Changes to Med-Mal Rules Must Keep Fairness at Center

Illinois Republican leaders are attempting once again to have medical malpractice claims specially considered by physicians, even though twice the Illinois Supreme Court has ruled such a screening process unconstitutional.

In a press conference March 10, Illinois Senate Minority Leader Frank Watson, R-Greenville, announced his support of an alternate court that would allow doctors to decide when mistakes have occurred. HE called this solution to the medical practice "crisis" in this state.

It should be noted, however, that the states’ largest medical malpractice insurer, ISMIE Mutual Insurance Co., which provides coverage for 14,000 physicians in the state, announced that same day that the base-rate increased for physicians’ insurance beginning July 1 would be less than expected: 7.4 percent, "modest," according to the insurer, compared to the 35 percent hike last year.

The money it actually paid out in claims in 2002 was less than in 1992. In fact, the number of claims that ISMIE paid has decreased by 50 percent in the last 10 years.

Nonetheless, Republicans are calling for the creation of special panels, which would appear to give doctors special treatment.

Patients want justice and fairness. How is that to happen when a doctor lies or when medical personnel changes records? And doctors are to be the ones to determine if negligence occurred?

The Illinois Supreme Court has twice decided: Screening of medical malpractice cases by non-judicial panels is unconstitutional. Wright v. Central DuPage Hospital Assn., 63 Ill.2d 313, 347 N.E,.2d 736 (1976), dealt with legislation that provided a three-member panel consisting of a circuit judge, an attorney and a physician as a prerequisite to trial in medical malpractice cases. After making a determination of liability, damages could be found by the group.

The Illinois Supreme Court held that such a screening panel violated Article VI, Sections 1 and 9 of the Illinois Constitution dealing with the source of judicial power and the jurisdiction of the circuit courts. The court also found it to be an unconstitutional burden on the right to trial by jury as provided in Article I, Section 13 of the Illinois Constitution.

Just a few years later, a new law slightly changed the idea to where the judge on a three-member screening panel would be the sole arbiter of legal issues, and the panel as a whole would make the factual determinations. Again, the Illinois Supreme Court ruled that such a scheme would force the judge to unconstitutionally share his authority with non-judicial members. Bernier v. Burris, 113 Ill.2d 219, 497 N.E.2d 763 (1986).

The announcement this year by Watson appears to rehash many of these same issues. Doctors in this state already have great control over the filing of a lawsuit, in that a physician must sign a certificate attesting to the medical merit of the lawsuit.

U.S. Sen. Dick Durbin (D-Ill.) Has sponsored a bill, S. 1374, which addresses a number of issues involving health-care professionals and the rising costs of malpractice insurance.

Among the tenets of the "Better Health Act of 2003" is commissioning a study on the feasibility of establishing a federal reinsurance fund for the payment of certain nonecomonic damages arising from medical malpractice actions. It would also establish an Independent Advisory Commission on Medical Malpractice Insurance, which would examine and report to Congress the reasons for rising premiums.

The American Bar Association’s Standing Committee on Medical Professional Liability is studying a draft of a recommendation that would ultimately go to the ABA House of delegates. This resolution would call upon Congress to enact legislation prohibiting the federalization of medical malpractice law but still make more affordable malpractice insurance for health care providers.

Also under study are proposals pertaining to the investigation and analysis of the development of a formula that would allow healthcare providers to pass on a certain percentage of the cost of their malpractice insurance to health plans and government health-care reimbursement programs.

The committee is getting input from a number of ABA constituencies regarding this issue as well as the feasibility of offsetting the cost of such premiums for certain high-risk medical specialities when the availability of such services is adversely affected in certain states. The standing committee also is studying ways to ameliorate the impact of increased professional liability premiums on physicians over a short period of time. This would include tax credits, set-offs or deductions for all or a portion of the cost of malpractice insurance incurred by providers.

All of us must put our heads together to solve this complex problem. Justice and fairness must remain the foundation of the civil justice system, with patient health and safety the ultimate goal.