Capping Justice for Victims of Medical Mistakes

In less than a week, the state of Illinois will be without a budget unless Republican Governor Bruce Rauner and the Democratically controlled state legislature can come to an agreement. For the past several months, Governor Rauner has refused to sign a budget unless the budget includes a number of “pro business” regulations that he believes are important for Illinois’ economy. So far, the Legislature has rebuffed working with Rauner on these non-budget regulations until an actual budget is passed. One such regulation advocated by Governor Rauner is tort reform, a law designed to limit how much compensation a victim of medical malpractice or other serious personal injuries can receive from judge or jury of their peers.

Limits on medical malpractice damages are hardly a new concept in Illinois. In fact, since 1976, the Illinois Supreme Court has declared caps on medical malpractice damages unconstitutional on three separate occasions. Lebron v. Gottlieb Mem. Hosp., 237 Ill. 2d 217 (Ill. 2010), Best v. Taylor Mach. Works, 179 Ill. 2d 367 (Ill. 1997), Wright v. Central Du Page Hosp. Ass’n, 63 Ill. 2d 313 (Ill. 1976). On these occasions, the Court found the restrictions unconstitutional because the caps (1) discriminate against a select group of people (the seriously injured) without a sound or reasonable basis, and (2) because the law violates separation of powers as a legislative enactment reducing court judgments infringes on the judicial branch’s authority. To circumvent these rulings, Governor Rauner proposes that any future caps on victim damages be enacted via an amendment to the Illinois Constitution.

While our judicial system may have its faults, at its core, the system serves to level the playing field. Any injured person, rich or poor, old or young, can enter a courtroom and receive fair compensation if they have been wronged. It is often the one and only chance a person who is facing a life altering injury has to be compensated for their losses and pain and the only opportunity to return their life to some semblance of normalcy. Restrictions on this basic right only serve to limit this ability. Quite simply, they limit justice.

One only needs to look to Illinois’ closest neighbor to the south to see the devastating effect such caps can have. In 1975, Indiana began placing a hard cap on the amount of compensation available to victims of medical malpractice. Today, that cap stands at $1.25 million. A simple search of internet demonstrates the heartbreaking effects of these restrictions. For example, local television station RTV6 in Indianapolis looks at the case of Scott Hubbarb. In 1999, doctors failed to diagnose Scott’s melanoma, a form a skin cancer, during a routine biopsy. Had the melanoma been correctly detected, “doctor’s told him his condition could have been easily treated.” Instead, when the disease was eventually caught as a stage four cancer, Scott was told he only had months to live. His medical expenses stood in excess of $1.8 million dollars and as sole provider for his wife and two children, he had to stop working. Any award of damages over the cap, however, would automatically be reduced to the $1.25 million leaving his family in debt and uncompensated for his pain, suffering, loss of future earnings and eventual death. As Scott described, in Indiana “someone can literally take someone’s life and there’s little to no recourse. There’s little to no help.”

Scott is hardly alone. Oftentimes, states with caps on medical malpractice damages see the burden of providing a lifetime of future care fall on the victims and their families. This shift can force families to lose their home or business and become reliant on government assistance to meet their basic needs and expenses. This outcome is hardly fair as it penalizes the victim rather than the wrongdoer. The consequences of a medical mistake need to fall on the doctors and hospitals making the errors; not the injured patients. Negligent automobile drivers are held accountable for injuries that they cause. The same accountability and incentive for proper conduct needs to be imposed on the medical community.

As of now, Illinois still places no such restrictions on fair compensation for injured citizens. If a person becomes paralyzed by a botched medical procedure and now needs constant care for the rest of their life, the person can move on with their life knowing that this needed medical care will be provided by the responsible party. Their future and lost earnings will be compensated. The pain, suffering and disfigurement they now face, while never cured, will be, in a small measure, quantified. The family they provided for will be protected. Whether that fairness and justice remains in this state will be tested over the next few weeks.