SB3439 97TH GENERAL ASSEMBLY

LRB097 15944 AJO 62356 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB3439

Introduced 2/7/2012, by Sen. Kirk W. Dillard

SYNOPSIS AS INTRODUCED:

735 ILCS 5/2-622	from Ch. 110, par. 2-622
735 ILCS 5/2-1303	from Ch. 110, par. 2-1303
735 ILCS 5/2-1704.5
735 ILCS 5/8-1901	from Ch. 110, par. 8-1901
735 ILCS 5/8-2501	from Ch. 110, par. 8-2501
745 ILCS 49/30

Amends the Code of Civil Procedure and the Good Samaritan Act to reenact certain provisions of Public Act 94-677, which was declared to be unconstitutional. Includes explanatory and validation provisions. Makes changes relating to the reenactment. Also makes these substantive changes: Amends the Code of Civil Procedure to lower the rate of interest payable on judgments; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment. Includes an inseverability provision. Effective immediately.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Findings; purpose; text and revisory changes; validation; additional material.

(a) The Illinois Supreme Court, in Lebron v. Gottlieb Memorial Hospital, found that the limitations on noneconomic damages in medical malpractice actions that were created in Public Act 94-677, contained in Section 2-1706.5 of the Code of Civil Procedure, violate the separation of powers clause of the Illinois Constitution. Because Public Act 94-677 contained an inseverability provision, the Court held the Act to be void in its entirety. The Court emphasized, however, that "because the other provisions contained in Public Act 94-677 are deemed invalid solely on inseverability grounds, the legislature remains free to reenact any provisions it deems appropriate".

(b) It is the purpose of this Act to reenact certain provisions of Public Act 94-677 that did not involve limitations on noneconomic damages in medical malpractice actions and to validate certain actions taken in reliance on those provisions.

(c) This Act reenacts (i) Sections 2-622, 2-1704.5, 8-1901, and 8-2501 of the Code of Civil Procedure and (ii) Section 30 of the Good Samaritan Act. In those Sections, certain effective date references and applicability provisions have been changed to reflect the reenactment. This Act does not reenact any other provisions of Public Act 94-677.

(d) In this Act, the base text of the reenacted Sections is set forth as it existed at the time of the Supreme Court's decision, including any amendments that occurred after P.A. 94-677. Striking and underscoring is used only to show the changes being made to that base text.

(e) All otherwise lawful actions taken in reasonable reliance on or pursuant to the Sections reenacted by this Act, as set forth in Public Act 94-677 or subsequently amended, by any officer, employee, agency, or unit of State or local government or by any other person or entity, are hereby validated.

With respect to actions taken in relation to matters arising under the Sections reenacted by this Act, a person is rebuttably presumed to have acted in reasonable reliance on and pursuant to the provisions of Public Act 94-677, as those provisions had been amended at the time the action was taken.

With respect to their administration of matters arising under the Sections reenacted by this Act, officers, employees, agencies, and units of State and local government shall continue to apply the provisions of Public Act 94-677, as those provisions had been amended at the relevant time.

(f) This Act also contains material making new substantive changes. It amends Sections 2-1303 and 8-2006 of the Code of Civil Procedure to lower the rate of interest payable on judgments; to provide for annual indexing of those rates; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment.

Section 5. The Code of Civil Procedure is amended by reenacting and changing Sections 2-622, 2-1704.5, 8-1901, and 8-2501 and by changing Sections 2-1303 and 8-2006 as follows:

(735 ILCS 5/2-622) (from Ch. 110, par. 2-622)

Sec. 2-622. Healing art malpractice.

