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Trial lawyers to have new ammo: “Grief and sorrow”

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Illinois

* Kevin McDermott of the Post-Dispatch has a top-notch report today on a bill that cleared the Senate and is now heading to the governor. Here are some excerpts, but you really should go read the whole thing to see just how good this story is. Pretty much every Illinois Statehouse reporter does a good job when their editors take off the shackles, and McDermott was obviously allowed to pursue several angles on this legislation…

Illinois lawmakers on Thursday passed a measure that lets jurors consider the grief and sorrow of survivors when deciding payouts in wrongful death lawsuits — a move that promises to reopen political wounds from the state’s medical malpractice battle of two years ago. […]

llinois now allows jurors to consider several factors when deciding how much to award plaintiffs who prevail in wrongful death suits. Factors include actual damages such as loss of income, as well as “noneconomic'’ damages such as the loss of love, comfort and other intangibles by the survivor-plaintiffs.

The new legislation would add heartache to that list of intangibles, allowing jurors to consider “damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.'’ […]

Opponents say the change could prompt juries to go right up to the top award limits in more cases — and could lead to a rash of astronomical awards if those limits are eventually removed by the courts.

* More from the Daily Herald…

During debate over the proposal, which narrowly passed the Senate 31-23, Raoul and other lawmakers brought up a 2001 Illinois law, under which people could collect damages for mental suffering over the wrongful death of a pet.

“That’s ridiculous, and that’s hypocrisy,” Raoul said regarding a lack of similar treatment for humans. “We can get grief and sorrow for cats and dogs, but not people?”

The Illinois State Medical Society opposed the plan, claiming it would increase medical malpractice insurance premiums. Other critics say Democrats and trial lawyers are merely trying to get around recently enacted caps on pain and suffering damages in lawsuits by expanding the situations in which someone can sue.

Thoughts?

posted by Rich Miller
Friday, May 18, 07 @ 9:15 am

Comments

This is from the Med Society’s web site. “It is our understanding that the current law of a cap on non-economic damages DOES apply.”

The Med Society won the Super Bowl. The Trial Lawyers won a game.

Comment by In the know Friday, May 18, 07 @ 9:36 am
I’d love for the Illinois State Medical Society to post the stories of doctors who have been found guilty of wrongful death, so we can ooze sympathy on them.

If you take a brief trip to the Dept. of Professional Regulation’s website, it’s difficult to understand why we should have any kind of blanket amnesty/blanket caps for doctors.

In January, 28 doctors had their license suspended or revoked, including:

Charles Warren Earnshaw, Jr., Alton physician and surgeon license (036054185)and controlled substance license (336018868) indefinitely suspended due to gross negligence, unprofessional conduct, habitual or excessive use of drugs or alcohol, nontherapeutic prescribing, immoral conduct, failure to keep patient records, and controlled substance violations.

Samuel C. Fernando, Justice physician and surgeon license (036046129) and controlled substance license (336012786) temporarily suspended after violating state and federal controlled substance statutes and record keeping violations.

Gordana Ivanovic, River Forest physician
and surgeon license (036078459) and controlled substance license (336041523) indefinitely suspended due to unprofessional conduct and habitual or excessive use of controlled substances and for appearing at her office while intoxicated and appearing at another healthcare facility while intoxicated.

February’s license suspensions/revocations included this gem:

Luis D’Avis, Skokie - physician and surgeon license (036-056058) and controlled substance licenses (336-020759) & (336-020760) were indefinitely suspended after formal proceedings for violation of probation, unprofessional conduct, immoral conduct of a sexual nature, prescribing controlled substances for non-therapeutic purposes, controlled substance
violations, failure to maintain records of patient care and treatment as required.

And among the 25 doctors cited in March:

James A. Keeler, Mount Vernon – physician assistant license (085-000326) placed on indefinite probation for minimum of five years due to misdemeanor conviction for issuing controlled substances prescriptions in his and his wife’s and friends’ names for his personal nontherapeutic use.

Perhaps instead of offering doctors in Illinois blanket amnesty, we should offer them random drug testing.

Comment by Yellow Dog Democrat Friday, May 18, 07 @ 10:09 am
Unless I am reading the bill wrong, it looks like people completely miss the real impact.

This will have limited impact on med mal cases for the reasons mentioned. Where it will have a major impact is in your typical trucking or construction fatality where it is clear that there are no statutory caps.

This likely will at least double the verdicts in trucking or construction cases. The debate about med mal is nice but not relevant.

Comment by Skeeter Friday, May 18, 07 @ 10:11 am
Skeeter, the only problem with that argument is that the insurance industry — which insures those trucking and construction companies — didn’t oppose the bill. Apparently they disagree with you.

I’d also point out that Delaware is among the 23 states that currently allows these damages. According to the U.S. Chamber of Commerce, Delaware has the most pro-business tort laws in the country.

Comment by Yellow Dog Democrat Friday, May 18, 07 @ 10:19 am
This is off the theme but everyone is human and makes mistakes, nonetheless: from the Editor in MONMOUTH newspaper - “A physician who has practiced medicine in Galesburg for years has been arrested and charged with two counts of aggravated criminal sexual assault.

The alleged offenses occurred in Warren County in March and April, 2004, according to court documents.

Dr. Robert J. Prentice, 62, of Alexis was taken into custody on May 9. The arrest warrants were issued in Warren County. The investigation into the allegations was conducted by detectives with the Illinois State Police.

