleading, together with
reasonable | 2 | | attorneys' fees to be summarily taxed by the court upon motion
| 3 | | made within 30 days of the judgment or dismissal. In no event | 4 | | shall the
award for attorneys' fees and expenses exceed those | 5 | | actually paid by the
moving party, including the insurer, if | 6 | | any. In proceedings under this
paragraph (e), the moving party | 7 | | shall have the right to depose and examine
any and all | 8 | | reviewing health professionals who prepared reports used in
| 9 | | conjunction with an affidavit required by this Section. | 10 | | (f)
A reviewing health professional who in good faith | 11 | | prepares a report
used in conjunction with an affidavit | 12 | | required by this Section shall have
civil immunity from | 13 | | liability which otherwise might result from the
preparation of | 14 | | such report.
| 15 | | (g)
The failure
to file a certificate required by
this | 16 | | Section shall result in be
grounds for dismissal
under Section | 17 | | 2-619.
| 18 | | (h) (Blank).
| 19 | | (i) (Blank).
| 20 | | (Source: P.A. 97-1145, eff. 1-18-13; 98-214, eff. 8-9-13.)
| 21 | | (735 ILCS 5/2-1105) (from Ch. 110, par. 2-1105)
| 22 | | Sec. 2-1105. Jury demand. | 23 | | (a) A plaintiff desirous of a trial by jury must file
a | 24 | | demand therefor with the clerk at the time the action is | 25 | | commenced. A
defendant desirous of a trial by jury must file a |
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| 1 | | demand therefor not
later than the filing of his or her answer. | 2 | | Otherwise, the party waives a
jury. If an action is filed | 3 | | seeking equitable relief and the court
thereafter determines | 4 | | that one or more of the parties is or are entitled
to a trial by | 5 | | jury, the plaintiff, within 3 days from the entry of such
order | 6 | | by the court, or the defendant, within 6 days from the entry of
| 7 | | such order by the court, may file his or her demand for trial | 8 | | by jury with the
clerk of the court. If the plaintiff files a | 9 | | jury demand and thereafter
waives a jury, any defendant and, in | 10 | | the case of multiple defendants, if
the defendant who filed a | 11 | | jury demand thereafter waives a jury, any
other defendant shall | 12 | | be granted a jury trial upon demand therefor made
promptly | 13 | | after being advised of the waiver and upon payment of the
| 14 | | proper fees, if any, to the clerk.
| 15 | | (b) All jury cases where the claim for damages is $50,000 | 16 | | or less shall be tried by a jury of 6 , unless either party | 17 | | demands a
jury of 12. If a fee in connection with a jury demand | 18 | | is required by
statute or rule of court, the fee for a jury of 6 | 19 | | shall be 1/2 the
fee for a jury of 12. A party demanding a jury | 20 | | of 12 after another party
has paid the applicable fee for a | 21 | | jury of 6 shall pay the remaining
1/2 of the fee applicable to | 22 | | a jury of 12 . If alternate jurors are requested, an additional | 23 | | fee established by the county shall be charged for each | 24 | | alternate juror requested. For all cases filed prior to the | 25 | | effective date of this amendatory Act of the 98th General | 26 | | Assembly, if a party has paid for a jury of 12, that party may |
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| 1 | | demand a jury of 12 upon proof of payment.
| 2 | | (Source: P.A. 98-1132, eff. 6-1-15 .)
| 3 | | (735 ILCS 5/2-1205) (from Ch. 110, par. 2-1205)
| 4 | | Sec. 2-1205. Reduction in amount of recovery. | 5 | | (a) An amount
equal to the sum of (i) 50% of the benefits | 6 | | provided for lost wages
or private or governmental disability | 7 | | income programs, which
have been paid, or which have become | 8 | | payable to the injured person by any
other person, corporation, | 9 | | insurance company or fund in relation to a
particular injury, | 10 | | and (ii) 100% of the benefits provided for medical
charges, | 11 | | hospital charges, or nursing or caretaking charges, which have | 12 | | been
paid, or which have become payable to the injured person | 13 | | by any other
person, corporation, insurance company or fund in | 14 | | relation to a particular
injury, shall be deducted from any | 15 | | judgment in an action to
recover for that injury based on an | 16 | | allegation of negligence or other
wrongful act, not including | 17 | | intentional torts, on the part of a licensed
hospital or | 18 | | physician; provided, however, that:
| 19 | | (1) Application is made within 30 days to reduce the | 20 | | judgment;
| 21 | | (2) Such reduction shall not apply to the extent that | 22 | | there is a
right of recoupment through subrogation, trust | 23 | | agreement, lien, or otherwise;
| 24 | | (3) The reduction shall not reduce the judgment by more | 25 | | than 50% of
the total amount of the judgment entered on the |
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| 1 | | verdict;
| 2 | | (4) The damages awarded shall be increased by the | 3 | | amount of any
insurance premiums or the direct costs paid | 4 | | by the plaintiff for such
benefits in the 2 years prior to | 5 | | plaintiff's injury or death or to be paid
by the plaintiff | 6 | | in the future for such benefits; and
| 7 | | (5) There shall be no reduction for charges paid for | 8 | | medical expenses
which were directly attributable to the | 9 | | adjudged negligent acts or
omissions of the defendants | 10 | | found liable.
