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1 | AN ACT concerning medical malpractice.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the | ||||||||||||||||||||||||
5 | Medical Malpractice Pre-Trial Review Act. | ||||||||||||||||||||||||
6 | Section 5. Public policy.
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7 | (a) The goal of this Act is to deter or eliminate nuisance | ||||||||||||||||||||||||
8 | lawsuits and to encourage parties to settle meritorious claims | ||||||||||||||||||||||||
9 | of medical malpractice. | ||||||||||||||||||||||||
10 | (b) Pre-trial reviews identify claims of professional | ||||||||||||||||||||||||
11 | negligence that merit compensation. | ||||||||||||||||||||||||
12 | (c) Pre-trial reviews identify claims that are without | ||||||||||||||||||||||||
13 | merit and should not be lawsuits in court. | ||||||||||||||||||||||||
14 | (d) There is currently a medical malpractice crisis in | ||||||||||||||||||||||||
15 | Illinois that is driving physicians and other health providers | ||||||||||||||||||||||||
16 | out of this State. Due to the growing number of frivolous | ||||||||||||||||||||||||
17 | lawsuits against health care providers, the costs for health | ||||||||||||||||||||||||
18 | care providers are spiraling out of control and forcing doctors | ||||||||||||||||||||||||
19 | to move to other states. | ||||||||||||||||||||||||
20 | Section 10. Definitions.
As used in this Act: | ||||||||||||||||||||||||
21 | "Health care provider" means a person who is licensed, | ||||||||||||||||||||||||
22 | certified, or otherwise authorized or permitted by the law of | ||||||||||||||||||||||||
23 | this State to administer health care in the ordinary course of | ||||||||||||||||||||||||
24 | business or practice of a profession including, but not limited | ||||||||||||||||||||||||
25 | to, a physician, nurse, health care facility, and any employee, | ||||||||||||||||||||||||
26 | officer, director, agent, or person under contract with such a | ||||||||||||||||||||||||
27 | person. | ||||||||||||||||||||||||
28 | "Review" means the Medical Malpractice Pre-Trial Review. | ||||||||||||||||||||||||
29 | Section 15. Applicability. The Medical Malpractice | ||||||||||||||||||||||||
30 | Pre-Trial Review shall consider any claim involving alleged |
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1 | malpractice occurring in Illinois by a health care provider. | ||||||
2 | Section 20. Formation and selection of Review. | ||||||
3 | (a) The Review shall consist of one attorney admitted to | ||||||
4 | practice law in this State and 3 physicians licensed to | ||||||
5 | practice medicine under the Medical Practice Act of 1987. The | ||||||
6 | attorney shall act in an advisory capacity and as Chairperson | ||||||
7 | of the Review, but shall have no vote. | ||||||
8 | (b) The Review shall be selected from among all physicians | ||||||
9 | engaged in the active practice of medicine in this State, | ||||||
10 | whether in the teaching profession or otherwise, who hold a | ||||||
11 | license to practice medicine in this State in the following | ||||||
12 | manner: | ||||||
13 | (1) Each party to the action shall have the right to | ||||||
14 | select one physician and, upon selection, the physician | ||||||
15 | shall be required to serve, except as provided in item (3) | ||||||
16 | of this Section. The 2 physicians shall then select the | ||||||
17 | third physician for the Review. If one of parties involved | ||||||
18 | is a hospital, a fourth member who is a hospital | ||||||
19 | administrator shall be selected by the hospital. | ||||||
20 | (2) When there are multiple plaintiffs or defendants, | ||||||
21 | there shall be only one physician or hospital administrator | ||||||
22 | picked per side. The plaintiff, whether single or multiple, | ||||||
23 | shall have the right to select one physician. | ||||||
24 | (3) A Review member so selected shall serve, except | ||||||
25 | that for good cause shown he or she may be excused. To show | ||||||
26 | good cause for relief from serving, the Review member shall | ||||||
27 | be required to serve an affidavit upon a judge of a court | ||||||
