Bill on med-mal attorney fees goes to governor

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

HB5151 was recently passed by the House of Representatives. The bill containing a measure to cap attorney fees in medical malpractice cases was recently passed by the Illinois General Assembly. If the bill becomes law, attorney fees in medical-malpractice cases will be capped at one-third of a plaintiff award and lawyers will be barred from petitioning the court for higher fees. Under the current system, plaintiff attorneys in medical-malpractice cases can only seek fees of one-third of the first $150,000 of a medical malpractice award, 25 percent of the next $850,000 and 20 percent of any reward more than $1 million. These rules were perceived as being unfair as plaintiff attorneys in other types of personal-injury cases can seek one-third of an award, whereas attorneys in medical malpractice cases have these restrictions. The Illinois State Medical Society, which opposes this bill, has calculated that the bill would increase attorneys’ fees on a $10 million award in a medical-malpractice case from $2.06 million to $3.33 million.

The bill also re-enacts and repeals provisions of the Code of Civil Procedure in order to conform to two Illinois Supreme Court rulings of Best v. Taylor Machine Works 179 Ill.2d 367 (1997) and Lebron v. Gottlieb Memorial Hospital 237 Ill.2d 217 (2010) on medical malpractice reform. In Best, it was found that four provisions of the Civil Justice Reform Amendments of 1995, which made changes in tort recovery, liability and procedure, violated the Illinois Constitution. The Court found in Best that the unconstitutional provisions could not be severed from the act, so the act was rendered invalid. In Lebron, it was found that the caps on noneconomic damages in medical-malpractice cases violated the separation of powers. The Lebron suit alleged that the damages of a minor who suffered severe and permanent injuries due to the health care she received at birth would go beyond the cap. In finding that the provision violated the separation of powers, the court rejected the health-care provider’s claim that the statute was a valid exercise of the police powers upon finding the issue was not the wisdom of the law, but whether the law unduly infringed on the judiciary’s power.

Furthermore, the bill also includes a provision that would create a $250 million cap on the amount of money defendants in civil litigation against tobacco companies have to post as bond in order to appeal a ruling. The legislation, which was backed by ITLA, was approved by a margin of 67 to 46. The Bill now goes to Gov. Pat Quinn for his approval.

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