WhiteCoat

Malpractice Reform Shot Down In Illinois

Today, the Illinois Supreme Court agreed with an earlier trial court’s decision to abolish caps on medical malpractice judgments in Illinois, calling the legislation “facially invalid” due to a separation of powers issue with the Illinois Constitution. Apparently only the judicial branch of Illinois government has the ability to reduce verdicts.

Because of an inseverability clause contained in the legislation, the entire medical malpractice reform statute was declared invalid.

When presented with the number of other states that have enacted noneconomic damage caps and the number of states that have rejected the separation of powers argument under the same circumstances, the Illinois Supreme Court justified its decision by stating “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.”

The Supreme Court’s opinion is here.

Also read an article about the legislation in the Chicago Tribune.

Hear all those papers rustling? That’s all the doctors in Illinois flipping through medical journals and newspapers looking for jobs in other states. It will be interesting to see the effect that this decision has upon Illinois citizens’ access to medical care in the coming years.

UPDATE
Some good insights and additional links to the story from Walter Olson at Point of Law. Interesting to imagine how the Court would back out of its corner if hospitals and doctors required that patients agreed to a limit for damages as a requisite for medical care – contracting around the statute as potential medical malpractice plaintiffs are often requested to do with attorney fee limits in Florida.

Also … a picture of young Abigaile Lebron, the child whose birth negligence case sparked the Supreme Court’s decision.

41 Responses to “Malpractice Reform Shot Down In Illinois”

  1. L says:

    The text of the law is disturbing. It directs that the “trier of fact” (euphemism for the jury) should separately decide on the economic and non-economic damages and “shall not be informed” of the cap on non-economic damages (presumably so that they don’t artificially increase the economic damages to compensate). Instead, the court is supposed to adjust the non-economic component after the jury awards them.

    I have no opinion on how this comports with the Constitution of Illinois. However, depending on the jury’s ignorance of the law for the system to work is absurd.

    Of course, the root of the problem is having the jury in the first place. What level of respect is due to a court whose verdicts are not accompanied by a discussion of the evidence, the law and how they apply to the case? The image of courts where verdicts are announced without any reason given is normally associated with totalitarian countries, but is actually most typical of the US.

  2. Aaron says:

    I find it a disheartening action on the behalf of my state, but this particular law seems as though it was designed and passed to be overturned by a court.

    • Fyrdoc says:

      It was. Representative Sidney H. Mathias, a democrat who runs a Republican due his constituency in the 53rd District said as much in two different speeches. He stated (and I’m paraphrasing) “I wanted to be able to tell the voters that I voted for tort reform, but I really don’t believe that it (tort reform) would be a net positive for the state. However, we (the lawmakers) trusted the court to ‘do the right thing'” Keep in mind, the (dis)honorable Mr. Mathias is a trial lawyer by profession.

    • Matt says:

      Aaron,

      Why you would be disheartened about less government interference in our lives, I don’t know. Perhaps that’s just your philisophical bent?

      As to Mr. Mathias, if he was secretly hoping this got shot down, he has a funny way of showing it:

      http://www.mathias.ilhousegop.org/2010/02/supreme-court-ruling-will-hurt-health-care-system/

      http://voteforsid.com/

      Also check out the “friends of fairness” (I love these lobbyist terms) award that a tort reformers group gave him.

      It’s highly unlikely Mr. Mathias ever said the quote Fyr attributes to him, as Fyr’s statements and the truth rarely intersect in general, not to mention the above links. Also, it’s highly unlikely Fyr has any clue what type of law Mr. Mathias practiced. Facts have never been an impediment to strong opinions for him.

  3. Matt says:

    Ah the disappearing doctors claim. 30 years of caps and not a shred of evidence it’s true but belief continues unabated.

    Good to see that not everyone wants the government controlling every aspect of our lives like physicians seem to want.

