Medical Malpractice Caps in Illinois

Written by Bruce Livingston

The courts in Illinois have consistently held CAPS on medical malpractice to be unconstitutional given the language of the Illinois Constitution. According to the courts, the defense insurance industry lobby has caused the Constitutional violation by changing language in the Law which, although clever, amounts to the same improper result. Recently, for the third time now, an Illinois Court has found those palpations of the language to be Unconstitutional given that they too result in CAPS on medical malpractice cases. The Courts have held that The Illinois Constitution provides specifically for the right to trial by jury, legal due process and a remedy for every wrong. It also prohibits special legislation for any single group. The CAPS on medical malpractice violate every one of these Constitutional proscriptions according to the consistent holdings of the Illinois Courts as follows.

By mandating CAPS the Illinois General Assembly is handcuffing the actual jury that hears each individual case and in effect telling that jury what it can award. This violates the guarantee to a trial by jury. A trial by jury means a trial by jury. The jury is the trier of fact and the body that determines the award to be given. The Constitution rejects a one size fits all solution for complicated cases provided by a group of individuals who never heard the facts of any of them.

CAPS violate the prohibition against special legislation. They provide a special protection for one heavily funded and sophisticated group only and none for anyone else.

CAPS deny victims of medical malpractice from obtaining the award (the remedy) that is called for by the wrong as determined by the judge or jury. No other class of victim is prohibited from being made whole again. For every wrong there is a right and CAPS negate this.

Everything together violates due process. Hopefully, this latest result might encourage the legal and medical communities to come together and try to figure something out that helps the well meaning doctors but also protects victims. There must be a way.