Patient's Plea to Stop Caps Legislation Fell on Deaf Ears

After spending weeks in Springfield telling Illinois legislators about the unfairness of caps on damages, encouraging them to trust juries to make the right decisions and about how the legislators should not allow insurers and health-care providers to write bills to escape liability, the facts seemed to be falling on deaf ears.

Then a 33-year-old woman came to my office in tears, telling me the horrific story of how a doctor had removed her healthy breast and dozens of lymph nodes. In conducting a biopsy of her breasts, the pathology lab had switched her specimen with another woman’s. It turns out the wife and mother of two actually didn’t have cancer at all.

Because of inexcusable carelessness, Molly Akers of New Lenox, a stay-at-home mom, is forever scarred. She suffers pain and swelling down her arm and is unsure if she will ever be able to return to her personal training job.

But Molly also was upset that had the incident occurred just months later, her damages might be capped for this egregious error on the part of the hospital.

Certainly, her rather modest hospital and medical bills would be paid as economic damages in a lawsuit. But is a cap fair that prevents compensating her for the nightmares that wake her up in the middle of the night? How about for her living the rest of life with a disfigured body? Shouldn’t that be left to a jury?

By now you know a majority of lawmakers have voted as if they are wiser than the juries. But before their vote, Molly wanted to tell them they were wrong if they thought the pending legislation would help the public. She thought she needed to speak out for those who were yet to be injured as terribly as she.

So she traveled to Springfield as legislators were working on the bill. Molly bravely walked to the front of a high-ceilinged room, sat behind one of the microphones and quietly told her story. Molly pleaded with the legislators to see the unfairness in what they were contemplating doing.

But she was disappointed weeks later to find that a large number of legislators, including a few in that room, had voted in favor of caps on damages. Molly’s words had fallen on deaf ears. She felt her trip had been in vain.

The caps on damages in S.B. 475 have been widely publicized. Less well known are the other onerous provisions in the legislation. The unnecessarily strict new standards for expert witnesses (Amended 735 ILCS 5/8-2501), grafted onto the initial lawsuit-screening procedures under Section 2-622 (735 ILCS 5/2-622), will simply deny access to the courts for many patients with meritorious cases. Both of these changes assume, incorrectly, that the judicial does not do its job of being the "gatekeeper" for the admission of competent evidence.

Also, the sardonically entitled "Guaranteed Payment of Future Medical Expenses and Costs of Life Care" (735 ILCS 5/2-1704.5) requires profoundly injured plaintiffs to accept an annuity for payment of their future medical and caretaking expenses. The plaintiffs must assume the risk that the annuity company will be around 20, or maybe 70, years from now to pay those expenses.

Finally, doctors and hospitals can confess their errors within 72 hours of an adverse incident without the apology being admitted into evidence (Amended 735 ILCS 5/8-1901).

Make no mistake, the war over this law will be waged on a different battleground, as it was 30 years ago and again 10 years ago. No matter how one tries to characterize it, the cap on damages in S.B. 475 is identical in legislative purpose and substance to previous legislation that has been held unconstitutional as special legislation and in violation of the doctrine of the separation of powers.

We should note a few of the economic realities that provide background for this legislation. First, the "economic damages," which were not capped, are largely returned to the doctors and hospitals in the way of medical bills, rehabilitation and other health care needs. Economic damages are not really the patient’s money.

The "non-economic" damages, which the legislation does cap, often end up being used for health care purposes, too, because the economic damages simply aren’t enough. With rising health care costs, those injured by medical negligence are lucky if they can find the resources to finance the medical treatment they require over their lifetimes.

Second, the predominant malpractice insurer in Illinois, ISMIE, has been blaming lawsuits because it doesn’t want its "free ride" to come to an end. It has been allowed to charge whatever premiums it sees fit, without interference by regulation, for more than 30 years. It refuses to release pertinent information to other insurers, which would enhance competition and drive down premium rates, according to experts in the field.

The fact that there are far too many medical mistakes and extremely lax insurance regulation are not legitimate reasons to cap damages. Wouldn’t it be better to police the medical profession more closely to get rid of recidivists? Wouldn’t that also be a reason to look more closely into insurers’ books?

All of the anecdotes and tall tales of the insurance companies and the health care world are nothing but spin. They just don’t add up. Molly Akers, though, is for real.