    • WhiteCoat says:

      Are you high? Illinois never had caps. Every time they’ve been legislated into existence, the Supreme Court has shot them down.
      Guess all those mandatory criminal sentencing guidelines are now null and void, also. After all, those laws unfairly affect the ability for a judge to reduce a sentence on someone who is convicted of a crime. Have to keep legislatures out of the judicial province, you know.
      Wonder how it will affect statutory damage awards. If any statute specifies an award when liability is found, doesn’t it unconstitutionally affect the ability of a judge to award less – or [gasp] more?

      As for keeping the government from controlling our lives – I guess the Illinois lawyers on the Supreme Court want to continue allowing their practicing brethren and the fear of jackpot jury awards to perform that function in Illinois.

      • Matt says:

        The length or brevity of criminal sentences has no constitutional protection for the most part. Once again you’re pontificating on concepts you don’t understand.

        As to statutory damage awards which statute are you talking about? Or are you just throwing out phrases?

        You let your life be controlled by a fear which you barely understand and have no idea of the likelihood? Really? Spend a lot of time outside watching for meteors coming toward earth too? Also how much is a “jackpot” award? Or is that just another of your undefinable scare tactic terms?

        By the way, if Illinois never had caps wouldn’t the docs have already left? Why wait until now? By now Illinois should have far fewer docs per capita than say, Texas if your claims have any truth at all. How much you want to bet it doesn’t?

      • Fyrdoc says:

        Yeah Matt, we don’t understand these concepts. So explain this paragraph to those of us in the nuthouse who can’t read (PLEASE MR. MATT, PLEASE):

        “The case before the high court came on appeal from Cook County Circuit Court. In 2007, Cook County Circuit Judge Diane Larsen decided that caps on malpractice awards violated the Illinois Constitution’s “separation of powers” clause, in effect ruling that the state Legislature can’t interfere with the right of juries and judges to determine fair damages.”

        How does that “separation of powers” apply to tort damages but not to criminal sentences or statutory damages?

        BTW – Until the caps, there were no neurosurgeons in Will County (population in excess of 1 million persons). I wonder how long the new ones will stay? There still are no neurosurgeons in the state south of Springfield. And if you don’t believe there is a specialty shortage in Illinois, consider the fact that the state had to define trauma centers by statute instead of accepting the definitions by the American College of Surgeons (as most states do) because most of the trauma centers in the state were in danger of losing their ACS credentials due to lack of sub-specialty surgical coverage.

        But hey, it isn’t a problem. Just drive slow in Joliet!

      • Matt says:

        Just when I thought I was done, I spotted one more lie:

        Will County (population in excess of 1 million persons).

        http://en.wikipedia.org/wiki/Will_County,_Illinois

        673,000 in 2007, so unless 330,000 or so moved in during 08-09, I don’t think you’re being very honest! You clearly have the internets, why not use them for good? Or at least accurate support for your outlandish claims!

      • Fyrdoc says:

        O.k. Matt,

        You are right, I didn’t check the population figures. Joliet, the site of the state’s maximum security prison, a US army arsenal and a major refinery are in Will County – so it isn’t hickville or unpopulated. But I stand corrected, 300K people (and several high risk industries) were without neurosurgical coverage before the caps.

        But notice, instead of answering the question that according to you, you are uniquely qualified to answer, you have yet again decided to latch onto a far less significant point in the post.

      • Aaron says:

        Here in southern Illinois I am roughly 145 miles from a neurosurgeon, almost 350 miles for one in state.

      • Matt says:

        What’s the name of your town?

      • Fyrdoc says:

        Anywhere south of Springfield, Illinois.

    • Matt says:

      I posted this already, but for some reason it’s still awaiting moderation. The “south of Springfield” claim is a lie, per usual for Fyr. Unless you don’t think Dr. Lal deserved his degree.

      http://www.healthgrades.com/directory_search/physician/profiles/dr-md-reports/Dr-Sumeer-Lal-MD-9FB64970.cfm

      That being said, south of Springfield doesn’t mean much since much of that is relatively close to St. Louis. So worrying about the state line doesn’t mean much if you’re 30 minutes from someone across the line. Further, if you look at a population density map of Illinois you’ll see very clearly why southern Illinois doesn’t have a lot of neurosurgeons. Like all rural areas. They also don’t have a major league baseball team or a symphony orchestra.

