SB2382 99TH GENERAL ASSEMBLY

LRB099 15736 HEP 40035 b

99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB2382

Introduced 2/3/2016, by Sen. Jason A. Barickman

SYNOPSIS AS INTRODUCED:

55 ILCS 5/4-11001	from Ch. 34, par. 4-11001
735 ILCS 5/2-622	from Ch. 110, par. 2-622
735 ILCS 5/2-1105	from Ch. 110, par. 2-1105
735 ILCS 5/2-1205	from Ch. 110, par. 2-1205
735 ILCS 5/2-1205.1	from Ch. 110, par. 2-1205.1
735 ILCS 5/2-1303	from Ch. 110, par. 2-1303
735 ILCS 5/8-1901	from Ch. 110, par. 8-1901
735 ILCS 5/Art. VII Pt. 29 heading new
735 ILCS 5/8-2901 new

Amends the Counties Code and the Code of Civil Procedure to reverse the changes made by Public Act 98-1132 concerning jury compensation and composition. Further amends the Code of Civil Procedure. Makes changes in Sections concerning: the filing of affidavits in medical malpractice cases attesting to the merits of the cause of action; reductions in the amount of recovery; interest on judgments; and admissions of liability and expressions of sympathy. Adds provisions concerning the use of federal law pay or guidelines in medical malpractice and medical product liability cases. 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 5. The Counties Code is amended by changing Section 4-11001 as follows:

(55 ILCS 5/4-11001) (from Ch. 34, par. 4-11001)

Sec. 4-11001. Juror fees. Each county shall pay to grand and petit jurors for their services in attending courts the sum of $4 sums of $25 for the first day and thereafter $50 for each day of necessary attendance at such courts as jurors in counties of the first class, the sum of $5 for each day in counties of the second class, and the sum of $10 for each day in counties of the third class, or such higher amount as may be fixed by the county board.

In addition, jurors shall receive such travel expense as may be determined by the county board, provided that jurors in counties of the first class and second class shall receive at least 10 cents per mile for their travel expense. Mileage shall be allowed for travel during a juror's term as well as for travel at the opening and closing of his or her term.

If a judge so orders, a juror shall also receive reimbursement for the actual cost of day care incurred by the juror during his or her service on a jury.

The juror fees for service, transportation, and day care shall be paid out of the county treasury.

The clerk of the court shall furnish to each juror without fee whenever he is discharged a certificate of the number of days' attendance at court, and upon presentation thereof to the county treasurer, he shall pay to the juror the sum provided for his service.

Any juror may elect to waive the fee paid for service, transportation, or day care, or any combination thereof.

(Source: P.A. 97-840, eff. 1-1-13; 98-1132, eff. 6-1-15.)

Section 10. The Code of Civil Procedure is amended by changing Sections 2-622, 2-1105, 2-1205, 2-1205.1, 2-1303, 8-1901, and 8-2501, by re-enacting by adding Part 29 to Article VIII 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 that 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 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; 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. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatric physician, a psychologist, or a naprapath, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit 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, must be attached to the affidavit, but information which would identify the reviewing health professional may be deleted from the copy so attached.

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 certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate 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 certificate 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 certificate required by paragraph 1.

(b) Where a certificate and written report are required pursuant to this Section a separate certificate 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 certificate 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 to file a certificate required by this Section shall result in be grounds for dismissal under Section 2-619.

(h) (Blank).

(i) (Blank).

(Source: P.A. 97-1145, eff. 1-18-13; 98-214, eff. 8-9-13.)

(735 ILCS 5/2-1105) (from Ch. 110, par. 2-1105)

Sec. 2-1105. Jury demand.

(a) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his or her answer. Otherwise, the party waives a jury. If an action is filed seeking equitable relief and the court thereafter determines that one or more of the parties is or are entitled to a trial by jury, the plaintiff, within 3 days from the entry of such order by the court, or the defendant, within 6 days from the entry of such order by the court, may file his or her demand for trial by jury with the clerk of the court. If the plaintiff files a jury demand and thereafter waives a jury, any defendant and, in the case of multiple defendants, if the defendant who filed a jury demand thereafter waives a jury, any other defendant shall be granted a jury trial upon demand therefor made promptly after being advised of the waiver and upon payment of the proper fees, if any, to the clerk.

(b) All jury cases where the claim for damages is $50,000 or less shall be tried by a jury of 6, unless either party demands a jury of 12. If a fee in connection with a jury demand is required by statute or rule of court, the fee for a jury of 6 shall be 1/2 the fee for a jury of 12. A party demanding a jury of 12 after another party has paid the applicable fee for a jury of 6 shall pay the remaining 1/2 of the fee applicable to a jury of 12. If alternate jurors are requested, an additional fee established by the county shall be charged for each alternate juror requested. For all cases filed prior to the effective date of this amendatory Act of the 98th General Assembly, if a party has paid for a jury of 12, that party may demand a jury of 12 upon proof of payment.

(Source: P.A. 98-1132, eff. 6-1-15.)

(735 ILCS 5/2-1205) (from Ch. 110, par. 2-1205)

Sec. 2-1205. Reduction in amount of recovery.