28 | having jurisdiction over the claim when filed. The | ||||||
29 | affidavit shall set out the facts showing that service | ||||||
30 | would constitute an unreasonable burden or undue hardship. | ||||||
31 | The judge may excuse the proposed Review member from | ||||||
32 | serving. | ||||||
33 | (4) Within 20 days after receipt of notification of a | ||||||
34 | proposed Review member by the plaintiff, the defendants | ||||||
35 | shall select a proposed Review member and advise the |
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1 | plaintiff or his or her attorney. | ||||||
2 | (5) Within 20 days of receipt of notice of selection, | ||||||
3 | written challenge without cause may be made to the Review | ||||||
4 | member. Upon challenge, a party shall select another Review | ||||||
5 | member. If multiple plaintiffs or defendants are unable to | ||||||
6 | agree on a physician Review member, or if 2 challenges are | ||||||
7 | made and submitted, the judge shall submit a list | ||||||
8 | consisting of 3 qualified Review members and each side | ||||||
9 | shall strike one and the remaining member shall serve in | ||||||
10 | the place of the challenged Review member designated by the | ||||||
11 | party. | ||||||
12 | (6) The Parties may agree on the attorney member of the | ||||||
13 | board or, if no agreement can be reached, then 5 proposed | ||||||
14 | attorney members shall be designated by the judge having | ||||||
15 | jurisdiction of the cause. The parties shall then each | ||||||
16 | strike 2 names alternatively with the plaintiff striking | ||||||
17 | first until both sides have stricken 2 names and the | ||||||
18 | remaining name shall be the attorney member of the Review. | ||||||
19 | (c) If the members of the Review have not been selected | ||||||
20 | within 150 days of filing the claim, the court shall have | ||||||
21 | authority to select members of the Review and to set a specific | ||||||
22 | date for the hearing. | ||||||
23 | Section 25. Submission of claims. | ||||||
24 | (a) Once a lawsuit is filed with the Circuit Court for | ||||||
25 | medical malpractice, the case shall be automatically sent to | ||||||
26 | the Review. | ||||||
27 | (b) At the time of filing the lawsuit, the plaintiff shall | ||||||
28 | pay to the Review a filing fee of $100. | ||||||
29 | (c) Within 20 days of receipt of the Review receiving the | ||||||
30 | claim, each defendant in the notice or his or her | ||||||
31 | representative shall file an appearance with the Review and | ||||||
32 | send a copy to the plaintiff. At the time of filing, each | ||||||
33 | defendant shall each pay a fee of $100 for entering an | ||||||
34 | appearance per notice filed to the Review. | ||||||
35 | (d) The filing fee or the fee for entering an appearance |
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1 | may be waived under the following circumstances: | ||||||
2 | (1) the party is indigent; | ||||||
3 | (2) the party is or was an employee of another party | ||||||
4 | and that other party stipulates that the employee at the | ||||||
5 | time of the claimed injury was acting in the course and | ||||||
6 | scope of employment with that other party; or | ||||||
7 | (3) the waiver is necessary to avoid requiring an | ||||||
8 | individual who is a party to the case from paying 2 or more | ||||||
9 | filing fees because a professional association or other | ||||||
10 | business entity of which the individual is a member is also | ||||||
11 | named as a party and has substantially the same interests | ||||||
12 | as the individual in the case. | ||||||
13 | (e) Within 20 days of entry of appearance, each defendant | ||||||
14 | shall contact the plaintiff's counsel and by agreement shall | ||||||
15 | designate a timetable for filing all the relevant medical and | ||||||
16 | provider records necessary to a determination of the Review and | ||||||
17 | for completing discovery. If the parties are unable to agree on | ||||||
18 | a timetable within 60 days of the entry of appearance, the | ||||||
19 | plaintiff shall notify the Chairperson of the Review. The | ||||||
20 | Chairperson shall then establish a timetable for the filing of | ||||||
