Attorneys: Guolee, Terrence F.
On November 13, 2007, Judge Diane Larsen of the Circuit Court of Cook County Law Division ruled on various consolidated motions challenging the constitutionality of Public Act 94-677, enacted August 25, 2005, which limited damages and provided other tort reforms in medical malpractice cases. LeBron et al. v. Gottlieb Memorial Hospital et al, Case No. 2006 L 12109 (decided November 13, 2007.) Direct appeal to the Illinois Supreme Court is expected.
The case came before Judge Larsen pursuant to an order entered on March 27, 2007, by William D. Maddux, Presiding Judge of the Cook County Circuit Court Law Division, designating the case as the "lead case" amongst all cases challenging the constitutionality of Public Act 94-677 ("the Act") and consolidating all related motions before the court. After the consolidation order was entered, the court published in the Chicago Daily Law Bulletin a notice of the consolidation order and various status dates, and counsel from many related cases attended the status hearings.
Following extensive briefing, on September 17, 2007, the court heard approximately two hours of oral argument on the related motions. In summary, in their briefing and argument, plaintiff counsel sought a declaratory judgment that the following statutory provisions were unconstitutional:
735 ILCS 5/2-1706.5 (§ 2-1706.5), which caps non-economic damages;
735 ILCS 512-1704.5 (§ 2-1704.5), which permits periodic payments;
735 ILCS 5/8-2501 (§ 8-2501), which restricts eligible expert testimony that a plaintiff may proffer;
735 ILCS 512-622 (§ 2-622), which requires a certificate of merit to initiate a medical malpractice lawsuit;
735 ILCS 5/8-1901 (§ 8-1901), which establishes an evidentiary rule regulating admissibility of a health care provider's admission of liability; and,
Public Act 94-677 as a whole on the ground that the invalid portions of the Act are "inseverable" from the remainder of the Act.
In particular, plaintiffs claimed that the caps on noneconomic damages invade exclusive and inherent judicial authority by enacting a legislative remittitur (damage reduction) and, thus, violate separation of powers, citing Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), and amount to an impermissible form of special legislation, citing Best, 179 Ill. 2d at 408, and Wright v. Central DuPage Hospital Association, 63 Ill. 2d 313 (1976).
Plaintiffs further claimed that the caps on noneconomic damages violate the right to trial by jury, due process, equal protection, and the right to a remedy, and made the same arguments regarding the periodic payment provision, as well as claiming that the provision constitutes a "taking without just compensation" in violation of Article I, § 15 of the Illinois Constitution.
Likewise, plaintiffs claimed that the restrictions on expert witnesses violate the Illinois Constitution's prohibition against special legislation, as well as the due process and equal protection guarantees.
As to the certificate of merit required for medical malpractice claims, plaintiffs also argued the amendments violated separation of powers, due process and equal protection guarantees, and constitute special legislation. Finally, as to the evidentiary rule contained in § 8-1901, a limitation on the admissibility of certain statements by health care providers, plaintiffs alleged a violation of the Illinois Constitution's prohibition against special legislation and also a violation of due process guarantees.
In response, the defendants asserted that that the Wright and Best cases, which struck down earlier attempts at tort reform in Illinois, are distinguishable from the current legislation and, therefore, do not compel a finding that the amendments are unconstitutional. Instead, defendants maintained that the contested provisions of the Act were constitutional for the following reasons:
Section 2-1706.5 of the Act adopts reasonable limits on non-economic damages in malpractice cases, which numerous studies considered by the legislature have demonstrated are effective in reducing insurance premiums. See 735 ILCS 5/2-1706.5;
Section 2-1704.5 of the Act expands Illinois' periodic payment provisions, which reduce costs by allowing a judgment debtor to purchase an annuity to pay for future medical expenses, while ensuring a plaintiff has access to medical funds when needed. See 735 ILCS 5/2- 1704.5;
Section 8-2501 of the Act strengthens the standards for expert witnesses in malpractice cases to ensure that witnesses who testify about the medical standard of care are actually qualified to do so. See 735 ILCS 5/8-2501;
Section 2-622 of the Act amends the provision requiring malpractice plaintiffs to submit reports from medical professionals in order to ban anonymous reports, which ensures accountability and discourages frivolous claims. See 735 ILCS 5/2-622; and
Section 8-1901 of the Act seeks to avoid unnecessary litigation by encouraging health care providers to acknowledge their mistakes promptly and offer fair settlements See 735 ILCS 5/8-1901.
In reviewing these arguments, Judge Larsen noted the Illinois Supreme Court's statement from the Best decision, stating: "[t]he problems addressed in the briefs and in oral arguments in the case at bar represent some of the most critical concerns which confront our society today." Citing Best, 179 Ill. 2d at 471. The court then granted plaintiffs' motions, finding that § 2-1706.5, the cap on non-economic damages in medical malpractice claims, violates the Separation of Powers Clause of the Illinois Constitution (Illinois Const. 1970, art. II, § 1). Next, the court held that because of the "inseverability" provision at § 995 of the Act, her decision striking § 2-1706.5 acts to invalidate the Act in its entirety.
Based on this, following discussing that the respective plaintiffs alleged catastrophic injury and damage claims, such that they had standing to challenge the tort reform provisions of the Act, the court refrained from reaching any of the other challenged provisions, finding that "those issues are not necessary to the court's substantive judgment." Indeed, Judge Larsen determined that to go further and rule on the other contested provisions of the Act would amount to a prohibited "advisory" opinion.
Of note, Judge Larsen discussed in her opinion that she felt compelled to strike the Act based on stare decisis and adherence to the Illinois Supreme Court's decision in Best that held a compensatory damages cap of section 2-1115.1 violated the constitutional prohibition against special legislation and also violates the separation of powers clause." Citing, Best, 179 Ill. 2d at 416. In this respect, Judge Larsen noted that:
[i]t is the judgment of this court that the holding of the Illinois Supreme Court - that a compensatory damage cap applicable in all cases violates separation of powers - is no less applicable to the present case simply because the cap at issue applies only in medical malpractice cases.
Based on this, Judge Larsen wrote the Supreme Court has determined that a cap on non-economic damages applicable in all cases operates as a prohibited legislative remittitur which
disregards the jury's careful deliberative process in determining damages that will fairly compensate injured plaintiffs who have proven their causes of action.
Citing Best, 179 Ill. 2d at 414.
Judge Larsen likewise agreed with the Illinois Supreme Court's opinion that there is no principled reason that a cap on non-economic damages applicable only in medical malpractice cases should not be considered a legislative remittitur, given the Supreme Court's holding in Best, and held that only the Illinois Supreme Court could overrule this holding.
It is expected Judge Larsen will enter an order allowing direct appeal of her order to the Illinois Supreme Court. Even should the Illinois Supreme Court reverse Judge Larsen's decision, something considered unlikely in light of the limited nature of the decision and the likelihood the Supreme Court would need to overrule it's prior decision in Best, further challenges to the remaining issues not ruled upon by Judge Larsen would be likely. Given the many cases affected by this decision, an expedited appeal process is considered likely.
In light of this decision, it now appears clear that inclusion of the "inseverability" provision at § 995 of the Act was a calculated effort to make the initial passage of the Act a worthless endeavor. In light of the Best decision, there was little hope that the entire Act would survive review, and placement of a provision voiding the entire Act if any one of the various tort reform amendments failed clearly led many at that time to believe the Act was intended not to stand. Indeed, should the Illinois Supreme Court affirm Judge Larsen's decision and reaffirm its decision in Best, in all likelihood the prospects for tort reform in Illinois are effectively "dead," short of amendment to the Illinois Constitution.