New Malpractice Law's Effect on Juries

The philosophy of the medical malpractice act is advanced by certain instructions of the jury which are required to be given by Section 2-1707(b). Essentially they advise the jury that it must make no allowance for inflationary factors, assuring them that the court will do so at a later time."

So instructed, the jury, in addition to considering issues of liability, comparative negligence and all other matters usual to such cases, must assess damages by a special itemized verdict.

The form of this verdict is prescribed by Section 2-1109, and is essential to the statutory scheme. The verdict must be itemized "to reflect the monetary distribution among economic loss and non-economic loss." The economic losses are to be further particularized into three additional categories; medical expenses, lost earnings and other categories of economic loss. These three categories must be further particularized as to how much of the damages awarded in that category is for past damages and how much for future damages.

Significantly, the act specifically provides that loss of bodily function, physical impairment and inconvenience are elements of "future damages." Accordingly, it can be rightly argued that this legislation has given recognition to new elements of future damages previously not designated as such.

The responsibility of the jury may not end there, however. Itemization is treated a second time in Section 2-1706, which states that these special findings are required in addition to ". . . other appropriate findings." (I.e. those of itemized verdict). These findings include separate findings of the amount of any past damages, apparently not particularized by category.

Further, there must be a specific finding of the amount of any future damage, particularized for each category of: (1) medical expense, (2) other economic loss and, (3) non-economic loss. The trier must reach a total amount of future damage and the number of years each category will continue. If it is found that any such category will continue for the rest of the plaintiff's life, then the trier's finding about plaintiff's life expectancy must be used to calculate the amount of periodic payments.

Special evidence rules

In addition to the special instructions given to the jury, the act creates some special rules for trial. One of them involves the creation of statutory requirements for the qualification of experts. In order for an expert to testify on the issue of the standard of care, it is necessary that the statutory requirements be met and these prescriptions vary depending on the identity of the defendant.

First, the witness must be licensed in the same profession as the defendant and, the expert must demonstrate sufficient familiarity with the standard of care in Illinois in cases involving both specialist and non-specialist. The medical specialities of the witness must be related to both the "medical problem" and the type of treatment which was administered. And, the witness must have devoted a substantial portion of his time to the area of medicine involved in the case, either by practice, research, or teaching.

Malpractice judgments where there is no election

While the requirements of the certificate of merit and the procedure before the review panel are applicable to all medical malpractice cases, as we have seen, the provisions for the special malpractice judgment are not. The periodic judgment is a central and unique function of this legislation. Its general purpose is to spread payment of future damages over the time they will be experienced. The actual result, however, is to effect a substantial reduction in the compensation plaintiffs are entitled to receive for their injuries.

In order to qualify for the application of the special judgment procedure, (as well as all the provisions contained in sections 1706 through 1718), there must be a proper and timely election. The election also calls into play the necessity for special instructions and findings which allow the medical malpractice judgment to be calculated.

While the procedure for election, application and calculation of the medical malpractice judgment is treated in other sections of the article, there are a few things which should be noted about judgments entered in cases where there has been, nor can be, no proper election.

For example, an election is not possible where the expected damages are less than $250,000. Notably, there is no special provision for judgments being entered pursuant to the opinion of the review panel. Apparently, the drafters intended that such judgments be ordinary civil judgments without any special calculations or reductions.

For jury trial, irrespective of an election, amended Sec. 2-1109 requires an itemized verdict distributing damages in the following way: (1) non-economic loss, and (2) economic loss itemized as to past and future necessary medical expense, past and future lost wages or earnings and earning capacity; other economic loss, past and future.

All this data has no particular use where the election has not been made, however, for the enactment does not provide for the entry of any judgment other than one for present payment on the verdict.

Calculating the medical malpractice judgment

The requirements of the special verdict and findings, and the special instructions, are all directed to supplying the information needed for the entry of the special medical malpractice judgment. The procedure and calculations to arrive at the judgment are entirely independent of whether there will be periodic payments in the future. That too is a function of the calculations. The calculations involved are many and complex and are best understood by walking through the requisite sections step by step.

The court which is to enter the judgment will have before it the following information: past non-economic loss; past medical expense, past lost earnings, past other future economic damages, future non-economic damages and their expected duration, other future economic losses and their duration. The court is then to take the future damages and calculate what is known as the "equivalent lump sum value of future damages."

