Hospitals seek ruling on med mal caps

In pre-emptive strike against trial lawyers, Advocate asks for constitutional decision in bed sore case

Illinois hospitals aren't waiting for plaintiffs' lawyers to test the constitutional validity of a new law limiting jury awards to victims of malpractice.

In an unusual legal maneuver, the state's hospital lobby hopes to secure a ruling from the state Supreme Court based on a case filed against Oak Brook-based Advocate Health Care in June. In a Sept. 12 court filing, Advocate asked a Cook County Circuit Court judge to declare the $1-million limit on jury awards for pain and suffering constitutional. If the judge refuses, the hospital could appeal the ruling.

Hospitals and doctors say they won't get relief from high malpractice insurance rates until the caps, including a $500,000 limit for physicians, withstand constitutional scrutiny in court; trial lawyers want the limits struck down.

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A constitutional ruling on the new law has been expected to come from a challenge to the caps in a case chosen by the plaintiffs' bar, as has happened in Illinois and other states that passed caps on non-economic damages. Illinois' trial lawyers have made plain their plan to find a malpractice victim who they hope will convince the court that the caps are unfair. But the hospitals don't want to wait.

"It's probably an unusual tactic," says Mark Deaton, general counsel for the Illinois Hospital Assn. "But it's in hospitals' and doctors' interest to get the constitutionality issue resolved as soon as possible."

The case involves a 71-year-old man who developed pressure ulcers, or bed sores, during two extended stays at Advocate Trinity Hospital last fall, according to the lawsuit. His family argues that the hospital staff failed to monitor the sores, which became infected and eventually contributed to his death. Advocate denies the charge.

The hospital in July asked the plaintiffs to declare their intention not to seek non-economic damages in excess of $1 million. When the plaintiff refused, the hospital filed its request for the court to rule on the validity of the caps.

The plaintiff's attorney, Steven M. Levin, declines to comment on the non-economic damages he will seek, but says he has no intention of testing the caps. "We are not making a constitutional challenge in this case," he says. The Circuit Court could refuse to address the validity of the caps.

The plaintiffs' bar argues that a more egregious malpractice case — for example, an infant who suffered brain damage in a botched delivery — would be appropriate for a court to decide the issue. Only the state Supreme Court's word would be final.

"The plaintiffs' bar is very interested in getting this thing resolved, but it ought to be done in the proper fashion and with the proper case that is ripe for adjudication," says Keith Hebeisen, immediate past president of the Illinois Trial Lawyers Assn.

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