(a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 5 years or teaches or has taught within the last 5 years in the same area of health care or medicine that is at issue in the particular action; and (iii) meets the expert witness standards set forth in paragraphs (a) through (d) of Section 8-2501; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action. A single written report must be filed to cover each defendant in the action. As to defendants who are individuals, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For written reports filed as to all other defendants, who are not individuals, the written report must be from a physician licensed to practice medicine in all its branches who is qualified by experience with the standard of care, methods, procedures and treatments relevant to the allegations at issue in the case. In either event, the written report must identify the profession of the reviewing health professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, including the reviewing health care professional's name, address, current license number, and state of licensure, must be attached to the affidavit. Information regarding the preparation of a written report by the reviewing health professional shall not be used to discriminate against that professional in the issuance of medical liability insurance or in the setting of that professional's medical liability insurance premium. No professional organization may discriminate against a reviewing health professional on the basis that the reviewing health professional has prepared a written report.

2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the affidavit and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. No additional 90-day extensions pursuant to this paragraph shall be granted, except where there has been a withdrawal of the plaintiff's counsel. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with an affidavit and a report required by paragraph 1.

3. That a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to Part 20 of Article VIII of this Code and the party required to comply under those Sections has failed to produce such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the affidavit and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. All defendants except those whose failure to comply with Part 20 of Article VIII of this Code is the basis for an affidavit under this paragraph shall be excused from answering or otherwise pleading until 30 days after being served with the affidavit and report required by paragraph 1.

(b) Where an affidavit and written report are required pursuant to this Section a separate affidavit and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.

(c) Where the plaintiff intends to rely on the doctrine of "res ipsa loquitur", as defined by Section 2-1113 of this Code, the affidavit and written report must state that, in the opinion of the reviewing health professional, negligence has occurred in the course of medical treatment. The affiant shall certify upon filing of the complaint that he is relying on the doctrine of "res ipsa loquitur".

(d) When the attorney intends to rely on the doctrine of failure to inform of the consequences of the procedure, the attorney shall certify upon the filing of the complaint that the reviewing health professional has, after reviewing the medical record and other relevant materials involved in the particular action, concluded that a reasonable health professional would have informed the patient of the consequences of the procedure.

(e) Allegations and denials in the affidavit, made without reasonable cause and found to be untrue, shall subject the party pleading them or his attorney, or both, to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with reasonable attorneys' fees to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal. In no event shall the award for attorneys' fees and expenses exceed those actually paid by the moving party, including the insurer, if any. In proceedings under this paragraph (e), the moving party shall have the right to depose and examine any and all reviewing health professionals who prepared reports used in conjunction with an affidavit required by this Section.

(f) A reviewing health professional who in good faith prepares a report used in conjunction with an affidavit required by this Section shall have civil immunity from liability which otherwise might result from the preparation of such report.

(g) The failure of the plaintiff to file an affidavit and report in compliance with this Section shall be grounds for dismissal under Section 2-619.

(h) This Section does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.

(i) This amendatory Act of 1997 does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.

(j) The changes to this Section made by Public Act 94-677 and reenacted by this amendatory Act of the 97th 94th General Assembly apply to causes of action accruing on or after August 25, 2005, as those changes may be amended from time to time its effective date.

(Source: P.A. 94-677, eff. 8-25-05.)

(735 ILCS 5/2-1303) (from Ch. 110, par. 2-1303)

Sec. 2-1303. Interest on judgment.

(a) Judgments recovered in any court shall draw interest at the rate that is equal to the rate at issuance on the 10-year United States Treasury Notes most recently issued prior to of 9% per annum from the date of the judgment until satisfied or 1% 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment, except as provided in subsection (b) of this Section. Interest shall be computed and charged only on the unsatisfied portion of the judgment as it exists from time to time. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.

(b) In cases where a federal Medicare lien may exist against the judgment, this statutory interest shall be computed from the day after the federal Medicare program provides confirmation of any lien against the judgment.

(Source: P.A. 85-907.)

(735 ILCS 5/2-1704.5)

Sec. 2-1704.5. Guaranteed payment of future medical expenses and costs of life care.

(a) At any time, but no later than 5 days after a verdict in the plaintiff's favor for a plaintiff's future medical expenses and costs of life care is reached, either party in a medical malpractice action may elect, or the court may enter an order, to have the payment of the plaintiff's future medical expenses and costs of life care made under this Section.