      But the real question is how many neurosurgeons do the physicians and insurers backing reform PROMISE you if you give them what they ask for? The answer: None. They guarantee nothing. Zero. Zip. Nada.

      It turns out that regardless of “reform”, if you want specialists, live where the money and lots of people are. New York doesn’t have “reform”, but there is a lot more money than in, say, rural Texas with oodles of reform. Guess which has more neurosurgeons?

      • Fyrdoc says:

        Does Dr. Lal accept call for trauma? Hmm, why is it again that Southern Illinois University had to place it’s medical school in Springfield? The abundance of specialists in Carbondale?

        But hey, let’s use the ‘Net appropriately. There is no Dr. Sumeer Lal licensed in the state of Illinois. Check for yourself: https://www.idfpr.com/applications/professionprofile/Default.aspx? Healthgrades is often years behind the times. It seems Sumeer now works in SC. Oops, Matt, wrong again.

        Springfield is 2 hours by ground to St. Louis. To anyone but a trial lawyer, that is a long way to go with a head injury (those without brains can’t have brain injuries).

        But really Matt, we can argue about the population of Will County, or the current practice locations and call practices of a single neurosurgeon all you would like. But what we are all still awaiting an answer on is how does the “separation of powers” quoted by the Illinois SC apply to tort damages but not to criminal sentences or statutory damages?

      • Fyrdoc says:

        And Matt, unlike you I acknowledge when I err. I suspect I’ll be waiting a long time for the apology for “The “south of Springfield” claim is a lie, per usual for Fyr.”

        Per usual my a$$ – you just can’t take being beaten at debate by a physician so you resort to name calling. I guess I expect no different from a member of the dark minions.

      • Matt says:

        I guess we’ll have to call dr lal’s office on Monday and see which site is more up to date. As well a Dr Jeff Jones who was a neurosurgeon there as of 2008.

        Of course if one looks at a population density map of Illinois it’s not terribly surprising why there would be few. You see, those of us who live in rural areas understand the tradeoff. There are fewer of lots of things.

        But tell me, are you promising we will have a neuro within two hours if we enact caps? You clearly want caps, where you get a guarantee. So what do you guarantee we get? I eagerly await your response.

        And I did mean per usual. In this comment thread alone you’ve already made two pointless lies. All for the sake of an unsupportable proposition that caps affect access. Because the only thing that affects access is money. Which is why New York, without caps, has more physicians per capita than Texas, with caps. That’s a fact little fella. And that fact alone undercuts your whole premise.

        But then, yours is a faith based belief anyway isn’t it?

        As to your separation of powers question I will see what I can find out for you. I’m no con law expert so I can’t tell you the answer off the top of my head. May have to do with the civil/crim distinction or possibly the common/statutory law distinction. Pure guess is the latter.

      • Matt says:

        By the way, according to this “reform” press release, as of March of 2009 there were actually THREE neuros south of Springfield.

        http://www.madisonrecord.com/arguments/218032-illinois-medical-liability-reform-law-keeps-on-working

        I guess they’ve taken you off the mailing list? Is the Internets down at your casa, too?

        Admittedly though these guys are in a university town. If you can get caps though I bet lots of neuros are just itching to leave major cities for, say, rural North Dakota where they can work on the res and see lots of Medicaid patients! I know you’d go there if ND just had caps, wouldn’t you? Because money doesn’t matter to neurosurgeons. Only lawyers care about filthy lucre.

      • Fyrdoc says:

        Matt,

        Now who has lost touch with reality? You don’t accept the website of the Illinois Department of Professional Regulation’s website (their state’s version of a medical board) to check who is licensed or not, you post an article supporting the effectiveness of the caps in recruiting neurosurgeons while arguing that can’t/won’t happen, and you still offer no actual explanation of the legal principles involved for those of us who are not in league with Satan, oops, I mean who aren’t lawyers.