21 | all relevant records and reasonable discovery, which must be | ||||||
22 | filed at least 30 days before any hearing date. The hearing may | ||||||
23 | not be later than 6 months from the service of the notice of | ||||||
24 | claim upon the clerk, except when the time period has been | ||||||
25 | extended by the Review Chairperson in accordance with this | ||||||
26 | Section. | ||||||
27 | (f) All requests for extension of time must be made to the | ||||||
28 | Review Chairperson. The Chairperson may extend any time period | ||||||
29 | for good cause, except that the Chairperson may not extend any | ||||||
30 | time period that would result in the hearing being held more | ||||||
31 | than one year from the filing of notice of claim upon the clerk | ||||||
32 | unless good cause is shown. | ||||||
33 | (g) Except as otherwise as provided in this subsection, | ||||||
34 | there shall be one combined hearing for all claims under this | ||||||
35 | Section arising out of the same set of facts. Where there is | ||||||
36 | one person accused of professional negligence against whom a |
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1 | notice of claim has been filed based on the same facts, the | ||||||
2 | parties may, upon agreement of all parties, require that | ||||||
3 | hearings be separated. The Chairperson may, for good cause, | ||||||
4 | order separate hearings. | ||||||
5 | (h) If the Circuit Court dismisses the lawsuit, the action | ||||||
6 | before the Review may be dismissed by the plaintiff by filing a | ||||||
7 | notice of dismissal at any time prior to the appointment of the | ||||||
8 | Review or by filing a stipulation of dismissal signed by all | ||||||
9 | parties who have appeared in the action. Unless otherwise | ||||||
10 | stated in the notice of dismissal, stipulation, or order, the | ||||||
11 | dismissal is without prejudice. | ||||||
12 | (i) Except as provided in subsection (h), an action shall | ||||||
13 | not be dismissed on the plaintiff's motion except on order of | ||||||
14 | the Chairperson of the Review and on terms and conditions the | ||||||
15 | Chairperson deems proper. | ||||||
16 | (j) Upon failure of the plaintiff to prosecute or to comply | ||||||
17 | with rules or any order of the Chairperson, and upon a motion | ||||||
18 | by the Chairperson or any party, after notice to all parties | ||||||
19 | has been given and the party against whom sanctions are | ||||||
20 | proposed has had the opportunity to be heard and show good | ||||||
21 | cause, the Chairperson may order appropriate sanctions, which | ||||||
22 | may include dismissal of the case. If any sanctions are | ||||||
23 | imposed, the Chairperson shall state the sanctions in writing | ||||||
24 | and include the grounds for the sanctions. The involuntary | ||||||
25 | dismissal shall be ruled a case without merit, and will be | ||||||
26 | noted in the findings of the Review. | ||||||
27 | (k) Unless the Chairperson or the Review in an order for | ||||||
28 | dismissal specifies otherwise, a dismissal under subsection | ||||||
29 | (j) is with prejudice for purposes of proceedings before the | ||||||
30 | Review. A dismissal with prejudice is deemed to be the | ||||||
31 | equivalent of a finding for the defendant on all issues before | ||||||
32 | the Review. | ||||||
33 | (l) Upon the failure of a defendant to comply with the | ||||||
34 | rules or any order of the Chairperson, and upon the motion by | ||||||
35 | the Chairperson or any party, after notice to all parties has | ||||||
36 | been given and the party against whom sanctions are proposed |
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1 | has had the opportunity to be heard and show good cause, the | ||||||
2 | Chairperson may order appropriate sanctions, which may include | ||||||
3 | default. If any sanctions are imposed, the Chairperson shall | ||||||
4 | state the sanctions in writing and include the grounds for the | ||||||
5 | sanctions. Unless the Chairperson or the Review in its order | ||||||
6 | for default specifies otherwise, a default under this | ||||||
7 | subsection (l) is deemed to be the equivalent of a finding | ||||||
8 | against the defendant on all issues before the Review.
