SPRINGFIELD | Two years after a high-profile battle over medical malpractice costs, state lawmakers again are debating the complex and politically charged issue of how lawsuits are handled in Illinois.
The players are the same, but this time trial lawyers are the ones pushing two proposals to let plaintiffs collect more money, rather than critics pushing to limit awards.
One of the measures, signed into law last month, allows plaintiffs in wrongful death cases to seek damages for grief, sorrow and mental suffering. Previously in such cases, Illinois law allowed families to collect only for economic damages and some other specific categories, but not for grief.
The Illinois Trial Lawyers Association said 23 other states already allow damages for grief and mental suffering.
And Illinois Sen. Kwame Raoul, D-Chicago, who sponsored the original bill, said Illinois' restrictions were unfair -- families couldn't seek damages for emotional distress, but pet owners could.
"It's outrageous," Raoul said. "I can't think of any survivor of a loved one or somebody's child not being able to talk about grief and sorrow."
But critics of the law say it could amount to an end-run around medical malpractice caps passed in 2005, which limited noneconomic damages, such as for pain and suffering, to $500,000 against doctors and $1 million against hospitals. The caps were an effort to stem a growing tide of doctors leaving the state because of high insurance rates.
Still, advocates for lawsuit limits can claim a victory of sorts: A second, more sweeping proposal that would affect who could be found at fault in civil negligence cases is on hold.
Democrat legislators were pushing a change to Illinois law in response to several recent court rulings on how fault is allocated when several defendants are accused in a single civil negligence case.
For instance, if three defendants are found to be responsible for a wrongful death, does each pay one-third of the damages? Or does one bear 90 percent of the responsibility and therefore pays 90 percent of the damages?
The question gets even trickier if some of the original defendants have settled out of court. Can juries assign some responsibility to people who aren't even in the courtroom?
Generally, Illinois juries are told to ignore defendants that have settled out of court and assign responsibility only to those still named in the lawsuit. But some court rulings have said all defendants should be considered when fault is determined.
Trial lawyers want a new law to clarify that defendants who have settled must be ignored by the jury. Otherwise, they argue, defendants will use an "empty chair" strategy of trying to persuade jurors to pin most of the fault on defendants who have settled and aren't in court to make their case.
But critics say the proposed change would have potentially devastating consequences, claiming it would encourage trial lawyers to target defendants with the "deepest pockets." Lawyers would settle with poorer defendants, even if they bore more responsibility for the incident, and go to court against the ones with money.
