Consider Victims of Medical Negligence
Chicago Daily Law Bulletin, December 14, 2009

In a recent Letter to the Editor two health care attorneys, Thomas Conley and Norman Jeddeloh called for the Illinois Supreme Court to uphold the 2005 legislation placing caps on non-economic damages in medical malpractice cases. Unfortunately, much of their argument consists of long-debunked myths and unsubstantiated claims.

Conley and Jeddeloh state they "personally observed the exodus of physicians into neighboring states." That's a colorful phrase, conjuring up an image of hordes of white-coated doctors, stethoscopes flapping in the wind, making a mad dash for the border - but it never happened. The truth is not only was there no "exodus," the AMA's own figures show the number of doctors in Illinois steadily increased over the last decade. Those numbers also show there are more doctors per capita in states without caps than those with them.

The letter writers claim "caps work to rein in medical liability premiums," but that is a misread of the facts. The aspect of the 2005 legislation that has helped reduce health care costs in Illinois is not caps, but the insurance reforms contained in the law. These reforms have forced insurance carriers including ISMIE, Illinois' largest medical malpractice insurer, to provide greater transparency on rate setting and payouts. That in turn has spurred competition by inducing more companies to enter the marketplace and offer reduced premiums to doctors. However, as ISMIE's balance sheet shows, the real solution to rising costs is more medical insurance reform.

In the years leading up to the cap, ISMIE claimed it was on the verge of insolvency, even though it was generating millions of dollars in profits. After the cap, ISMIE's profits doubled in the first year and have nearly quadrupled in subsequent years. In 2008, ISMIE reported over $34 million in profits and collected $106 million in extra premiums. If caps were intended to reduce health care costs for all at the expense of victims of malpractice, why are ISMIE's profits growing at a record pace?

Perhaps Conley and Jeddeloh's argument's biggest failing is they deal in abstractions, reducing the subject to a case name and number, and treating it as an exercise in math rather than reality.

At the heart of Lebron v. Gottleib Memorial Hospital is Abigail Lebron, who at birth suffered severe brain damage as the result of medical negligence. As this debate continues, it's important to remember that Abigail is a very real little girl, and what happened to her was not an abstraction.

Nor can any medical malpractice case be simplified to a math equation that places an arbitrary value on human suffering - and despite Conley and Jeddeloh's claims to the contrary, non-economic damage caps are arbitrary. Under the "one size fits all" legislation Conley and Jeddeloh favor there is no room for extraordinary circumstances, no difference between one case and another. The truth is the damages in many cases may not approach the cap, but many others will far exceed it. The law must be flexible enough to allow for fairness to all victims of medical negligence; a cap destroys fairness, and places an arbitrary value on a human life.

The Illinois Supreme Court is right to be careful and painstaking as they consider this case. While we are anxious to hear their decision, we are also hoping the justices will rule in a manner ensuring fairness to Abigail LeBron and all the other victims of medical negligence.

Peter J. Flowers
President
Illinois Trial Lawyers Association



Payment of claims did not lead to dramatic increases
I would respectfully take great issue with the letter from Mr. Conley and Mr. Jeddeloh, partners at Arnstein & Lehr, LLP, ("Importance of Case that Challenges Reform Law," Dec. 8. 2009).

They resurrect and parrot the now clearly debunked myth that the "healthcare access crisis, [is] due to excessive medical litigation and rapid growth in verdicts" . Their claim that they "personally observed the exodus of physicians", particularly in southern Illinois, smacks of familiar unsupported anecdotes which helped feed the frenzy leading to cap legislation in 2005. The fact is that states with caps do not have more doctors. In fact, the number of doctors in Illinois has increased statewide every year since 1963, in total, per capita and for specialists like neurosurgeons and ob/gyns. Illinois' growth in physician supply has even outpaced its neighbors that have damage caps.

The fact is that payment of claims did not lead to dramatic increases in malpractice premiums because there was no increase in claims. Over the last decade Illinois malpractice claims and payments have been relatively stable if not declining in frequency and severity, even in Cook, Madison and St. Clair counties, in contrast to their undeserved slandering as "judicial hellholes". The net result of the premium increases was record insurance company profits and gold-plated compensation packages for insurance executives. And the Congressional Budget Office estimates of health care costs related to medical liability reform makes for a nice sound bite but rests on extremely shaky ground- the studies cited by the CBO actually reach the opposite conclusion .

The only positive in the 2005 legislation was the insurance industry regulation which had been strongly resisted by ISMIE, the predominant physician insurer in the state of Illinois and the number one cheerleader for tort reform and caps. For the first time ISMIE was required to publicly disclose its underwriting and actuarial data. As authoritatively pronounced by Michael McRaith , the Director of the Illinois Department of Insurance, "more [malpractice insurance] companies are looking at Illinois as a viable marketplace because of the availability of this data".

It is not just a "suggestion" of opponents that caps violate our constitution. The Illinois Supreme Court has held as such most recently in 1997. If the Court follows precedent and invalidates the entire legislation because of the unconstitutional cap, the effective insurance reforms -which have not been challenged as being unconstitutional- could and should be immediately re-enacted.

We are subjected yet again to self-serving myths and disregard of constitutional precedent that we heard from other shills for the insurance industry in 2005, 1995, 1985 and 1975. The Court has previously heard these arguments in the appropriate forum- there is nothing new or true about these assertions, and no one should take them seriously any more.

Keith A. Hebeisen
Past President
Illinois Trial Lawyers Association