Full Text of SB2997 093rd General Assembly
SB2997 93RD GENERAL ASSEMBLY
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93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004 SB2997
Introduced 2/6/2004, by Dave Syverson SYNOPSIS AS INTRODUCED: |
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735 ILCS 5/2-1114 |
from Ch. 110, par. 2-1114 |
735 ILCS 5/2-1706.5 new |
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735 ILCS 5/2-1706.7 new |
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Amends the Code of Civil Procedure. Limits attorney's fees in medical malpractice actions to $1,000,000 plus reasonable and documented expenses. Provides that the non-prevailing defendants shall pay such fees in addition to any award for economic and noneconomic damages in the case. Provides standards for determining economic and non-economic damages in medical malpractice actions. Effective January 1, 2005.
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A BILL FOR
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SB2997 |
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LRB093 19777 LCB 45519 b |
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| AN ACT in relation to patient compensation, safety, and | 2 |
| access to health care, which may be referred to as the Fair | 3 |
| Patient Compensation and Safety Improvement Amendments of | 4 |
| 2004.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 1. Legislative findings. The General Assembly | 8 |
| finds that: | 9 |
| (1) Illinois is in the midst of a medical malpractice | 10 |
| insurance crisis of unprecedented magnitude. | 11 |
| (2) Illinois is among the states with the highest medical | 12 |
| malpractice insurance premiums in the nation. | 13 |
| (3) Medical malpractice insurance in Illinois is | 14 |
| unavailable or unaffordable for many hospitals and physicians. | 15 |
| (4) The high and increasing cost of medical malpractice | 16 |
| insurance in Illinois is causing health care providers to | 17 |
| eliminate or reduce the provision of medical care throughout | 18 |
| the State. | 19 |
| (5) The crisis is discouraging medical students from | 20 |
| choosing Illinois as the place they will receive their medical | 21 |
| education and practice medicine. | 22 |
| (6) The increase in medical malpractice liability | 23 |
| insurance rates is forcing physicians to practice medicine | 24 |
| without professional liability insurance, to leave Illinois, | 25 |
| to not perform high-risk procedures, or to retire early from | 26 |
| the practice of medicine. | 27 |
| (7) The high and increasing cost of medical malpractice | 28 |
| insurance is due in large part to the inefficiency and | 29 |
| unpredictably of adjudicating claims. | 30 |
| (8) Much of this inefficiency stems from the time and | 31 |
| resources needlessly spent on valuing uncertain and | 32 |
| unpredictable claims of medical negligence. | 33 |
| (9) Individuals bringing malpractice claims would benefit |
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| if the parties spent less time assessing the value of the | 2 |
| claimed injury. | 3 |
| (10) The public would benefit by making medical liability | 4 |
| coverage for hospitals and physicians more affordable, which | 5 |
| would make health care more available. | 6 |
| (11) The public would benefit from creating incentives for | 7 |
| hospitals to ensure that certain unacceptable events never | 8 |
| occur in hospitals. | 9 |
| (12) A fair and reasonable range for awarding non-economic | 10 |
| damages should be used to create an incentive for hospitals to | 11 |
| encourage safer hospital practice and to avoid extensively | 12 |
| debating the value of the claim of medical negligence. | 13 |
| (13) A fair and reasonable range for awarding non-economic | 14 |
| damages should account for differences in the non-economic | 15 |
| losses the plaintiff may suffer based on the type of harm or | 16 |
| medical outcome of medical negligence. | 17 |
| Section 5. The Code of Civil Procedure is amended by | 18 |
| changing Section 2-1114 and by adding Sections 2-1706.5 and | 19 |
| 2-1706.7 as follows:
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| (735 ILCS 5/2-1114) (from Ch. 110, par. 2-1114)
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| Sec. 2-1114. Contingent fees for attorneys in medical | 22 |
| malpractice
actions. | 23 |
| (a) In all medical malpractice actions the total contingent | 24 |
| fee
for plaintiff's attorney or attorneys shall not exceed the | 25 |
| following amounts:
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| 33 1/3% of the first $150,000 of the sum recovered;
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| 25% of the next $850,000 of the sum recovered; and
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| 20% of any amount recovered over $1,000,000 of the sum | 29 |
| recovered.