Warren County State’s Attorney Chip Algren said the victim in the case is a female between the ages of 13 And 17 years old. Algren said the age of the victim weighs into the type of charge.

The age of consent in Illinois is 17. Any sexual act with a child 16 years old or younger, consent is not a factor.

Prentice was able to post bond. His initial court appearance has been set for June 26. The court has order Prentice to undergo additional DNA tests.

If convicted Prentice faces a sentence of three to seven years for each felony count and/or a fine up to $25,000 for each offense.
Doctors and everyone else for that matter should be held to the same standards.
I’m sure there is some serious grief and sorrow for the young person who was involved in this incident, if in fact the allegations are found to be truthful in a court of law.

Comment by SilverBackDemocrat Friday, May 18, 07 @ 10:49 am
Yellow Dog, I have to take issue with your use of Dr. Charles Earnshaw, perhaps the only doctor in 2004 that endorsed, appeared in TV commercials, and supported the trial lawyers choice for Supreme Court - Gordon Maag.

But that’s the type of usual hypocrisy that we see in Illinois politics…the trial lawyers are willing to throw the blame at “bad apple” doctors, but then the turn to “a bad apple” to bluff the public that Gordon Maag is “for the doctors”.

If you’re with the trial lawyers, Yellow Dog, then consider Dr. Charles Earnshaw as one of YOUR teammates.

Comment by Madison County Watcher Friday, May 18, 07 @ 11:06 am
This is a complex problem. As a general proposition I think these damages should be available.

The underlying debate is on “huge runaway verdicts” or “questionable litigation.” The better question is what do we think the source of the problem is? (sorry ended with a prep) The idea of a jury of our peers is that they reflect a microcosim of how our society. If our peers think suchh a claim is valid, or worth x dollars, then in theory we should honor that determination. What these laws are really saying, IMHO, is that as a society we think either Judegs are not fullfilling their gatekeepr roles properly, or a jury can not be trusted to come to the correct determinations. Toss into the mix what does it mean to be a “peer.” To pick on a Med Mal case, their is no requirment that the jury have some form of a medical degree or education, but we ask them to review often complex medical information. Is this truly a jury of ones peers? The reverse holds true for the plaintiff as well. Should peers reflect a mix of the educational and life experience of both the plaintiff and the defednat? Currently it is just a random selection process that cares not for education or life experience.

To toss a grande into the fire…perhaps the better idea would be to have professional jurors, and ditch the caps etc. Why not have Jurors who have knowledge and experience as….jurors

Comment by Ghost Friday, May 18, 07 @ 11:21 am
The comments above really show how the confusion on this matter.

The impact on medical mal-practice cases will be minor.

The impact on construction or trucking or products liability cases will be major, since there are zero caps in those cases.

All this talk about medical malpractice is completely irrelevant.

Comment by Skeeter Friday, May 18, 07 @ 11:27 am
I’ve always thought that addressing the increase in malpractice insurance rates by capping damages is a lot like fighting al Qaeda by invading Iraq.

Let me explain. Insurance rates are much more closely tied to investment practices than to damage awards. If you want to lower malpractice insurance rates, you have to reform the business practices of insurance companies; if you want to fight al Qaeda, you target training camps in Afghanistan.

But even if the increases in malpractice insurance rates is tied solely to frivolous litigation — a doubtful proposition — damage caps will not discourage the frivolous suits. Frivolous lawsuits are profitable for certain lawyers because they can be settled for small amounts (usually under the caps). Multi-million judgments, on the other hand, are usually associated with cases that involve big-time negligence.

So, how will this law impact med mal cases? Well, it won’t have much impact on cases that involve real negligence; those cases would result in judgments at the caps. However, it will keep alive the practice of settling frivolous cases == the ones that don’t go to trial, but settle because insurance companies are too afraid to risk going in front of a jury.

So now Illinois has the worst of both worlds. Patients damaged by incompetent doctors can’t recover a fair judgment; and frivolous cases will continue to be filed.

The real solution is to give judges the tools to screen out frivolous cases early in the process, and then regulate the insurance companies more effectively. Neither caps nor this law address those problems.

Comment by the Other Anonymous Friday, May 18, 07 @ 12:08 pm
Madison County Watcher - I’m not a trial lawyer and I wasn’t involved in the Gordon Maag race, but I have no defense for any of these folks, and keep in mind, this is just from three months. The fact that they were disciplined by the state will hopefully make us all safer, and reduce medical malpractice premiums for all.

Doctors are like every other profession — police, priests, politicians, teachers, and certainly lawyers — there are always some bad apples. The fact that being a doctor is a generally stressful job and they have ready access to controlled substances leads to a pretty alarming rate of substance abuse among physicians. Isn’t that all the more reason that we shouldn’t be granting blanket immunity to the entire profession?

Comment by Yellow Dog Democrat Friday, May 18, 07 @ 1:25 pm
Yelllow Dog,

You mentioned the views of the insurance industry.

Are you up for mentioning why they signed on to this thing?

What did the bill say before the compromise that brought them in?

When you suspect that you don’t have the votes, you do what you can, and the pre-compromise plan was even more outrageous.

Comment by Skeeter Friday, May 18, 07 @ 3:01 pm
Put the can man on this. Sammy will get the job done before we vote again.

Comment by Ellen Miesenhimer Saturday, May 19, 07 @ 5:48 pm