Details of Malpractice Act Explained

The purpose of this article is to supply those interested in the subject matter with a general understanding of how the new medical malpractice legislation will work at all phases of the litigation. While I could spend a great deal of time supplying the reader with interesting vignettes regarding the politics and lobbying that took place during the many months preceding passage of this legislation. I've made an earnest effort to avoid that temptation because it would defeat the substantive goal of this article. Similarly, I've spent little time nit-picking at those details which will ultimately cause the debates on appeal. I will, however, take this one opportunity to express my one continuing disappointment about this legislation. The new medical malpractice legislation will cause more confusion and difficulty than anything else I've ever seen in tort litigation. Analysis will surely show that detailed nuances will plague practitioners on both sides of the aisle. Regrettably, the legislation wasn't written by plaintiff or defense attorneys who have to use it. And while countless hours were spent by practitioner-negotiators for both sides who met regularly before the spring legislative session, their joint work product was substantially ignored in exchange for a document that was ultimately billed as a "non-negotiable instrument." Thus, putting aside the financial side of the issues, the pure mechanics of handling a medical negligence case will prove to be unnecessarily arduous and time-consuming for all attorneys involved in the proceedings. I suppose that can be good or bad, depending upon your point of view. H.B. 1604 constitutes a sweeping effort by the legislature to change the rights of Illinois citizens to seek and secure redress for injuries sustained by reason of the negligence of a particular class of defendant: those engaged in what the enactment itself calls the "healing arts." While the legislation does not purport to actually limit such recoveries outright, the enactment makes changes to the Illinois Code of Civil Procedure, which structure such recoveries, impose burdensome predicate requirements and penalize unsuccessful litigants. Particularly, there are three major innovations created by this legislation: the requirement of a certificate of merit used at the pleading stage in order to state a cause of action; a hearing before a review panel as a condition precedent to obtaining the trial which, under our tradition, has hitherto been the right of free men and women since the Magna Carta, and the requirement that judgments, in larger cases, be structured to provide for periodic payments. Additionally, numerous miscellaneous sections were enacted in aid of these fundamental changes and the underlying policy of the act. The legislation itself is complicated, and the new and amended sections interrelate in such a way that no clear picture of the new procedure can be gained by considering any section independently, for it must be conceived and considered as a whole. It is this fact which is the reason for the method of this work which, unlike most articles on new statutes, does not present it section by section, but rather by individual topics. No effort has been made to deal with the legislative history, motivations or social consequences of these changes, much less their wisdom or constitutional sufficiency. Rather, this article has been written to satisfy an emergency need to, quite simply, explain what has happened and how it works. Accordingly, the structure of this article will be to trace out, chronologically, what a medical malpractice case will now be like, so that the practitioner can gain a sense of the new procedure. Because there is no true authority for these interpretations, however, I have, of necessity, had to rely on my own experience in endeavoring to foresee the details of practice under this new legislation, and because its language is often unclear and its intendments unprecedented, opinion rightly may, and certainly will, differ as to its meaning. This fact, notwithstanding, I am confident that the reader will find this chronology helpful in understanding the enactment itself and practicing under it. In defense of my comments I can, however, tell you that I was there and participated in much of what occurred in Springfield. Scope of the legislation Apart from one reference to legal malpractice, the new legislation is limited to what is variously called "medical malpractice actions" and "healing art malpractice cases." The legislation intends to encompass all types of "healing art defendants," including hospitals, physicians, dentists, psychologists, podiatrists, and all those licensed to treat human ailments without the use of drug or surgery. Specifically excluded, however, are those who treat by spiritual means through prayer.

The theory under which the case is brought is irrelevant to the application of the act, as is the fact of the patient's death. It is clear, therefore, that a broad application is intended and will be applied.

The attorney-client relationship

The new legislation has a significant impact on the attorney-client relationship and attorneys' compensation. Provisions of the act touch upon the contents of the attorney-client contract itself, a matter ordinarily resolved before the suit is commenced and, more important, a subject matter generally negotiated between the attorney and client without outside influence and intervention.

The first influence of the act is that of a statutory limitation on contingency fees. The act limits fees to percentages of 33-1/3 percent of the first $150,000.00 of recovery, 25 percent of the next $850,000.00; and, 20 percent of any amount recovered in excess of $1,000,000. The act contemplates that these percentages are maximum fees for all attorneys involved. However, the act does not address contractual provisions relating to additional compensation int he case of appeal, retrial or hourly rate alternatives. Section 2-1114(c) does provide for additional compensation for an attorney who "performs extraordinary services involving more than usual participation in time and effort." The authority for such enlargement of fees comes from a general grant of power to the Circuit Court to "review contingent fee agreements for fairness."

One cannot fully understand the statutory scheme as to attorney fees until placed in the content of the judgment because the amount of the contingent fees, if not enlarged, is a function of the sum recovered by plaintiff which may well bear little relation to the verdict, and instead ties in with the complex sections which provide for the computation of the final award of judgment. At this point, only certain general features can be pointed out. The first is that the computation of attorney fees has become the business of the court, and fees and litigation expenses are to be provided for in the judgment.

The final form of the legislation contemplates that the attorneys will be presently paid, whether there is to be a periodic judgment or not - earlier forms of the legislation had a different idea, remnants of which are still in evidence, creating some confusion. Interestingly, the lump sum for attorney fees, will not be based on the amount of verdict, but on an amount to which a discount factor of 6 percent has been applied to future damages used during the court's efforts to determine the so-called "equivalent lump sum recovered." I think that the calculation of attorney fees under this legislation is an absolute nightmare and was surely intended by its author as one more deterrent in the overall scheme. At the outset counsel should recognize that numerous variables impact the calculation process.

The days of dividing the verdict by three in malpractice cases, are gone. Section 2-1708 describes the procedure for dealing with attorney fees, if the case is being tried subject to an election from periodic payments. In outright settlements on cases tried that are not subject to periodic payments (which will be rare), then the straightforward limitations of Section 2-1114 will appl