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| (b) For purposes of determining any lump sum contingent | 31 |
| fee, any future
damages recoverable by the plaintiff in | 32 |
| periodic installments shall be
reduced to a lump sum value.
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| (c) The court may review contingent fee agreements
for | 34 |
| fairness. In special circumstances, where an
attorney performs |
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| extraordinary services involving more than usual
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| in time and effort the attorney may apply to the court for
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| approval of additional compensation.
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| (d) As used in this Section, "contingent fee basis"
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| includes any fee arrangement under which the compensation is to | 6 |
| be
determined in whole or in part on the result obtained.
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| (e) In any individual action, fees for all plaintiffs' | 8 |
| attorneys involved in the action may not exceed $1,000,000 plus | 9 |
| reasonable and documented expenses. The non-prevailing | 10 |
| defendants shall pay such fees in addition to any award for | 11 |
| economic and non-economic damages in the case.
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| This amendatory Act of the 93rd General Assembly applies to | 13 |
| causes of action accruing on or after its effective date.
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| (Source: P.A. 84-7.)
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| (735 ILCS 5/2-1706.5 new) | 16 |
| Sec. 2-1706.5. Standards for economic and non-economic | 17 |
| damages. | 18 |
| (a) In any medical malpractice action in which economic and | 19 |
| non-economic damages may be awarded, the following standards | 20 |
| shall apply: | 21 |
| (1) In a case where the hospital's care of the patient | 22 |
| caused the patient's death, the total amount of | 23 |
| non-economic damages shall not exceed $750,000 awarded to | 24 |
| all plaintiffs in any civil action arising out of the care. | 25 |
| (2) In a case where the hospital's care of the patient | 26 |
| caused the patient's catastrophic injury, the total amount | 27 |
| of non-economic damages recovered shall not exceed | 28 |
| $1,000,000 awarded to all plaintiffs in any civil action | 29 |
| arising out of the care. | 30 |
| (3) Notwithstanding subdivisions (1) and (2) of this | 31 |
| subsection, in a case where the hospital's care of the | 32 |
| patient caused the patient's death or catastrophic injury | 33 |
| and the hospital is found liable under the doctrine of "res | 34 |
| ipsa loquitur", as defined by Section 2-1113 of the Code of | 35 |
| Civil Procedure, the total amount of non-economic damages |
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| shall not exceed $2,000,000 awarded to all plaintiffs in | 2 |
| any civil action arising out of the care. | 3 |
| (4) In any case not covered by subdivision (1), (2), or | 4 |
| (3) of this subsection, the total amount of non-economic | 5 |
| damages shall not exceed $500,000 awarded to all plaintiffs | 6 |
| in any civil action arising out of care that caused harm to | 7 |
| the plaintiff. | 8 |
| (5) In a case where the physician's care of the patient | 9 |
| caused the patient's death or other injury, the total | 10 |
| amount of non-economic damages shall not exceed $250,000 | 11 |
| awarded to all plaintiffs in any civil action arising out | 12 |
| of the care. | 13 |
| (6) In awarding damages in a medical malpractice case, | 14 |
| the finder of fact shall render verdicts with specific | 15 |
| award of damages for economic loss, if any, and specific | 16 |
| award of damages for non-economic loss, if any. | 17 |
| (7) In any medical malpractice action where an | 18 |
| individual plaintiff earns less than the annual average | 19 |
| weekly wage, as determined by the Industrial Commission, at | 20 |
| the time the action is filed, any award for economic and | 21 |
| non-economic damages must include an amount equal to this | 22 |
| wage amount multiplied by the plaintiff's life expectancy | 23 |
| in total weeks as if the plaintiff was earning this wage at | 24 |
| the time of the injury that gave rise to the action. | 25 |
| (8) Any party in a medical malpractice case may | 26 |
| introduce annuity evidence to inform the fact finder about | 27 |
| the time value of an award and its ability to cover the | 28 |
| plaintiff's damages over time. | 29 |
| (9) The finder of fact shall take into account and be | 30 |
| aware of the extent to which the award is subject to | 31 |
| federal and State income tax laws. | 32 |
| (10) The finder of fact shall take into account and be | 33 |
| made aware that the plaintiff's attorneys' fees in the case | 34 |
| may not be paid out of any amounts awarded for economic or | 35 |
| non-economic damages in the case. | 36 |
| (11) The defendants in a medical malpractice action |
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| shall pay the plaintiff's attorneys' fees as a separate | 2 |
| item of damages based upon the contingency fee provisions | 3 |
| of Section 2-1114 of the Code of Civil Procedure in | 4 |
| addition to the award of any economic or non-economic | 5 |
| damages recovered by the plaintiff.