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9 | Section 30. Hearings. | ||||||
10 | (a) The plaintiff or a representative of the plaintiff | ||||||
11 | shall present the case before the Review. The defendant or | ||||||
12 | defendant's representative shall make a responding | ||||||
13 | presentation. Wide latitude shall be afforded the parties by | ||||||
14 | the Review in the conduct of the hearing including, but not | ||||||
15 | limited to, the right of examination and cross-examination by | ||||||
16 | attorneys. The Chairperson shall make all procedural rulings | ||||||
17 | and those rulings are final. The rules of evidence do not | ||||||
18 | apply. Evidence must be admitted if it is the kind of evidence | ||||||
19 | upon which reasonable persons are accustomed to rely in the | ||||||
20 | conduct of serious affairs. The Review shall make its findings | ||||||
21 | based upon the evidence as it is presented at the hearing, the | ||||||
22 | records, and any expert opinions provided by or sought by the | ||||||
23 | Review or the parties. | ||||||
24 | (b) After presentation by the parties, as provided in this | ||||||
25 | Section, the Review may request from either party additional | ||||||
26 | facts, records, or other information to be submitted in writing | ||||||
27 | or at a continued hearing. The continued hearing must be held | ||||||
28 | as soon as possible and must be attended by the same members of | ||||||
29 | the Review who have sat on all prior hearings in the same | ||||||
30 | claim, unless otherwise agreed upon by all parties. | ||||||
31 | (c) The evidence may consist of medical charts, x-rays, lab | ||||||
32 | tests, excerpts of treatises, and any other form of evidence | ||||||
33 | allowable by the Review. | ||||||
34 | (d) Except for the introduction into evidence of the report | ||||||
35 | of the Review, all proceedings before the Review, all actions |
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1 | taken by any party or his or her counsel in preparation for the | ||||||
2 | proceedings and the submission of any matter to the Review | ||||||
3 | shall be handled on a confidential basis. The hearing may not | ||||||
4 | be conducted as a public hearing and the proceedings before the | ||||||
5 | Review shall not be matters of public record. | ||||||
6 | (e) Initiation of proceedings before the Review by a | ||||||
7 | patient or his representative shall constitute waiver of any | ||||||
8 | privilege or rights as to any hospital records or testimony or | ||||||
9 | records of any physician or surgeon who is attending or has | ||||||
10 | attended the patient for physical or mental conditions or | ||||||
11 | injuries or conditions involved in the proceeding to the same | ||||||
12 | extent and with like effect. Any witness providing information | ||||||
13 | or facts or opinions to the Review shall be entitled to the | ||||||
14 | immunities and protection provided to witnesses generally in | ||||||
15 | court proceedings. | ||||||
16 | (f) The Review shall maintain a tape recorded record. | ||||||
17 | (g) Failure of a party, without good cause, to attend a | ||||||
18 | properly scheduled hearing to participate in authorized | ||||||
19 | discovery, or to otherwise substantially comply with this Act, | ||||||
20 | shall result in a finding made by a majority of the Review | ||||||
21 | against that party and that finding has the same effect as a | ||||||
22 | finding against that party. | ||||||
23 | Section 35. Powers. The Review, through the Chairperson, | ||||||
24 | shall have subpoena powers as exist for administrative law | ||||||
25 | judges under the Illinois Administrative Code. | ||||||
26 | Section 40. Findings of the Review. The findings of the | ||||||
27 | Review are admissible at trial as evidence. The findings are | ||||||
28 | non-binding on the parties unless both parties agree. | ||||||
29 | Section 45. Effect of findings. The Review shall issue | ||||||
30 | findings as to whether or not the claim filed is meritorious or | ||||||
31 | does not reach the level of professional negligence. | ||||||
32 | Section 50. Statute of limitations; tolling. The running of |
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1 | the applicable limitation period in a medical malpractice claim | ||||||
2 | shall be tolled upon submission of the case for the | ||||||
3 | consideration of the Review and shall not commence to run again | ||||||
4 | until 30 days after the Review's final decision is entered in | ||||||
5 | the permanent files of the Review and a copy is served upon the | ||||||
6 | plaintiff and his or her attorney by certified mail.
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7 | Section 99. Effective date. This Act takes effect upon | ||||||
8 | becoming law.
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