| 11 | | (b) In any proceedings to which this Section applies, the | 12 | | actual amount paid for health care services or to be paid under | 13 | | any health care services insurance or benefit program shall be | 14 | | used to determine the amount of the services and not the billed | 15 | | charges. Nothing is this Code shall be construed to prevent, | 16 | | and the court shall allow, the introduction of evidence of the | 17 | | amount paid by an affidavit or testimony of actual payment | 18 | | received. | 19 | | (Source: P.A. 84-7.)
| 20 | | (735 ILCS 5/2-1205.1) (from Ch. 110, par. 2-1205.1)
| 21 | | (Text of Section WITHOUT the changes made by P.A. 89-7, | 22 | | which has been held
unconstitutional)
| 23 | | Sec. 2-1205.1. Reduction in amount of recovery. | 24 | | (a) In all cases
on account of bodily injury or death or | 25 | | physical damage to property, based
on negligence, or product |
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| 1 | | liability based on
strict tort liability,
to which Section | 2 | | 2-1205 does not apply, the amount in excess of $25,000 of the
| 3 | | benefits provided for medical
charges, hospital charges, or | 4 | | nursing or caretaking charges, which have been
paid, or which | 5 | | have become payable by the date of judgment to the injured
| 6 | | person by any other
insurance company or fund in relation to a | 7 | | particular
injury, shall be deducted from any judgment.
| 8 | | Provided, however, that:
| 9 | | (1) Application is made within 30 days to reduce the | 10 | | judgment;
| 11 | | (2) Such reduction shall not apply to the extent that | 12 | | there is a
right of recoupment through subrogation, trust | 13 | | agreement, contract, lien,
operation of law or otherwise;
| 14 | | (3) The reduction shall not reduce the judgment by more | 15 | | than 50% of
the total amount of the judgment entered on the | 16 | | verdict; and
| 17 | | (4) The damages awarded shall be increased by the | 18 | | amount of any
insurance premiums or the direct costs paid | 19 | | by the plaintiff for such
benefits in the 2 years prior to | 20 | | plaintiff's injury or death or to be paid
by the plaintiff | 21 | | in the future for such benefits.
| 22 | | (b) In any proceedings to which this Section applies, the | 23 | | actual amount paid for health care services or to be paid under | 24 | | any health care services insurance or benefit program shall be | 25 | | used to determine the amount of the services and not the billed | 26 | | charges. Nothing is this Code shall be construed to prevent, |
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| 1 | | and the court shall allow, the introduction of evidence of the | 2 | | amount paid by an affidavit or testimony of actual payment | 3 | | received. | 4 | | (Source: P.A. 84-1431.)
| 5 | | (735 ILCS 5/2-1303) (from Ch. 110, par. 2-1303)
| 6 | | Sec. 2-1303. Interest on judgment. | 7 | | (a) Judgments recovered in
any court shall draw interest , | 8 | | at the rate that is equal to the rate at issuance on the | 9 | | 10-year United States Treasury Note most recently issued prior | 10 | | to of 9% per annum from the date
of the judgment , until | 11 | | satisfied , provided that: | 12 | | (1) if the rate on the 10-year United States Treasury | 13 | | Note is less than 3%, then the judgment shall draw interest | 14 | | at the rate of 3% per annum; | 15 | | (2) if the rate on the 10-year United States Treasury | 16 | | Note is more than 6%, then the judgment shall draw interest | 17 | | at the rate of 6% per annum; and | 18 | | (3) if or 6% per annum when the judgment debtor is a | 19 | | unit
of local government, as defined in Section 1 of | 20 | | Article VII of the Constitution,
a school district, a | 21 | | community college district, or any other governmental
| 22 | | entity , then the judgment shall draw interest at the rate | 23 | | of 1% per annum . | 24 | | Except as provided in subsection (b) of this Section, when | 25 | | When judgment is entered upon any award, report or verdict, |
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| 1 | | interest
shall be computed at the above rate, from the time | 2 | | when made or rendered
to the time of entering judgment upon the | 3 | | same, and included in the judgment.