(b) In all cases in which a defendant in a medical malpractice action is found liable for the plaintiff's future medical expenses and costs of care, the trier of fact shall make the following findings based on evidence presented at trial:

(1) the present cash value of the plaintiff's future medical expenses and costs of life care;

(2) the current year annual cost of the plaintiff's future medical expenses and costs of life care; and

(3) the annual composite rate of inflation that should be applied to the costs specified in item (2).

Based upon evidence presented at trial, the trier of fact may also vary the amount of future costs under this Section from year to year to account for different annual expenditures, including the immediate medical and life care needs of the plaintiff. The jury shall not be informed of an election to pay for future medical expenses and costs of life care by purchasing an annuity.

(c) When an election is made to pay for future medical expenses and costs of life care by purchasing an annuity, the court shall enter a judgment ordering that the defendant pay the plaintiff an amount equal to 20% of the present cash value of future medical expenses and cost of life care determined under subsection (b)(1) of this Section and ordering that the remaining future expenses and costs be paid by the purchase of an annuity by or on behalf of the defendant from a company that has itself, or is irrevocably supported financially by a company that has, at least 2 of the following 4 ratings: "A+ X" or higher from A.M. Best Company; "AA-" or higher from Standard & Poor's; "Aa3" or higher from Moody's; and "AA-" or higher from Fitch. The annuity must guarantee that the plaintiff will receive annual payments equal to 80% of the amount determined in subsection (b)(2) inflated by the rate determined in subsection (b)(3) for the life of the plaintiff.

(d) If the company providing the annuity becomes unable to pay amounts required by the annuity, the defendant shall secure a replacement annuity for the remainder of the plaintiff's life from a company that satisfies the requirements of subsection (c).

(e) A plaintiff receiving future payments by means of an annuity under this Section may seek leave of court to assign or otherwise transfer the right to receive such payments in exchange for a negotiated lump sum value of the remaining future payments or any portion of the remaining future payments under the annuity to address an unanticipated financial hardship under such terms as approved by the court.

(f) This Section applies to all causes of action accruing on or after August 25, 2005 the effective date of this amendatory Act of the 94th General Assembly.

(Source: P.A. 94-677, eff. 8-25-05.)

(735 ILCS 5/8-1901) (from Ch. 110, par. 8-1901)

Sec. 8-1901. Admission of liability - Effect.

(a) The providing of, or payment for, medical, surgical, hospital, or rehabilitation services, facilities, or equipment by or on behalf of any person, or the offer to provide, or pay for, any one or more of the foregoing, shall not be construed as an admission of any liability by such person or persons. Testimony, writings, records, reports or information with respect to the foregoing shall not be admissible in evidence as an admission of any liability in any action of any kind in any court or before any commission, administrative agency, or other tribunal in this State, except at the instance of the person or persons so making any such provision, payment or offer.

(b) Any expression of grief, apology, or explanation provided by a health care provider, including, but not limited to, a statement that the health care provider is "sorry" for the outcome to a patient, the patient's family, or the patient's legal representative about an inadequate or unanticipated treatment or care outcome that is provided within 72 hours of when the provider knew or should have known of the potential cause of such outcome shall not be admissible as evidence in any action of any kind in any court or before any tribunal, board, agency, or person. The disclosure of any such information, whether proper, or improper, shall not waive or have any effect upon its confidentiality or inadmissibility. As used in this Section, a "health care provider" is any hospital, nursing home or other facility, or employee or agent thereof, a physician, or other licensed health care professional. Nothing in this Section precludes the discovery or admissibility of any other facts regarding the patient's treatment or outcome as otherwise permitted by law.

(c) The changes to this Section made by Public Act 94-677 and reenacted by this amendatory Act of the 97th 94th General Assembly apply to causes of action accruing on or after August 25, 2005, as those changes may be amended from time to time its effective date.

(Source: P.A. 94-677, eff. 8-25-05.)

(735 ILCS 5/8-2501) (from Ch. 110, par. 8-2501)

Sec. 8-2501. Expert Witness Standards. In any case in which the standard of care applicable to a medical professional is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.