        You aren’t just drinking the Kool-Aid, you’ve drowned in it.

        Good-bye sir. As you once wished me, good luck in your search for sanity.

      • Matt says:

        Adieu, my dishonest friend. Have a great weekend.

      • Aaron says:

        Thanks for the link to the Madison county record, the town in question was indeed Carbondale. I didn’t know that Carbondale Memorial had picked up coverage early last year as did Marion.

        The last time I checked was when I first moved down here…

  4. Matt says:

    I love Illinois. Good people. And people well served by physicians. Let’s go to the (actual) data, shall we?

    14th in (nonfederal) Physicians per capita in 2008:
    http://www.statemaster.com/graph/hea_tot_non_phy_percap-total-nonfederal-physicians-per-capita

    (incidentally, that tort reform mecca with caps, Texas, is tied for 40th)

    Total number of nonfederal physicians in Illinois in 2008? 42,510.

    Total number of paid malpractice claims in Illinois in 2008? 310 (an epidemic indeed!)

    No neurosurgeons south of Springfield Illinois? Not true, per usual, unless Fyr’s mad at the good Dr. Lal and refuses to recognize him:

    http://www.healthgrades.com/directory_search/physician/profiles/dr-md-reports/Dr-Sumeer-Lal-MD-9FB64970.cfm

    Any guess as to why there wouldn’t be many? Perhaps this population density map will assist:

    http://img.search.com/thumb/f/fc/Illinois_population_map.png/275px-Illinois_population_map.png

    Also rare south of Springfield, and generally rare in most parts of rural America that don’t also have local universities, and aren’t called Aspen: major league baseball teams, trauma centers, modern art museums, renowned cancer centers, international airports, gelato.

    Number of neurosurgeons that physicians and their insurers will promise you’ll get if you cap what their insurers will pay if they render you a quadraplegic? ZERO.

    Number of empty, unenforceable and vague statements they’ll make about what you will get if you do so? INNUMERABLE.

    Amount of hot air expended in making said nonexistent guarantees? Al Gore is still measuring.

  5. Sarah says:

    I trained at UW in Madison, and there were lots of docs who trained in Illinois or practiced there who made their way up to the great state of Wisconsin – all of them told stories of OUTRAGEOUS malpractice insurance fees that drove them from the state. One of my friends is a surgery resident in Chicago and says the state of health care there is awful. Guess it’s just going to get worse, huh?

    • Matt says:

      Depends. Everyone’s rates shot up in the early part of the last decade as the insurers struggled to recoup losses from the markets. The number of insurers shrank, partly due to consolidation and partly due to some just being poorly managed. Payouts didn’t change much.

      If Illinois, like almost all states regardless of caps, has gotten new players in the market, then the competition will help keep the price down.

      Watch the number of paid claims annually in Illinois, as well as insurer profit margins, and you’ll be able to tell what drives rates.

      Of course, who says that any savings would be passed on to you? Hospitals certainly don’t pass on savings to many people, even in tort reform Meccas:

      http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-bonuses_21met.ART.State.Edition2.4ba1b02.html

      • throckmorton says:

        Matt:

        In many ways hospitals have passed on the cost reductions you dont see them in the total net because hospital revenue is way down. Hospitals have to negotiate with insurance companies. This determines how much they get paid. The payments have not increased at the same pace as overhead. Medmal is part of the overhead but is not the entire total. Yes, medical costs have gone up in states with reform, but the big question is has it gone up the same way as in other states? Further, as to hositals passing on savings. Even the private medical centers in our area do about 25% free care. That is to say, they do not revieve a cent. When you look at medical centers in Texas, their AR from those who will not pay far exceeds that amount just in illegals alone.

      • Matt says:

        Hospital revenue where is way down? It’s up in some places, down in others I would expect, owing to everything from demographics to the local employment base.

        “Yes, medical costs have gone up in states with reform, but the big question is has it gone up the same way as in other states? ”

        Well, after 30 years of these “reforms”, you’d think if there was a difference the “reformers” would be crowing about it. However, evidence to date shows that “reform” has little to do with costs, as this article illustrates:

        http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande

        ” When you look at medical centers in Texas, their AR from those who will not pay far exceeds that amount just in illegals alone.”

