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Attorneys, insurers, physicians point fingers over medical mal
By ALAN J. ORTBALS

   Illinois trial lawyers and the Illinois State Medical Inter-insurance Exchange are locked in a struggle for the hearts and minds of Illinois legislators, with the future of medical services in Illinois at stake.

   The two camps have widely different views on the causes and solutions to the medical malpractice insurance crisis. Some legislators are skeptical that anything of substance will be sent to Gov. Rod Blagojevich for his signature by May 21, the end of the regular session.

   A bipartisan Senate ad hoc committee, chaired by Sen. John Cullerton (D-Chicago) has been meeting regularly on the subject. Sen. David Luechtefeld (R-Okawville) is a member of the committee.

   "I think this committee has the unofficial blessing of the different groups - certainly (Sen. Frank) Watson, (Attorney General Lisa) Madigan and the governor," Luechtefeld said.

   But he is pessimistic about the outcome.

   "It's difficult to meet and find that many of the things you feel make a difference are off the table," he said. "We asked the trial lawyers to put together something they could live with. They basically said, 'If the insurance companies change and the hospitals change and the docs change, everything's going to be OK. We don't really need tort reform.'"

   Twice the Illinois Assembly has passed legislation to cap awards on medical malpractice cases, only to be reversed by the Illinois Supreme Court as unconstitutional.

   Michael Schostok, president of the Illinois Trial Lawyers Association, said it's a waste of time to even discuss caps as a solution.

   "If you talk to any judicial scholar, any lawyer who knows what he's talking about, he will tell you that the Supreme Court decision is relatively airtight," he said.

   Caps are ineffective, he added.

   "Back in 1975, California passed a $250,000 cap on non-economic damages. Over the following nine-year period, (med mal) rates went up every single year for a total increase of 450 percent," he said. "It wasn't until Proposition 103 was passed - an initiative to reform the (California) Department of Insurance to create greater accountability and transparency in the rate-setting process - that medical malpractice (damages) finally began to go down."

   Dr. Harold L. Jensen, chairman of ISMIE, disagrees.

   Realizing that medical malpractice award caps were found to be unconstitutional by the Illinois Supreme Court in the 1970s, Jensen said ISMIE turned to experts to draft new legislation in 1995.

   "We went to Chicago law firms noted for their knowledge of constitutional law, and they wrote the legislation that was eventually passed that they described as being 'bulletproof,'" he said. "There were 10 or 12 provisions that passed. The Supreme Court knocked down all of them. It was political."

   Prop 103 had very little, if any, effect on malpractice insurance rates in California, according to Jensen.

   Aside from the question of caps on awards, trial attorneys and physicians are miles apart on almost all related topics. Schostok said the problem is part of the "typical insurance cycle," coupled with poor oversight of the insurance industry by the Illinois Department of Insurance and an unwillingness of the medical profession to police itself.

   Jensen said the problem lies in the judiciary and that caps are essential.

   "The tort system in our state is broken," he said. "It's out of control. Since 1975 or 1976, the state medical society and ISMIE have been warning that this is a terrible problem. It boils and boils and boils and comes to a head periodically."

   California passed caps-specific legislation in 1976, the same year ISMIE formed.

   "The result is that over the years, California's (medical mal) premiums tend to run about half of what ours are," said Jensen. "We're sure that that cap, $250,000, is doing it. Indiana, Wisconsin and Iowa all just passed a cap. If I were to practice in Indiana, I would pay half the premiums I pay in Illinois."

   But participants agree that proposed legislation with caps on awards won't be part of the package.

   "The trial lawyers have the upper hand because they are a big contributor to the Democratic Party, and the Democratic Party's in charge right now," Luechtefeld said. "Unless the party is going to say to the trial lawyers, 'You need to make some changes, too,' you're probably not going to get meaningful legislation."