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Frum Forum


Waiting and Waiting for Malpractice Reform

December 29, 2009

By David Gratzer

Exactly why didn’t the Illinois Supreme Court rule on the med malpractice case this month?

The legislation in question is undoubtedly controversial — but popular with docs and the public. It also stood a reasonable chance of being struck down by the court.

Let’s jump back to 2005.

“Illinois’ unbearable medical litigation crisis forced me to actively look outside of the state to practice medicine,” explained Dr. Andrew Roth, an obstetrician. “The signing of this legislation allows me to stay and take care of my patients.”

So observed Dr. Roth in 2005. At the time, state lawmakers passed sweeping medical malpractice reform.

Prior to the legislation, Illinois distinguished itself as being somewhat of a hot zone for malpractice litigation. Between 1998 and 2003, damage awards for pain and suffering in Cook County grew by 247%. For someone like Dr. Roth, moving to Wisconsin could see his med malpractice insurance premiums drop by up to $100,000 a year. Illinois hospitals, particularly in rural areas, had difficulty finding specialists in a host of areas.

The Medical Malpractice Reform Act capped non-economic damages at $500,000 against doctors and a million dollars against hospitals. Premiums fell and specialists like Dr. Roth stopped contemplating a move out of state.

Needless to say, the legislation had one great loser: trial lawyers. They argued (no agenda here, of course) that it undermines separation of powers.

In 1976 and in 1997, the State Assembly had actually passed similar legislation — only to see the caps struck down by the Supreme Court of Illinois.

Jump ahead to 2009, and it appeared likely that the Supreme Court would again hesitate on the caps, as a lower court had already done. Except, the court never ruled.

Why not?

In fairness, it’s not uncommon for the court to postpone a decision. But legal circles are abuzz with another theory: a phone call from the White House asking the justices to hold back on their decision.

It could all be just rumors, but anything that sounds corrupt in Illinois sounds, well, plausible.

If the White House is taking extra care to keep malpractice reform off the agenda, it’s with good cause. As much as the people in the administration like to trumpet their incredible achievement at passing health reform through the Senate on Christmas Eve, they still have much road to travel. The White House has already conceded that conference legislation is unlikely to be taken up before February. Plenty of time for plenty of problems, as I’ve noted before.

Medical malpractice reform is popular and needed — and, despite stretching for more than 2,000 pages, basically absent from Senator Reid’s bill (it proposes some future experiments with the concept). If there was an Illinois ruling showing that states can’t do this on their own, members of Congress could revisit this topic in the new year when they take up health reform again. Except there was no decision.

Getting malpractice reform off the agenda — or, at least, keeping it off the news cycle — seems pretty politically smart.

And even its harshest critics would concede that this White House is pretty politically smart.

Original Source:



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