(a) Whether the witness is board certified or board eligible, or has completed a residency, in the same or substantially similar medical specialties as the defendant and is otherwise qualified by significant experience with the standard of care, methods, procedures, and treatments relevant to the allegations against the defendant;

(b) Whether the witness has devoted a majority of his or her work time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains;

(c) whether the witness is licensed in the same profession with the same class of license as the defendant if the defendant is an individual; and

(d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State.

An expert shall provide evidence of active practice, teaching, or engaging in university-based research. If retired, an expert must provide evidence of attendance and completion of continuing education courses for 3 years previous to giving testimony. An expert who has not actively practiced, taught, or been engaged in university-based research, or any combination thereof, during the preceding 5 years may not be qualified as an expert witness.

The changes to this Section made by Public Act 94-677 and reenacted by this amendatory Act of the 97th 94th General Assembly apply to causes of action accruing on or after August 25, 2005, as those changes may be amended from time to time its effective date.

(Source: P.A. 94-677, eff. 8-25-05.)

Section 10. The Good Samaritan Act is amended by reenacting and changing Section 30 as follows:

(745 ILCS 49/30)

Sec. 30. Free medical clinic; exemption from civil liability for services performed without compensation.

(a) A person licensed under the Medical Practice Act of 1987, a person licensed to practice the treatment of human ailments in any other state or territory of the United States, or a health care professional, including but not limited to an advanced practice nurse, retired physician, physician assistant, nurse, pharmacist, physical therapist, podiatrist, or social worker licensed in this State or any other state or territory of the United States, who, in good faith, provides medical treatment, diagnosis, or advice as a part of the services of an established free medical clinic providing care, including but not limited to home visits, without charge to patients which is limited to care that does not require the services of a licensed hospital or ambulatory surgical treatment center and who receives no fee or compensation from that source shall not be liable for civil damages as a result of his or her acts or omissions in providing that medical treatment, except for willful or wanton misconduct.

(b) For purposes of this Section, a "free medical clinic" is an organized community based program providing medical care without charge to individuals, at which the care provided does not include an overnight stay in a health-care facility.

(c) The provisions of subsection (a) of this Section do not apply to a particular case unless the free medical clinic has posted in a conspicuous place on its premises an explanation of the exemption from civil liability provided herein.

(d) The immunity from civil damages provided under subsection (a) also applies to physicians, retired physicians, hospitals, and other health care providers that provide further medical treatment, diagnosis, or advice, including but not limited to hospitalization, office visits, and home visits, to a patient upon referral from an established free medical clinic without fee or compensation.

(d-5) A free medical clinic may receive reimbursement from the Illinois Department of Public Aid, provided any reimbursements shall be used only to pay overhead expenses of operating the free medical clinic and may not be used, in whole or in part, to provide a fee or other compensation to any person licensed under the Medical Practice Act of 1987 or any other health care professional who is receiving an exemption under this Section. Any health care professional receiving an exemption under this Section may not receive any fee or other compensation in connection with any services provided to, or any ownership interest in, the clinic. Medical care shall not include an overnight stay in a health care facility.

(e) Nothing in this Section prohibits a free medical clinic from accepting voluntary contributions for medical services provided to a patient who has acknowledged his or her ability and willingness to pay a portion of the value of the medical services provided.

(f) Any voluntary contribution collected for providing care at a free medical clinic shall be used only to pay overhead expenses of operating the clinic. No portion of any moneys collected shall be used to provide a fee or other compensation to any person licensed under Medical Practice Act of 1987.

(g) The changes to this Section made by Public Act 94-677 and reenacted by this amendatory Act of the 97th 94th General Assembly apply to causes of action accruing on or after August 25, 2005, as those changes may be amended from time to time its effective date.

(Source: P.A. 94-677, eff. 8-25-05.)

Section 97. Inseverability. The provisions of this Act are mutually dependent and inseverable. If any provision is held invalid, then this entire Act, including all new and amendatory provisions, is invalid.

Section 99. Effective date. This Act takes effect upon becoming law.