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Legislators consider raising the bar on malpractice suits
By ALAN J. ORTBALS

   SPRINGFIELD - Lobbyists representing doctors, lawyers, hospitals and the insurance industry are arguing before an Illinois Senate ad hoc committee about the medical malpractice insurance crisis in an effort to mold legislation to their liking.

   Ideas include reducing the number of frivolous lawsuits, developing greater expertise in the process, tightening the standards for certificates of merit, establishing an expert review panel and creating a separate court system for malpractice claims.

   Illinois is one of 17 states requiring a certificate of merit to file a malpractice suit. Any doctor can sign it, stating the opinion that the plaintiff's case has merit. The standards, however, are low, according to Sen. David Luechtefeld (R-Okawville), a member of the committee.

   "You could have had brain surgery and you could have a dermatologist sign that," he said.

   Raising these standards to reduce the number of frivolous suits is a high priority of the Illinois State Medical Inter-insurance Exchange and has approval from the Illinois Trial Lawyers Association.

   "We agree that frivolous lawsuits should not be filed. We are taking steps to help minimize them," said Michael Schostok, president of the ILTA.

   He said the certificate of merit should be "toughened up" to require that physicians reviewing these cases are familiar with the medical specialty involved.

   Another proposal is to establish an expert review and screening panel to examine cases before they go to court. Thirty-one states have passed such legislation, Schostok said, but 11 of those - including Illinois - were struck down by the courts.

   ISMIE also supports this proposal.

   "One of the things the Supreme Court knocked down in 1995 was a pre-hearing panel of three people - a medical expert, a legal expert and the third, a neutral party," said Dr. Harold Jensen, ISMIE chairman. But it's a great approach."

   Medical malpractice cases are often too technical for a lay jury to understand, he said.

   "For a lay jury to be educated over a one- or two-day trial is foolishness," Jensen said. "A panel would be a superb way to handle a difficult problem."

   The third proposal is to create a special court for medical claims. Proponents say this would increase the level of expertise, provide for speedier hearings and bring stability and uniformity to the way cases are handled.

   It's a concept that has received some bipartisan support on the ad hoc committee. Luechtefeld said he wants to try it.

   "Our proposal is to make it a pilot project for the Fifth Judicial District," he said. "The district represents 37 Southern Illinois counties. Under this proposal, the medical malpractice court would still function the same way, but the judge would be someone well-versed in medical malpractice."

   The jury pool would come from a much larger area to make it more well rounded, he said.

   Sen. Bill Haine (D-Alton) agrees with the concept but thinks it needs to be implemented differently.

   "I would prefer an administrative system where you have a Court of Medical Claims based in Springfield," Haine said. "It would appoint arbitrators made up of doctors, lawyers and experts in medical malpractice issues. The court would hear these cases and then they would go to a Court of Medical Claims for a review…then, perhaps, to the Illinois Supreme Court for a general oversight. That way we remove it entirely from the judicial system."

   Sen. John Cullerton (D-Chicago), ad hoc committee chairman, said both the panel and special court proposals have been struck down by the Illinois Supreme Court in the past and it's likely they would be again.

   Amending the state constitution is not part of the solution, he said, noting that the problem is primarily the fault of the insurance industry. Greater oversight by the Illinois Department of Insurance, more openness from ISMIE and a bull market on Wall Street will solve the crisis, he said.