        You’re going to need to support this claim or be a little more specific as to which centers you’re referring to. For a state where allegedly no hospital can make money, a bunch of new hospitals have come online in the last 5 years.

    • Matt says:

      By the way, Sarah, below is a great site for actual facts on all different aspects of health care by state. Unfortunately, they don’t have state trends up yet for many states when it comes to malpractice payouts.

      Here’s what they do have:

      http://www.statehealthfacts.org/comparetrend.jsp?sub=102&ind=436&typ=1&cat=8&yr=63&srgn=6&srgn=45&srgn=11&srgn=34

      You’ll note that the presence of caps does not appear to be a factor in any payout decline, as New York does not have them while Texas does.

      Other states without caps have shown a similar decline in suits filed, although even the insurers say they’re not really sure why and can’t be certain as no one has the numbers:

      http://www.desmoinesregister.com/article/20100131/NEWS/1310335/-1/politics/Malpractice-cases-drop-but-views-on-why-differ

  6. L says:

    How does that “separation of powers” apply to tort damages but not to criminal sentences or statutory damages?

    IANAL but the ruling explains that bit. The law didn’t simply limit damages. Instead, the law said that the damage cap should be kept secret from the jury [does this mean that jurors who read the newspaper should be excluded from serving?] and that after the jury determined what they thought was the right amount, the court should reduce the award to the cap amount (if needed). Now courts do have a power (“remittur”) to reduce unconscionable jury damage awards. The Supreme Court of Illinois read the law as defining non-economic awards beyond a certain amount unconscionable and directing courts to use their power in that regard.

    The law itself is awful. Beyond the fact that its very existence is supposed to be a secret, the amount of the cap itself is not fixed, but is based on a “deep pockets” rule: hospitals are liable for twice as much in non-economic damages as individual doctors. It simply doesn’t make sense for the amount of liability to depend on the wealth of the defendant.

    ——–

    This is not to say that I think damage caps are a bad idea. Far from it. But this particular attempt at implementing tort reform was very clumsy. As I said above, much of the clumsiness derives from the awkward way in which jury trials must be run.

    Personally, I would support a tort reform law that eliminated the jury from any trial involving expert testimony. Judges (unlike juries) must substantiate their rulings in writing, and their name is directly associated with the verdicts. Also, such verdicts are subject to meaningful appelate review.

    • Matt says:

      “Personally, I would support a tort reform law that eliminated the jury from any trial involving expert testimony. Judges (unlike juries) must substantiate their rulings in writing, and their name is directly associated with the verdicts. Also, such verdicts are subject to meaningful appelate review.”

      I think your proposal is based on some bad info. One, the review by the appellate court is the same, regardless of whether it’s a judge or a jury.

      What’s more, on appeal the whole trial transcript is sent to the appellate court, as well as abstracts of the record by both sides, and arguments in writing by both sides.

      Finally, judges typically don’t even write their own rulings, and don’t have to substantiate it much at all. Usually they render their opinion from the bench, tell the winning side to draft an order, then the two sides argue over what the order should say, then they sign it. But the appellate court still gets the whole transcript and all exhibits plus everything else I mentioned.

      The only real result of your proposal would be that every trial, no matter how mundane, would have whoever didn’t want a jury putting on expert testimony regardless of the case.

      There’s no evidence that juries are incapable of understanding expert testimony, so I’m not sure why we would eliminate them hearing it. Unless one believes that a single person with a law degree who ran a good race to get elected is more likely to comprehend expert testimony than a jury made up of , say, a nurse, an engineer, a schoolteacher, a car salesman, etc. Given how stupid physicians think lawyers are, I find it hard to believe they want to put their case solely in the hands of one.

      • L says:

        As I said, I’m not a lawyer, but at least in Israel what the judge reads in court is his written opinion, including the reasoning. It is simply unthinkable for a judge to give a verdict without detailing his reasoning. I didn’t realize US litigants settle for arbitrary verdicts.