The method of this calculation is as set forth in Sec. 2-1712, which states that future economic loss will be discounted at a rate of 6 percent compounded on an annual basis and that amount added to future non-economic loss which is undiscounted. These procedures produce two figures: past damages and the equivalent lump sum value of future damages.

The amount of allowable contingent attorney fees is calculated from the sum of these. Next, the claim of subrogees is considered if within 10 days of the verdict they elect to have any part of future damages previously paid (which seems unlikely absent workers' compensation cases) subject to immediate reimbursement.

Next, the court must arrive at what the act characterizes as the "present award." This is done simply by taking the first $250,000 of the equivalent future lump sum damages and adding them to total past damages. Once the "present award" is determined, the remaining damages are entitled the "periodic award." If the equivalent lump sum value of the future damages is under $250,000, there will be no periodic award.

The "periodic award" consists of future damages not paid in the "present award." Attorney fees and expenses attributable to the periodic award, plus sums due a subrogee, are added to the net present award and that's the immediate lump sum judgment figure paid so that only the periodic award remains due and owing.

Thus, plaintiff's counsel receives the fees and expenses attributable to the periodic award and the appropriate fees on the present award, all of which are subject to the statutory fee schedule. Finally, under special circumstances the present award can be increased to supply the plaintiff with additional needed cash for expenses for future damages he immediately requires.

In summary, the court enters a lump sum judgment which will include, as part of the present award: (1) all attorney fees and litigation expenses, (2) all sums due to subrogees under Sec. 1708 (4) and (3) lump sums presently due the plaintiff including all past damages; $250,000 of equivalent lump sum value of future damages and any additional award for immediate necessities.

The court also enters a judgment that must then provide for future _________.

Assume a verdict of ____________ where there is a finding of $400,000 past damages, $400,000 future economic damages; ___ future non-economic damages ____ $200,000 and where the future damages will continue for the life of the plaintiff, here found to be 26 years. (All economic future damage to be constant in the future).

First, we find the equivalent lump sum value of future damages, apply a 6 percent discount ____ to the economic damages, they become $200,000 and are _____ to the non-economic damages which are not reduced; total: $___,000.

Next, the attorney fees must be calculated on this $800,000 figure. That fee is 33-1/2 percent of the first $150,000 or $50,000, and 25 percent of the remaining $650,000, or $162,500; the total fees are therefore, $212,500.

Now, certain proportions must be arrived at to allocate the fee. There are $400,00 past damages, $250,000 in future damages which will be paid as part of the present award and $150,000 of lump sum future damages which are not to be presently paid. Taken in relation to the whole, the past damages represent 50 percent, the future damages to be presently paid equals 31-1/4 percent and the future damages not to be presently paid equals 18-3/4 percent.

Applying these percentages to the fee we find that $106,250 is attributable to past damages, $66,406.25 is attributable to future damages presently payable, and $39,843.75 is attributable to future damages not presently payable.

The present lump sum judgment will therefore be the entire amount of attorney fee ($212,500) added to the plaintiff's net past damages of $293,750 ($400,000 minus $66,250 fees), added to plaintiff's net future damages presently paid of $183,593.75 ($250,000 minus $66,406.25 fees), added to the attorney fees on the $150,000 of equivalent lump sum future damages not presently paid, $39,843.75.

Thus, the lump sum award is $212,500 plus net damages presently paid of $477,343.75 from a total of $689,843.75. (Subrogees and expenses were ignored for purposes of this calculation).

Finally, the periodic judgment must be calculated. This is done by first totaling the equivalent lump sum values of future damages which have been paid presently (under this example $250,000). Next, the proportion between this sum and the whole amount of equivalent lump sum value must be calculated.

In this case, the whole equivalent lump sum value was $400,l000 and a total of $250,000 has been included in the present award accounts for approximately 62-1/2 percent of the total equivalent lump sum value, meaning that all but 37-1/2 percent has been paid. The amount of total damages to be paid in future payments may be arrived at by multiplying the entire unreduced future damages (here, $600,000) by the factor representing the unpaid proportion (37-1/2 percent).

In this example, the damages for _______________________. ______ the act stating that the jury "must be informed."

