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Med
mal reform helps bring doctors back to area
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EDITOR’S
NOTE: Here is No. 1 in The Telegraph’s Top 10 stories of 2005, as
voted on by the news staff.
By
SANFORD J. SCHMIDT
The
Telegraph
The Illinois General Assembly passed a landmark
medical malpractice reform law in 2005, but the fallout extending
through 2006 and beyond will include attempts to restore access to
medical care in the River Bend and a possible court battle over caps
on non-economic damages.
"I’ve handled some very important
bills, but the medical malpractice bill was clearly the most
momentous bill, not only in the past year, but in the past decade,"
said state Sen. WilliamHaine, D-Alton, the chief
co-sponsor.
"We changed the civil procedure in which medical
malpractice is adjudicated in the state. It was a major change in
the law," he said.
An estimated 40 doctors had left the area
for the sole reason that medical malpractice liability insurance
premiums were unaffordable, said Rob Shelton, a spokesman for Alton
Memorial Hospital. Others left for that and other reasons but could
not be replaced, because new doctors were reluctant to come to an
area where the risk of being sued seemed extremely high.
The
state legislature passed a medical malpractice reform bill in early
June, including a $500,000 cap per defendant on non-economic
damages, restraints on frivolous suits and insurance reform. Gov.
Rod Blagojevich signed the bill into law at Saint Anthony’s Health
Center in Alton on Aug. 25.
Non-economic damages include
awards for pain or suffering on the part of the patient or loss of
companionship on the part of survivors.
The signing of the
bill capped a two-year struggle that included untold hours of
hearings, lobbying efforts, media events and intense news
coverage.
Saint Anthony’s CEO Bill Kessler said the efforts
of doctors and their patients had a huge impact in getting the bill
passed.
"Doctors and their patients went to Springfield and
told legislators how they felt. They would say, ‘I lost my doctor,’
or ‘I’m on my third obstetrician since I became pregnant,’" Kessler
said.
He noted that the loss of doctors had a real impact on
patients, who had a real impact on their
representatives.
"Those (doctor-patient) relationships are
some of the most essential relationships people have," Kessler
said
Haine said he and his colleagues became acutely aware of
the problem.
"It had reached a critical mass. We were at
Ground Zero of the medical malpractice crisis," he said.
Once
the bill passed, hospital officials went to work to replace the
doctors who had left. Kessler said Saint Anthony’s is working with
physicians groups in Alton and St. Louis to bring obstetricians,
orthopedists, urologists and other specialists back to the River
Bend.
He said he is grateful to the doctors who have stayed,
because the established groups can serve as magnets for new
physicians.
Officials at Alton Memorial are busier recruiting
new doctors than ever, President Ron McMullen said.
"Clearly,
we’ve been talking to more physicians since August than we had in
the previous two years," he said. "So far, (the reform bill) has had
a mild positive effect.
"We interviewed a doctor recently who
told us the interview would not have happened were it not for that
bill," McMullen said.
While the outlook for recruiting of
physicians is cautiously optimistic, the legal outlook for the
controversial caps on damages is clouded.
"It’s always
difficult to predict. The Illinois Supreme Court has changed, but
the Constitution has not changed," said attorney John J. Hopkins of
Edwardsville, who represents plaintiffs in malpractice lawsuits and
other injured parties.
"In the next 12 months, either nothing
will happen or a suit could be filed that will serve as a test
case," McMullen said. "What people tell me is that, once it is
filed, it could take three to five years to go all the way to the
Supreme Court."
Hopkins said it may take a long time before a
case is filed that would serve as a test case. Someone would have to
walk into an attorney’s office with an injury that could result in
an award of more than the $500,000 limit, he said.
The case
would take time to develop. Files would have to be reviewed,
evidence gathered and documents obtained, he said.
"It could
take several months before the case is ready to file," he
said.
Hopkins noted that the Supreme Court struck down caps
in 1997 in a case, Best vs. Taylor Machine Works, that arose from
Madison County. The court struck down a 1995 law that imposed a
$500,000 cap on damages in a wide range of cases.
The
argument against caps was that it represented "special legislation"
-- that is, legislation that benefits one specific group (the
medical industry) over another.
Hopkins said the argument is
that the legislature cannot pass a law that favors doctors any more
than it could pass a bill that favors Ford Motor Co. or anyone
else.
"This is supposed to be a democracy, where everyone is
treated equally," he said.
The high court also criticized the
legislature for its haste in passing the bill in 1995.
But
Haine said the bill signed into law in August is far different than
the law in effect when the high court ruled in Best vs. Taylor. That
law applied to a broad range of cases, aside from medical
malpractice.
That law was overly broad, but the new law is
directed specifically at the unique situation in which doctors find
themselves, Haine said. The number of doctors covered by medical
malpractice liability insurance is relatively small, but the
insurance provider was being forced to accumulate a huge reserve to
cover the risk of large verdicts, settlement costs and legal
expenses.
Doctors are different, because bad outcomes in
medicine are not always the result of bad medical
practice.
"The provision of medical services is a unique
enterprise," Haine said. "It is more of an art than science and
fraught with risk."
The General Assembly, over two years of
hearings, fact-finding and informal discussion, established a
detailed record of its intent, Haine said.
"For instance, we
heard testimony from a hospital in the inner city of Chicago. It was
self-insured, and medical malpractice had a huge impact on its
ability to provide services to the poor," he said.
The
opinions of plaintiffs’ attorneys, notably a strong contingent from
the Chicago area, were heard and considered, he said.
Haine
acknowledged that he was reluctant to accept caps on damages, but
he, as well as many plaintiffs’ attorneys from the River Bend,
understood the need to act.
"The center of the opposition was
trial attorneys from the Chicago area," Haine said. "Most lawyers in
the Metro East may not have been enthused with the idea of caps, but
they were certainly aware that something had to be done."
The
plaintiffs’ attorneys pointed out problems with the bill that would
have unintended consequences for their clients, Haine said, and
their testimony allowed lawmakers to improve the medical malpractice
liability reform bill.
The Supreme Court likely will take
those factors into consideration when it considers a case testing
the caps, coupled with the fact that lawmakers clearly established
that they acted for the common good.
"I’m confident that the
Supreme Court will find this bill to be a reasonable exercise of
legislative discretion," Haine
said.
sanfordjschmidt@hotmail.com
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| ©The
Telegraph 2006 |
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