        Regarding appeals, as far as I can tell there is no control over a jury who misapply the law — as long as the verdict is remotely possible, it cannot be reversed on appeal. On the other hand, a legal error by the judge is easy to fix since his written opinion is there for all to see.

        If you prefer the jury then I would be happy with keeping the jury as long as they produced a written opinion discussing the law, the evidence, and how the two together lead to the verdict. A court, however constituted, which cannot produce such an opinion is no more than a sham.

      • Matt says:

        The judge will typically state his reasoning, I agree. But he is not required to do so. Usually the lawyers ask though, as they want to make sure the record is clear on appeal so it can be reviewed.

        As to juries misapplying the law, there is lots of control. But first a distinction that may not exist in Israel. Juries do not decide questions of law, they decide questions of fact. Then they apply the law to the facts as the law is given to them by the judge. That’s what jury instructions are – the law. And that’s why they say “if you find X did this, then you must do Y.” The jury gets to decide if X did it, and they are told how the law applies in that situation and what to do then. (putting aside the concept of jury nullification for the moment)

        Now, a jury, and a judge for that matter, are given great deference on questions of fact on appeal. But questions of law are treated the same.

        As to your proposal on keeping the jury, as the jury instructions are part of the appellate record, the appeals court can make sure the correct law was applied to the case. What it is loathe to do, again regardless if it’s a judge or a jury, is overturn on questions of fact. It does happen, but rarely.

      • L says:

        I’m familiar with the distinction between “the law” and “the facts”.

        Let’s consider actual jury instructions from a copyright infringement case, posted here.

        Instruction 6 says “In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe … you may accept or reject the testimony of any witness, in whole or in part.” Yet the jury will not be required later to explain why they decided to believe or disbelieve particular testimony. How are we supposed to respect the verdict when no reason is given why particular evidence was rejected, or a particular witness was believed more than another witness?

        Instruction 7 allows the jury to “draw from the facts that you find have been proved such reasonable inferences as seem justified in light of your experience.” There is considerable caselaw on which inferences are reasonable and which are not. Since the jury is not provided with this caselaw, how are they supposed to judge whether they are making reasonable inferences?

        Instruction 8 allows the jury to judge the “education and experience” of expert witnesses. Judges are repeat players. Juries only serve once. Do you really think a jury is qualified to judge whether an expert has the experience and education to testify? The jury has no expertise in the subject matter itself, nor do they have the experience of seeing many experts testify, and in particular of seeing the testimony of many experts compared with each other.

        Instruction 21 tells the jury the range of damages they may award, and says they should choose an amount “as they consider just”. However, the jury is not required to explain what criteria they used to determine what amount is “just”. Without this explanation, how is an outside observer supposed to tell whether the amount awarded by the jury is, in fact, just?

        Basically, in every case similar to that one the jury must pull a number out of their ***. As long as the number is not so high as to shock the conscience (and thus qualify for remittur), there will be no review. Even if there is review, there cannot be a review of the method for calculating damages for the simple reason that there is no such method. The instructions expressly say that the jury should make a number up.

        I am amazed by your willingness to live with a court system where the court (personified by the jury) may award millions of dollars in compensation without a single word about how the number was calculated, or even an agreed-upon standard for calculating this number. Where the court (personified by the jury) may decide that an expert witness lacks education and is therefore not believable but does not have to articulate what it is about the education of the witness that is lacking.

        An so far we have ignored simple errors. If a judge serving as the trier of fact misunderstands some testimony and gets the verdict wrong, the court of appeals can reverse, since the verdict rendered by the judge will say what the judge understood. If the jury misunderstands a witness there will be no remedy, since the jury is unaccountable.

        Aside: even though they are not required, I simply don’t understand how there exist jurors who can in good conscience leave the courtroom without explaining themselves in detail to the litigants. Basic human decency and an ordinary sense of responsibility should compel them to explain their reasoning and calculations, even if in theory they are not required to do so.