The instructions are two in number, and given the language of the statute, it would be easy to use the language for the instructions themselves. The act reads:

"(1) the law takes into account the fact that those payments may be made in the future rather than in one lump sum now; and

(2) the jury will make their findings on the assumption that appropriate adjustments for the present value of those payments will be made later and that the jury should not discount those payments to present value." Although using the statutory language creates definition problems, i.e., "present value."

The Section 2-1109 special verdict supplies findings essential for rendering the judgment in compliance with the technical requirements of Section 2-1708.

Sect. 2-1109

According to Section 2-1109, the jury must first itemize what damages are for economic loss and what for non-economic loss. "Economic loss" is defined by the statute as all pecuniary harm for which damages are recoverable [Section 2-1702(a): "non-economic loss" refers to all non-pecuniary injuries such as pain and suffering, inconvenience, disfigurement and physical impairment. It also includes loss of consortium [Section 2-1702(b)]. Section 2-1109 requires nothing further with respect to non-economic loss, but imposes on the jury the onyx of multiple itemizations with respect to economic loss.

The jury is required to ascribe a damage figure for past medical expense, future medical expense, past loss of earning or earning capacity and, if there are any other economic losses, they too must be divided into past and future amounts. Many will be struck by the designation of loss of consortium as a non-pecuniary loss. This is sure to create problems since the Supreme Court has determined it to be a pecuniary loss in the context of wrongful death. Elliott v. Willis, 92 Ill.2d 530 (1982).

Sec. 2-1703(b)

Sec. 2-1706(a)

Sec. 2-1706(c). It can be seen that these findings are duplicitous of those required by the itemized verdict, the only difference being that, under these findings, non-economic loss must be itemized between past and future damages. With respect to this section the act specifically states that these findings shall be made as to each plaintiff. Presumably, however, that this is equally true of the itemization required by Section 2-1109.

It is interesting to note that, in this content, while past damages are merely defined as those having already accrued when the damage findings are made [Section 2-1703(a)], the definition of future damages specifies categories of economic and non-economic loss [Section 1703(b)]. The reason for doing so is not entirely clear.

Sec. 8-2501

Sec. 8-2501(c)

Sec. 8-2501(4)

Sec. 8-2501(a)

Sec. 8-2501(b)

Sec. 2-1705(a)

The section providing for election for a periodic judgment 2-1708(b) states that it must be made prior to the trial. The hearing before the review panel is never referred to as a trial, but as "proceedings," and hence it would seem that the drafters did not intend the special calculations of Sec. 2-1708 to be applied to judgments produced by this review procedure.

Sec. 2-1009 specifically categorizes medical expenses as follows: "medical, surgical, x-ray, dental or other rehabilitative services, drugs, and therapy."

Sec. 2-1708(2). It is also to be noted that section 2-1708(1) does not state that the reductions or additions are to be proportionate, but the entire scheme for allocations under Sec. 2-1709 is based on proportions and it is therefore probably fair to anticipate that such will be also the case with the application of this section.

Hence, a verdict for $400,000 past and $600,000 future damages, where there is a finding of 10 percent plaintiff's fault, would provide the court with base operating figures of $360,000 past, and $540,000 future damages. Thus, before the calculation has to be done, you factor out the comparative negligence, if any.

Sec. 2-1712 does not specifically state that the discount is to be based on the durations found pursuant to Sec. 2-1706(b), but it is presumably what the drafters had in mind.

Sec. 2-1708(3)

Section 2-1708(4). It should be interesting to see what happens if the subrogee does not file within 10 days.

Sec. 2-1708(5).

Note that the court must determine the equivalent lump sum value of all future damages so that it can proportionally reduce the "periodic award" by the value of the equivalent lump sum damages paid in the "present award." See Sec. 2-1708(5).

Sec. 2-1708(7)

Sec. 2-1708(5) provides that if the plaintiff shows that he will, immediately after judgment, "Incur greater expenses for future damages in order to secure appropriate necessities such as medical supplies, residence, or other items, and if the equivalent lump sum value of the total future damages is $500,000 or greater, additional sums may be awarded for present payment. This award, however, cannot cause the amount of present payment to exceed more than 50 percent of the equivalent lump sum value of the future damages. Sec. 2-1708(5)-(7).