Tuesday, November 21, 2006

Now It Gets Interesting

Everybody knew that it was coming, the only question was when. The answer is now. From Crain's:
Trial lawyers on Monday filed a much-anticipated lawsuit seeking to overturn the law that limits jury awards for medical malpractice victims.

The plaintiff in the suit alleges a doctor at Gottlieb Memorial Hospital in west suburban Melrose Park botched the delivery of her daughter in October 2005. The 13-month-old suffered permanent brain damage from of lack of oxygen during delivery and must be fed through a tube, the lawsuit says.

As I have previously stated, while I believe that there is a shortage of doctors in parts of our state, and while I agree that malpractice rates are higher than they should be, I do not believe that either of these facts were caused by our previously-existing malpractice laws.

It has been a bedrock principle of our legal system to have faith in an empaneled jury to assess and award damages in tort cases. To artificially limit such awards in an arbitrary manner is an unwarranted deviation from this core principle that was driven by politics and economics rather than any sense of constitutionality or jurisprudential logic.

For those who support the caps, I hope that the legal briefs that are filed on your behalf proffer a better argument than this one:

“If this rollback succeeds, it will drive doctors from the state and medical care costs will skyrocket,” Peter Eupierre, president of the Illinois State Medical Society, said in a statement.

It's safe to say that all sides are eager to see this issue litigated and resolved by the courts. And while that resolution won't come quickly, it's a good bet that whatever the court decides, this issue is far from over.


At November 20, 2006 at 11:43 PM, Anonymous just asking said...

If the whole point of punitive damages is to deter bad conduct, what does it say about our state when we essentially tell docs that no matter how bad their actions, we won't hold them fully responsible?

At November 21, 2006 at 12:29 AM, Blogger Lovie's Leather said...

Here is my problem... if the Doc didn't do something on purpose or illegal, why should any damages be awarded? Stuff happens, things go wrong. I don't see why we need to punish somebody and reward somebody else because of circumstances out of control. That being said, if the doctor did something that he knew was wrong, that is a different story... but aren't there "good samaritan" laws in Illinois???

At November 21, 2006 at 7:19 AM, Anonymous Anonymous said...

Hon. Fritchey,
Your position on this is NOT centrist. Funny how these cases are always about babies. What could be better for eliciting an emotional reaction from an uneducated jury.

At November 21, 2006 at 8:36 AM, Blogger Hon. John Fritchey said...


The cases in which you see large damage awards aren't the ones where despite the doctor's best efforts, something went wrong. They are cases in which the standard of care was wholly missed.

I assure you that the defense in these cases does a vigorous job of asserting to a jury that the doctor acted properly. But there are some factual situations in which the medical staff was clearly wrong in their actions that a jury is compelled to not only find them liable but to assess punitive damages at a level that addresses such malfeasance.

At November 21, 2006 at 8:39 AM, Blogger Hon. John Fritchey said...

just asking,

You are entirely correct. From an economic standpoint, the nature of punitive damages is to attempt to guide behavior through deterrence. Capping damages in these types of cases strips these damages of both their intent and impact.

At November 21, 2006 at 8:42 AM, Blogger Hon. John Fritchey said...

Anon 7:19,

This is not about political labels, it's about intellectual honesty. As far as your comment about the babies. I assure you that juries can be just as moved when hearing about an adult who has the wrong limb removed by a negligent doctor, or by the young mother who unnecessarily gets a mastectomy because a doctor misread her x-ray.

And why is it that a jury that finds for the defense is a rational one, while the one that finds wrongdoing is 'uneducated'?

At November 21, 2006 at 9:15 AM, Blogger Bill said...

To paraphrase a great statesman,
"...Its not fair, its not right and its not legal...".
Let's hope that the courts are more unbiased and insightful than the Legislature.

At November 21, 2006 at 9:18 AM, Anonymous Anonymous said...

Ok. Scratch the uneducated remark. My point about the political label is this. Centrists think that solutions to problems are seldom perfect, otherwise there would be no problems. It is often necessary to choose the least worst course of action. It's all about setting reasonable intelligent limits. Idealogues don't seem to get it.

At November 21, 2006 at 11:21 AM, Blogger cermak_rd said...

If a jury can't be trusted to decide damages, then why are we trusting them to decide life or death in capital crimes? Why are we asking them to decide guilt or innocence? I find it telling that the reliability of juries is only questioned when it comes to dollars. People's lives not being paramount.

At November 21, 2006 at 1:08 PM, Blogger Hon. John Fritchey said...


Considering caps to be a 'reasonable intelligent limit' that solves a problem assumes that you believe that the doctor shortage/insurance rate issue is driven by malpractice awards.

Having overseen countless hours of testimony on the subject, I don't believe that that is the case.

In fact, I think that a number of legislators who voted for the caps also don't believe there to be a connection, rather they felt that they were casting a vote for political survival.

At November 21, 2006 at 1:45 PM, Anonymous Anonymous said...

The doctor shortage/ insurance rate issue is not the problem that primarily concerns me, although it is a fact that the escalating insurance rates drives up all of our health care costs, and that is a crisis. Mainly, I don't think that a good doctor should have to play russian roulette just by doing his job. It's just unfair, and it affects all professions.
In criminal cases, it takes cooperation of numerous parties to get a conviction and lots of bad cases get filtered. That's not the case with malpractice.

At November 24, 2006 at 11:58 PM, Anonymous Anonymous said...

Where did you get the 'constitutional goatse' image from?


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