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One-Size-Fits-All Does Not Work in Malpractice Cases

March 2, 2009

Supporters of medical malpractice award caps continue to spread untruths regarding the state of Illinois’ health care prior to the unfair Medical Malpractice Reform Act of 2005. They claim that prior to the law’s enactment, our state was in chaos. However, the American Medical Association’s very own data included in the recent “Physicians Characteristics and Distribution” in the United States mocks this claim. Doctors, it seems, never did begin an exodus from our state, as some people boldly claim. Moreover, there has not been an explosion of medical malpractice cases. Sadly, this was all propaganda put forth by an advertising campaign paid for by the state’s largest medical malpractice insurer.

The law enacted in 2005 is nothing new in Illinois. In fact, twice before, this type of law was enacted and subsequently struck down as a violation of the Illinois Constitution. Our state’s highest court twice has decided in favor of patients and against insurance companies seeking to protect their own profits.

The case now before the Illinois Supreme Court is about a little girl named Abigaile LeBron. Abigaile is a 3-year-old girl whose life has been changed by the severe brain damage she suffered as a result of medical negligence. It is likely that Abigaile will have to be fed through a tube for the rest of her life. She never will develop cognitively or physically as her peers do. And she probably never will live independently.

The arbitrary cap that is part of the 2005 law has been castigated as a one-size-fits-all approach that does not protect those who have been most harmed by medical or hospital negligence. The caps ordain that a little girl, like Abigaile, should be entitled to the same monetary damages as someone who suffered a much lesser injury, despite the fact that she and her family will be burdened for a lifetime.

Long-supressed insurance reforms that are contained in the same legislation have resulted in the reduction of malpractice premiums. Most important, this law has forced malpractice insurance providers to provide greater transparency on rate-setting and payouts, which, in turn, has spurred competition, motivated more companies to enter the marketplace and lowered premiums for doctors.

The Illinois Constitution was put in place to ensure individual rights and freedoms to all Illinoisans, rich and poor, black and white, young and old. While corporations and profit-hungry executives often stack the deck against individuals in the marketplace and the halls of government, the courtrooms of our state still can provide all parties with a level playing field. The Illinois Supreme Court now will decided whether that constitutional standard remains in place for patients like Abigaile LeBron. We hope that the state’s highest court again will decided in favor of patients and against the big insurance companies’ profits.

Philip Harnett Corboy Jr.
ChicagoPresident, Illinois Trial LawyersAssociation

One-size-fits-all does not work in malpractice cases

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