(a) An amount equal to the sum of (i) 50% of the benefits provided for lost wages or private or governmental disability income programs, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, and (ii) 100% of the benefits provided for medical charges, hospital charges, or nursing or caretaking charges, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, shall be deducted from any judgment in an action to recover for that injury based on an allegation of negligence or other wrongful act, not including intentional torts, on the part of a licensed hospital or physician; provided, however, that:

(1) Application is made within 30 days to reduce the judgment;

(2) Such reduction shall not apply to the extent that there is a right of recoupment through subrogation, trust agreement, lien, or otherwise;

(3) The reduction shall not reduce the judgment by more than 50% of the total amount of the judgment entered on the verdict;

(4) The damages awarded shall be increased by the amount of any insurance premiums or the direct costs paid by the plaintiff for such benefits in the 2 years prior to plaintiff's injury or death or to be paid by the plaintiff in the future for such benefits; and

(5) There shall be no reduction for charges paid for medical expenses which were directly attributable to the adjudged negligent acts or omissions of the defendants found liable.

(b) In any proceedings to which this Section applies, the actual amount paid for health care services or to be paid under any health care services insurance or benefit program shall be used to determine the amount of the services and not the billed charges. Nothing is this Code shall be construed to prevent, and the court shall allow, the introduction of evidence of the amount paid by an affidavit or testimony of actual payment received.

(Source: P.A. 84-7.)

(735 ILCS 5/2-1205.1) (from Ch. 110, par. 2-1205.1)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 2-1205.1. Reduction in amount of recovery.

(a) In all cases on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, to which Section 2-1205 does not apply, the amount in excess of $25,000 of the benefits provided for medical charges, hospital charges, or nursing or caretaking charges, which have been paid, or which have become payable by the date of judgment to the injured person by any other insurance company or fund in relation to a particular injury, shall be deducted from any judgment. Provided, however, that:

(1) Application is made within 30 days to reduce the judgment;

(2) Such reduction shall not apply to the extent that there is a right of recoupment through subrogation, trust agreement, contract, lien, operation of law or otherwise;

(3) The reduction shall not reduce the judgment by more than 50% of the total amount of the judgment entered on the verdict; and

(4) The damages awarded shall be increased by the amount of any insurance premiums or the direct costs paid by the plaintiff for such benefits in the 2 years prior to plaintiff's injury or death or to be paid by the plaintiff in the future for such benefits.

(b) In any proceedings to which this Section applies, the actual amount paid for health care services or to be paid under any health care services insurance or benefit program shall be used to determine the amount of the services and not the billed charges. Nothing is this Code shall be construed to prevent, and the court shall allow, the introduction of evidence of the amount paid by an affidavit or testimony of actual payment received.

(Source: P.A. 84-1431.)

(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 Note most recently issued prior to of 9% per annum from the date of the judgment, until satisfied, provided that:

(1) if the rate on the 10-year United States Treasury Note is less than 3%, then the judgment shall draw interest at the rate of 3% per annum;

(2) if the rate on the 10-year United States Treasury Note is more than 6%, then the judgment shall draw interest at the rate of 6% per annum; and

(3) if or 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, then the judgment shall draw interest at the rate of 1% per annum.

Except as provided in subsection (b) of this Section, when 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. 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 in which a federal Medicare right of recovery may exist against the judgment, interest under this Section shall be computed from the day after the federal Medicare program provides confirmation of any lien against the judgment, and no interest shall be paid on the Medicare right of recovery amount.

(c) The changes to this Section made by this amendatory Act of the 99th General Assembly apply to judgments entered after its effective date.

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

(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 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" means any hospital, nursing home or other facility, or employee or agent thereof, 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 this amendatory Act of the 99th General Assembly apply to causes of action accruing on or after its effective date.

(Source: P.A. 97-1145, eff. 1-18-13.)

(735 ILCS 5/Art. VII Pt. 29 heading new)

PART 29. FEDERAL PAYOR GUIDELINES

(735 ILCS 5/8-2901 new)

Sec. 8-2901. Federal payor guidelines.

(a) As used in this Section:

(1) "Criteria" means criteria relating to administrative procedures and does not include criteria relating to medical treatment, quality of care, or best practices.

(2) "Guideline" means a guideline relating to administrative procedures and does not include guidelines relating to medical treatment, quality of care, or best practices.

(3) "Payor" means any insurer, health maintenance organization, self-insurance plan, or other person or entity which provides, offers to provide, or administers hospital, outpatient, medical, or other health care benefits to persons treated by a health care provider in this State pursuant to any policy, plan, or contract of accident and health insurance.

(4) "Standard" means a standard relating to administrative procedures and does not include standards relating to medical treatment, quality of care, or best practices.

(b) The development, recognition, or implementation of any guideline by any public or private payor or the establishment of any payment standard or reimbursement criteria under any federal laws or regulations related to health care shall not be construed, without competent expert testimony establishing the appropriate standard of care, to establish a legal basis for negligence or the standard of care or duty of care owed by a health care provider to a patient in any civil action for medical malpractice or medical product liability. Compliance with such a guideline, standard, or criteria shall not be used to establish a health care provider's compliance with the standard of care or duty of care owed by a health care provider to a patient in any civil action for medical malpractice or medical product liability without competent expert testimony establishing the appropriate standard of care.

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