Interest shall be computed | 4 | | and charged only on the unsatisfied portion of
the judgment as | 5 | | it exists from time to time. The judgment debtor may by
tender | 6 | | of payment of judgment, costs and interest
accrued to the date | 7 | | of tender, stop the further accrual of interest on such
| 8 | | judgment notwithstanding the prosecution of an appeal, or other | 9 | | steps to
reverse, vacate or modify the judgment.
| 10 | | (b) In cases in which a federal Medicare right of recovery | 11 | | may exist against the judgment, interest under this Section | 12 | | shall be computed from the day after the federal Medicare | 13 | | program provides confirmation of any lien against the judgment, | 14 | | and no interest shall be paid on the Medicare right of recovery | 15 | | amount. | 16 | | (c) The changes to this Section made by this amendatory Act | 17 | | of the 99th General Assembly apply to judgments entered after | 18 | | its effective date. | 19 | | (Source: P.A. 85-907.)
| 20 | | (735 ILCS 5/8-1901) (from Ch. 110, par. 8-1901)
| 21 | | Sec. 8-1901. Admission of liability - Effect. | 22 | | (a) The providing of, or payment
for, medical, surgical,
| 23 | | hospital, or rehabilitation services, facilities, or equipment | 24 | | by or on
behalf of any person, or the offer to provide, or pay | 25 | | for, any one or
more of the foregoing, shall not be construed |
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| 1 | | as an admission of any
liability by such person or persons. | 2 | | Testimony, writings, records,
reports or information with | 3 | | respect to the foregoing shall not be
admissible in evidence as | 4 | | an admission of any liability in any action of
any kind in any | 5 | | court or before any commission, administrative agency,
or other | 6 | | tribunal in this State, except at the instance of the person or
| 7 | | persons so making any such provision, payment or offer.
| 8 | | (b) Any expression of grief, apology, or explanation | 9 | | provided by a health care provider, including, but not limited | 10 | | to, a statement that the health care provider is "sorry" for | 11 | | the outcome to a patient, the patient's family, or the | 12 | | patient's legal representative about an inadequate or | 13 | | unanticipated treatment or care outcome shall not be admissible | 14 | | as evidence in any action of any kind in any court or before | 15 | | any tribunal, board, agency, or person. The disclosure of any | 16 | | such information, whether proper or improper, shall not waive | 17 | | or have any effect upon its confidentiality or inadmissibility. | 18 | | As used in this Section, a "health care provider" means any | 19 | | hospital, nursing home or other facility, or employee or agent | 20 | | thereof, physician, or other licensed health care | 21 | | professional. Nothing in this Section precludes the discovery | 22 | | or admissibility of any other facts regarding the patient's | 23 | | treatment or outcome as otherwise permitted by law.
| 24 | | (c) The changes to this Section made by this amendatory Act | 25 | | of the 99th General Assembly apply to causes of action accruing | 26 | | on or after its effective date. |
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| 1 | | (Source: P.A. 97-1145, eff. 1-18-13.) | 2 | | (735 ILCS 5/Art. VII Pt. 29 heading new) | 3 | | PART 29. FEDERAL PAYOR GUIDELINES | 4 | | (735 ILCS 5/8-2901 new) | 5 | | Sec. 8-2901. Federal payor guidelines. | 6 | | (a) As used in this Section: | 7 | | (1) "Criteria" means criteria relating to | 8 | | administrative procedures and does not include criteria | 9 | | relating to medical treatment, quality of care, or best | 10 | | practices. | 11 | | (2) "Guideline" means a guideline relating to | 12 | | administrative procedures and does not include guidelines | 13 | | relating to medical treatment, quality of care, or best | 14 | | practices. | 15 | | (3) "Payor" means any insurer, health maintenance | 16 | | organization, self-insurance plan, or other person or | 17 | | entity which provides, offers to provide, or administers | 18 | | hospital, outpatient, medical, or other health care | 19 | | benefits to persons treated by a health care provider in | 20 | | this State pursuant to any policy, plan, or contract of | 21 | | accident and health insurance. | 22 | | (4) "Standard" means a standard relating to | 23 | | administrative procedures and does not include standards | 24 | | relating to medical treatment, quality of care, or best |
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| 1 | | practices. | 2 | | (b) The development, recognition, or implementation of any | 3 | | guideline by any public or private payor or the establishment | 4 | | of any payment standard or reimbursement criteria under any | 5 | | federal laws or regulations related to health care shall not be | 6 | | construed, without competent expert testimony establishing the | 7 | | appropriate standard of care, to establish a legal basis for | 8 | | negligence or the standard of care or duty of care owed by a | 9 | | health care provider to a patient in any civil action for | 10 | | medical malpractice or medical product liability. Compliance | 11 | | with such a guideline, standard, or criteria shall not be used | 12 | | to establish a health care provider's compliance with the | 13 | | standard of care or duty of care owed by a health care provider | 14 | | to a patient in any civil action for medical malpractice or | 15 | | medical product liability without competent expert testimony | 16 | | establishing the appropriate standard of care.
| 17 | | Section 99. Effective date. This Act takes effect upon | 18 | | becoming law.
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