      • Matt says:

        “I am amazed by your willingness to live with a court system where the court (personified by the jury) may award millions of dollars in compensation without a single word about how the number was calculated, or even an agreed-upon standard for calculating this number.”

        It’s a matter of where you put your trust. And in large part that’s a philosophical question. Do you believe the elected officials are better qualified to adjudicate disputes than 12 people with no financial skin in the game and immune to direct political pressure?

        “Without this explanation, how is an outside observer supposed to tell whether the amount awarded by the jury is, in fact, just?”

        I think you rely on the fact that they heard all the evidence and you didn’t. However, you have the same access to the court record as anyone else, and you can review the record.

        You seem to believe a judge has to be more specific than a jury, when in fact they don’t.

        Why you think a judge whose background may be solely in criminal law is more qualified to determine whether a house was constructed defectively than a jury which might consist of an engineer, or even someone who has contracted the building of their own house, I don’t know. The judge is certainly more qualified to judge questions of law, given his training. But it’s likely he has no background in the factual issues before him/her.

        “If a judge serving as the trier of fact misunderstands some testimony and gets the verdict wrong, the court of appeals can reverse, since the verdict rendered by the judge will say what the judge understood. If the jury misunderstands a witness there will be no remedy, since the jury is unaccountable.”

        Again, this is wrong. And maybe I have a different perspective than you because I’ve written the appeals for bench trials. The judge is given the same deference as a jury is, and often in practice more.

        “Aside: even though they are not required, I simply don’t understand how there exist jurors who can in good conscience leave the courtroom without explaining themselves in detail to the litigants.”

        They do, when they answer the jury instructions. If X then Y. If Y happens, you know what they think. Now, I don’t think opening either trier of fact to an extended Q&A is all that useful, because the losing party will always want to ask questions until they’re blue in the face. They’ll never be satisfied.

        ” Where the court (personified by the jury) may decide that an expert witness lacks education and is therefore not believable but does not have to articulate what it is about the education of the witness that is lacking.”

        Actually, the judge decides on his qualifications.

  7. ACZ says:

    All the Chicago MDs can come to Nevada. We’ve already dealt with those issues and capped this and capped that. Malpractice insurance was through the roof, and the docs were leaving in droves, so tort-reform was instituted and various and sundries were capped. Funny thing, though. Nevada still has a severe shortage of MDs. Might have something to do with the fact (IMHO) that Nevada is one of the pre-eminent third world back-water shit-holes of America. But hey, that’s just my opinion. So come on down all you Chi-town docs, we can use you!

    • Matt says:

      So you’re with the Las Vegas Chamber of Commerce?

      • ACZ says:

        Oh, quite the contrary…I’m lookin’ for the exit, man. I consider my stay in Vegas akin to a layover in an airport ’cause I couldn’t get a direct flight. But damn, you are crafty Matt!
        I can’t tell if you’re being straight based on my invitation to the Chicago docs, or you being facetious based on my feelings about this town (3rd world back-water yada-yada).

        You are a tricky one, you are

  8. JerseyJoe says:

    I am always distressed at physician discussions of caps that noone worries about the rights of the patients. Children, who have little direct economic value in terms of lost wages, etc may be very unfairly treated in a caps system. How do you compensate a 2 year old child for the loss of a limb fo the rest of that child’s life?
    Or if a 24 yr old married male is rendered impotent, how do you compensate both partners for the loss of conjugal pleasure? We want to save our own iincomes (and with good cause) at the expense of the rights of our patients. I find that disturbing. Nor is demonizing trial lawyers very helpful. They at least are at risk for thereimbursement of their time. Everyone else in the system- including well paid physician experts- have guaranteed fees. Shoulld you ever be injured & seek redress, you will e glad there excellent attorneys specializing i litigation. I am concerned about people’s access to the courts, which can be very expensive. It is usually cheaper for a plaintiff to pay attorney’s by the hour than by contingency fees. But few private citizens can affford that. There as been some claims in California of attorneys refusing “many” potential plaintiffs because of caps. That sounds good, but not to the person who has a legitimate claim but can’t get representation.
    I haven’t seen a major study as to any impact caps have on access to the courts. I haven’t seen any study of the effect of caps on people whose awards were trunkated because of them. Do caps do harm? I don’t know the answer.
    I think we need to look at the injured patient side of the issue & modify our proposals to protect the rights of the legitinmately injured patient. Showing concern in that regard might do a great deal to decrease political opposition.