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| (b) As used in this Section, the following terms have the | 7 |
| meanings ascribed to them as follows:
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| "Birth-related injury" means any permanent, disabling | 9 |
| damage to the brain or spine caused by oxygen deprivation or | 10 |
| mechanical injury to an infant during labor, delivery, or | 11 |
| resuscitation.
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| "Catastrophic injury" means one of the following outcomes | 13 |
| caused by negligence in a hospital:
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| (1) the patient is hemiplegic, paraplegic, or | 15 |
| quadriplegic resulting in a total permanent functional | 16 |
| loss of one or more limbs caused by injury to the brain or | 17 |
| spinal cord or both; | 18 |
| (2) the patient has total permanent functional loss of | 19 |
| sight, hearing, or one or more limbs unrelated to the | 20 |
| natural course of the patient's illness or underlying | 21 |
| condition; | 22 |
| (3) the patient has permanently impaired cognitive | 23 |
| capacity rendering him or her incapable of making | 24 |
| independent, responsible life decisions and permanently | 25 |
| incapable of independently performing the activities of | 26 |
| normal daily living; | 27 |
| (4) the patient's reproductive organ has been | 28 |
| permanently damaged resulting in an inability to | 29 |
| procreate; or | 30 |
| (5) a birth-related injury.
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| "Economic damages" means all damages which are tangible, | 32 |
| such as damages for past and future medical expenses and loss | 33 |
| of income or earnings. | 34 |
| "Hospital" means a hospital licensed under the Hospital | 35 |
| Licensing Act and all of its corporate affiliates, employees, | 36 |
| agents, and apparent agents and a hospital licensed under the |
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| University of Illinois Hospital Act and all of its employees, | 2 |
| agents, and apparent agents. | 3 |
| "Medical malpractice action" means any civil action in | 4 |
| tort, contract, or otherwise, in which the plaintiff seeks | 5 |
| damages for injuries or death arising out of the action or | 6 |
| inaction of a hospital in rendering health care services to a | 7 |
| patient inside the hospital or arising out of the action or | 8 |
| inaction of a physician. | 9 |
| "Non-economic damages" mean subjective, non-pecuniary | 10 |
| damages arising from death, pain, suffering, disfigurement, | 11 |
| inconvenience, mental anguish, worry, emotional distress, loss | 12 |
| of society and companionship, loss of consortium, physical | 13 |
| impairment, injury to reputation, humiliation, embarrassment, | 14 |
| loss of enjoyment if life, hedonic damages, increased risk of | 15 |
| future injury, other non-pecuniary damages, and any other | 16 |
| theory of damages such as fear of loss, illness, injury, or | 17 |
| future loss. | 18 |
| "Physician" means a physician licensed to practice | 19 |
| medicine in all of its branches under the Medical Practice Act | 20 |
| of 1987 and any physician-owned legal entity. | 21 |
| (c) This amendatory Act of the 93rd General Assembly | 22 |
| applies to causes of action accruing on or after its effective | 23 |
| date.
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| (735 ILCS 5/2-1706.7 new) | 25 |
| Sec. 2-1706.7. Invalidity. If subdivisions (a)(1), (a)(2), | 26 |
| (a)(3), or (a)(4) of Section 2-1706.5 are found to be | 27 |
| unconstitutional or invalid for any reason, the total amount of | 28 |
| non-economic damages recovered for any injury or death | 29 |
| resulting primarily from medical malpractice shall not exceed | 30 |
| $2,000,000 for all hospital defendants and awarded to all | 31 |
| plaintiffs in any civil action arising out of the malpractice. | 32 |
| This amendatory Act of the 93rd General Assembly applies to | 33 |
| causes of action accruing on or after its effective date
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| Section 99. Effective date. This Act takes effect January |
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| 1, 2005.
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