Dem majority on state supreme court scuttles tort reform

The Illinois Supreme Court
demonstrated last week that it takes the "supreme" in its name all too
seriously, as it struck down with divine certainty one of the best
things that the Illinois Legislature has done recently: tort reform. The
court's rationalization for its odious decision amounts to little more
than "because we can."

What it struck down was a 2005 law that
capped intangible damages in medical malpractice cases at $500,000
against doctors and $1 million against hospitals, much as a bunch of
other states have already done.

The law ended ridiculously high noneconomic (e.g. pain, suffering and loss of consortium or society) awards handed out in Illinois malpractice suits, especially in downstate Madison County, the malpractice lawyer's mecca. The law was effective, helping reduce medical costs and stemming the departure of Illinois health care providers because of excessively high malpractice insurance costs.

The high court majority said that mattered not. The court killed the law because it said it violated the state constitution's separation-of-powers provision that "(n)o branch shall exercise powers properly belonging to another." The court said the law infringed on the power of the judiciary to decide, case by case, the appropriateness of noneconomic damages awarded by the jury's "careful deliberative process." The Legislature, the court said, was trying to impose "a one-size-fits-all" approach.

The opinion in Lebron vs. Gottlieb Memorial Hospital, written by Chief Justice Thomas Fitzgerald, waved away counterarguments that the Legislature's right and obligation to set public policy in the wider interests of restraining health care costs allowed it to set reasonable damage levels. Fitzgerald insulted dissenting Justice Lloyd Karmeier for the "emotional and political rhetoric that peppers (his) dissent." Our job, the majority said, is to weigh the law, not to set public policy.

I couldn't agree more. But Fitzgerald blithely ignores the fact that the majority has set public policy by deciding on flimsy legal grounds that the Legislature cannot address the outrageous and destructive practice of excessive noneconomic damages. Fitzgerald can pretend all he wants to, but the policy that he has set is this: The sky is the limit for noneconomic damages.

And despite Fitzgerald's obeisance to the principle of separation of powers, he raises the judiciary above the Legislature by claiming that, in this matter, only the judiciary has a say. I would prescribe for Fitzgerald a dose of the political philosopher Montesquieu for a better understanding of the separation-of-power principle that undergirds the federal and state governments.

As Karmeier said in his more readable and logical dissent: "In my view, the majority's opinion today flatly violates (the separation-of-powers principle). While my colleagues purport to defend separation of powers principles, it is their decision, not the action of the General Assembly, which constitutes the improper incursion into the power of another branch of government."

Karmeier copiously quoted from other Illinois jurists that the "primary expression of Illinois public and social policy should emanate from the legislature." And this: "The General Assembly, by its very nature, has a superior ability to gather and synthesize data pertinent to the issue. It is free to solicit information and advice from the many public and private organizations that may be impacted. Moreover, it is the only entity with the power to weigh and properly balance the many competing societal, economic, and policy considerations involved." Fitzgerald failed to meet these arguments head-on.

For years, the Legislature -- the people's body -- has debated and toiled over the issue of excessive damage awards. Fitzgerald and the majority have taken the people of Illinois out of  play, with no apparent recourse.

The high court has been fairly immune from suspicions that it operates in the same Illinois way as the legislative and executive branches. Nonetheless, the National Institute on Money in State Politics found in a 2002 study that the cost of running for the Illinois high court has steadily increased and that the largest group of campaign contributors is attorneys. One might also note that the primary beneficiaries of the Lebron decision are lawyers, who rake in big fees from successful malpractice suits.

Not that there's anything wrong with that, this being Illinois.

This column also appeared in the Chicago Tribune

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