  9. k says:

    As an Illinois resident, this ruling concerns me. I’ve served on juries twice, and have observed that both plaintiff’s and defendant’s counsel seek to eliminate anyone who is unlikely to base their decision solely on the facts of the case. IOW, they’re looking for emotion-driven jury members, rather than logic-driven panelists.

    The kinds of people who I’ve seen excused are in technical professions (IT, engineering, etc.), those seeking/possessing education beyond a high school level, managers, consultants, high earners, etc. In my county, persons of color or of those of foreign descent – from black, Hispanic, and Asian to Indian and Middle Eastern – are routinely excused.

    There are legitimate reasons some of the aforementioned are excused: declared inability to exclude personal biases, English language skills rendering the person unable to fully understand the facts of the case, rules of the court, and so on.

    At the risk of stereotyping, it seems the ideal jury member is a high school educated housewife who does not work outside the home, and watches People’s Court, Judge Judy, CSI, and similar programs.

    I feel that injured plaintiffs should be awarded medical care for life, but “pain and suffering” should be excluded. At the risk of offending trial/PI lawyers, I believe a ‘health court’ system should be implemented, with safeguards in place to ensure the truly incompetent, negligent, etc. doctors are stripped of their licenses.

    I urge those who are interested to look into the misuse of the National Provider Data Base – propublica.org has some good reporting on this and similar matters.

    Feel free to flame, Matt – I’ve donned my Nomex jumpsuit…

    • Matt says:

      K,

      I’m sad that you would find any comment on your take “flaming”. I think you’ll find almost all my replies are pretty factual in nature, and quite polite. With the exception of my response to Fyr, who insists on making things up to support his beliefs.

      However, that being said, there is no way one can just eliminate technical degrees. I don’t know about Illinois specifically, but in most places you only get three strikes for no reason (excluding race, gender). So the rest will have had to have shown a very obvious inability to decide the case on its facts. Most judges that I’ve tried cases in front of will do all they can to rehabilitate a juror even with an opinion on the outcome. So the whole “lawyers kick all the smart people off” is really unrealistic.

      As for the “ideal” jury member, there isn’t one across the board. It’s going to depend on the case. And every lawyer has a different theory on who you want. Also, remember the lawyers know a little more than the average observer or even the other jurors because they’ve reviewed everyone’s jury questionnaire. So they know things about the pool you don’t.

      “I feel that injured plaintiffs should be awarded medical care for life, but “pain and suffering” should be excluded. At the risk of offending trial/PI lawyers, I believe a ‘health court’ system should be implemented, with safeguards in place to ensure the truly incompetent, negligent, etc. doctors are stripped of their licenses.”

      Just a couple questions about your position. Is it your belief that if you are struck by a drunk driver today and rendered quadraplegic, that your lost quality of life has no value? All you should receive is the money to pay for your medical care and of course any lost income? I can respect that position if that’s how you feel across the board.

      As to “health courts”, it’s hard to say much without knowing the particulars, but given how few medical malpractice trials there are, is it really necessary to establish a whole new bureaucracy to hear these? When there is no evidence they would get it correct any more often than the jury does? Seems like an awful lot of costs for us taxpayers that the parties involved now bear. And really, why stop at health courts? Why not give every technical question its own separate forum?

  10. paul says:

    these threads are like a car wreck on the side of the road. can’t… turn… away…

    • DensityDuck says:

      Yeah, there’s just something about Matt. At first I thought he was trolling, but no troll would be THIS dedicated. I guess he’s just one of those people who desperately wants to be banned so that he can tell himself that He Was Too Cool For Whitecoat.

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