Tort reform is an issue that generates strong emotions. Those who support it - primarily hospitals, physicians groups and insurance companies - claim that by limiting compensation for medical malpractice and personal injury claims we can lower the cost of medical care and health insurance, while also reducing the number of “frivolous” lawsuits, saving the court time and money.

Those assertions are patently FALSE.

• Lawyers, by our very nature, are pragmatic. No one takes on a case unless they believe it has merit based on the facts. If you look at the cases where juries awarded large verdicts, they were circumstances where unconscionable errors were made, and where the victims were clearly owed compensation.

• While limiting damages may reduce the number of cases brought to trial, it will not be because “junk” lawsuits have been eliminated. It will be because fewer lawyers will be willing to take on the doctors, hospitals, big pharmaceutical and insurance companies, as they are no longer economically viable. The losers will be the victims.

• As for reduced medical malpractice premiums translating into lower health care costs for patients, there is simply no evidence that hospitals, doctors or physician practices will pass along any savings. For example, in Indiana there is a cap on medical malpractice - yet according to Heathinsurance.org LLC individual insurance rates in 2016 were higher than in Illinois.

In Illinois there have been three attempts at tort reform, twice on medical malpractice cases and once on all personal injury cases. In each instance the statute was reviewed by the Illinois Supreme Court and ruled to be unconstitutional because, among other reasons, the statutes deprived victims of their constitutional right to a jury trial by capping the amount of non-economic damages that a victim could be awarded.

Capping Damages

In 2005, the Illinois legislature passed a law that capped medical malpractice awards at $500,000 for physicians and $1 million for hospitals. Fortunately in 2010, the Illinois Supreme Court invalidated the law, and every citizen of this state is still entitled to a jury trial where they can recover reasonable compensation for their injuries.

Indiana, on the other had, has enacted legislation that places a cap on medical malpractice cases. Patients who suffer any type of adverse outcome due to a doctor’s negligence or incompetence must first present their case to an arbitration board, which has a track record of being biased toward the doctors and hospitals. Only after the board agrees that there has been an egregious error can a patient sue for medical malpractice. The maximum award possible under Indiana law is $1.25 million. It doesn’t matter if the patient died, or if they are a 30-year-old father of three who was earning $100,000 per year and is now incapacitated for life. It doesn’t matter if they have incurred hundreds of thousands of dollars in medical bills as a result of the injury, and may need treatment for many years to come. The award is still capped at $1.25 million for both economic (medical costs and loss of income) and non-economic (pain and suffering; emotional distress; disfigurement and/or loss of normal life) damages.

The purpose of jury trials, and their decisions regarding damages, is to fairly and adequately compensate individuals not only for their actual financial losses, but also for the ways in which their lives have been adversely impacted.

As an example, we recently represented a client who in his 50’s was diagnosed with a squamous cell skin cancer growth on his forehead. He underwent surgery to remove it, which was successful. About 18 months later, he went back to the dermatologist to have another suspicious lesion tested. A biopsy of that lesion was performed and sent to a pathologist, but the dermatologist failed to inform the pathologist that this patient had a history of squamous cell carcinoma. The result of the biopsy was inconclusive, and the pathologist recommended a further biopsy to rule out squamous cell carcinoma. The dermatologist neglected to tell the patient that an additional biopsy was needed at that time. Over a year later, the lesion got worse and was biopsied again, but by then the cancer had spread. Our client ended up losing his right eye, all the skin on the right side of his forehead and cheek, as well as a lot of the muscle that supported it. The surgeons had to use titanium mesh to recreate the bone support, and skin and fat from his thigh to reconstruct his face, which remains badly scarred.

Our client’s medical bills were less than $100,000, but he suffered all four of the qualifying non-economic damages. His life was inexorably altered, and our client now wears a large eye patch and a hat everywhere he goes. Each time he looks in the mirror he is reminded of the hell he has been through. All of this would have been avoided if the dermatologist had simply done his job. Which is exactly what we argued, successfully settling the case for $1,950,000.

In an April 15, 2017 New York Times article, journalist Robert Pear reported on a bill drafted by House Republicans that would limit damages to $250,000 for “injuries caused by medical malpractice or defective drugs or medical devices” for anyone covered by Medicare or Medicaid. Democrats and plaintiff lawyers argued that it would take rights away from victims of egregious medical mistakes and elder abuse in nursing homes. I agree. Any legislation that limits an individual’s right to a trial by a 12 person jury, or caps the amount of damages in a malpractice or personal injury case is unconstitutional. Fortunately, the Illinois Supreme Court agrees. At least for now.

Which is why David A. Axelrod and Associates will continue to fight tirelessly for victims of medical malpractice, catastrophic injury and professional negligence. In the history of the Firm, we have secured more than $50,000,000 in verdicts and settlements, and we have the experience, dedication and passion to help you get the compensation you deserve. Contact us at (312) 782-4800 to discuss the specifics of your case.