Rural Madison County, Illinois has a widespread reputation as a lucrative trial venue, even for people who don’t live or work there. The state legislature has not been helpful in pushing tort reform, so tort reform groups are taking their cause straight to the people – at the fair. Now that’s a populist venue if ever there was one.
Posts Tagged ‘Illinois’
Location, Location, Location
Opponents of medical malpractice tort reform often argue that malpractice premiums are on the rise because insurance companies made bad investments, not because of out-of-control jury awards. But, if that’s so, then why do premiums vary so widely by geography? Consider the rates in Cleveland, Ohio, a city that can lay claim to some of the most aggressive trial lawyers in the state, as well as some of the most generous juries:
A comparison of standard, non-discounted rates the American Physicians Assurance Corporation charges in Ohio, Illinois and Michigan shows doctors in Cuyahoga County paying the highest rates in almost every category, and nearly double the Columbus tariff.
For instance, neurosurgeons in Cuyahoga County paid $212,000 annually, while their colleagues in Columbus paid $118,000 in malpractice premiums. Doctors in the high-risk specialties also paid about $20,000 less in Chicago and Detroit than their counterparts in Cuyahoga County.
‘The fact is, a day doesn’t go by when a Northeast Ohio doctor doesn’t get sued for multimillions of dollars,’ says Myers.
New batch of reader letters
Our pipeline is still sadly backed up, but we’ve posted four new pieces of correspondence on our letters to the editor page. Among them: Peter Nordberg writes in (and I respond) regarding the Illinois practice (see Jul. 23) of letting medical malpractice plaintiffs use an anonymous physician reviewer to certify the merits of their claim; the newly filed lawsuit by disabled applicants asking for more time and fewer distractions in taking the medical school admission exam; and two letters about scuba diving litigation.
Anonymous accusers (of the expert kind)
From the Chicago Sun-Times:
When a doctor is sued for malpractice in Illinois, another physician must sign a statement certifying the lawsuit has merit.
Moreover, the physician alleging malpractice must be an expert in the field. The idea is to prevent frivolous lawsuits.
But there’s a catch. The name of this expert physician is kept secret. …
When the expert’s name isn’t revealed, there’s no way for the defense to question his or her qualifications, said Robert Kane of the Illinois State Medical Society.
The plaintiff’s bar in Illinois is strenuously defending the right of their certifying experts to remain anonymous, saying they might face retaliation if they revealed their identities. However, it seems the current policy also has the convenient effect of insulating the lawyers themselves to some degree from accountability for misconduct:
Dr. William Sullivan, an emergency room physician at Advocate South Suburban Hospital, believes a certifying physician should not be able to hide behind anonymity. Sullivan once was sued at another hospital, along with about 10 other doctors, by the family of a woman who died from car accident injuries.
Sullivan said he was named as a defendant, even though his only involvement in the case was to insert an IV line. When the case against him was dropped, Sullivan, who is also an attorney, turned around and sued the woman’s law firm for “malicious prosecution.”
Sullivan also sued “physician John Doe,” the doctor who certified Sullivan had committed malpractice. Sullivan said he needed to interrogate Dr. Doe in order to prove the case against him had been frivolous. But Sullivan never was able to learn Dr. Doe’s identity, so he had to drop his case.
(Jim Ritter, “Doctors seek to lift veil on malpractice cases”, Chicago Sun-Times, Jul. 5 (link no longer online except as $ archives))(& letter to the editor, Jul. 26).
Madison County medical malpractice numbers
Madison County has its deserved reputation as a “judicial hellhole” because plaintiffs recognize that its judges are friendlier to questionable class actions and asbestos cases, leading it to become a magnet jurisdiction for these actions. (See Apr. 15; Apr. 5; Jan. 5 and links therein; John Stockinger, “Advocates call for reform of Madison County legal system”, Alton Telegraph, Jun. 9.) Now, the Astroturf trial lawyers’ group “Victims and Families United” (Feb. 20) tries to defeat that perception by trumpeting some statistics about medical malpractice in the region. Previously, the group had tried to suggest there was no medical malpractice crisis, despite the fact doctors were leaving the area by the dozens, by pointing out the low number of verdicts in the area; of course, verdicts are a small fraction of payouts to lawyers in settlements. So the trial lawyers have responded by making up some numbers, and trusting that the press won’t delve too deeply into the claims.
By manipulating a couple of denominators, the trial lawyers’ group purports to show that settlement payouts are average for the state. The Madison-St. Clair region has 4.2% of ISMIE’s $270 million in payouts in 2003, they say, and 4.2% of the population; therefore, payouts are supposedly in line with the rest of Illinois. The St. Louis Post-Dispatch uncritically reports these numbers, as well as uncritically calling the trial lawyers’ group a “victims’ rights group.” (William Lamb, “Data do not justify Metro East’s malpractice reputation, group says”, Jun. 10).
But the numbers are bogus. ISMIE doesn’t insure “population”, it insures doctors, and doctors per capita are lower in Madison and St. Clair Counties than elsewhere in the state; off the bat, one would expect lower payout rates for these counties if they were typical for Illinois. Worse: the $270 million denominator is fictional. Using the actual denominator of $226 million (see 2003 ISMIE Annual Report at 25) or $234 million (John Stockinger, “Victims group disputes claims of insurance crisis”, Alton Telegraph, Jun. 11), and the Madison/St. Clair per capita number (a number that already understates the extent of the problem) turns out actually to be 116% to 120% of the statewide average–a number that can be found nowhere in the press coverage. (Patrick J. Powers, “Claims here mirror state”, Belleville News-Democrat, Jun. 12).
At least the Alton Telegraph balances it with other statistics that tend to show the fiction: average payment to plaintiffs in the area jumped from $276,000 to $495,000 between 2002 and 2003. In the past five years, ISMIE has paid out $33.5 million in verdicts, settlements and expenses, while earning only $29.6 million from Madison/St. Clair County-area premiums.
Damage caps for me, but not for thee
Most of organized lawyerdom, as we know, strongly opposes any notion of capping damages recoverable by victims, even as applied to “non-economic” damages claimed for intangible harms such as pain and suffering or emotional distress. It turns out, however, that the bar enthusiastically supports the capping in nearly every state of one particular form of compensation, namely, the compensation of clients who are embezzled from or otherwise defrauded by their lawyers. In Pennsylvania, for example, the official Pennsylvania Lawyer Fund for Client Security (more) caps damages payable to defrauded clients at $75,000, although the loss actually sustained by the victimized client often runs far higher than that. Columnist Don Spatz of the Reading, Pa. Eagle notices the irony: “Even if you can prove your lawyer stole $200,000 from you, you’re out of luck. There’s a cap. … I haven’t heard lawyers worry about caps taking away those victims’ rights.” (“First, lawyer, heal thyself”, Reading Eagle, Mar. 24, at HALT site).
It should be noted that the damages clients attempt to recover after being defrauded by their lawyers are typically direct out-of-pocket economic losses, as opposed to money for humiliation, psychic distress and the like. Yet lawyers in most states have secured payout caps even lower than Pennsylvania’s $75,000, often much lower: Illinois lawyers cap their collective responsibility at a paltry $10,000 per case, for example, and Nevada’s at $15,000. (2002 ABA Center for Professional Responsibility survey of state plans, reprinted at Michigan Bar Association site, PDF, scroll to Chart II, part 2). Perhaps these lawyers are worried that setting caps at a more generous level (or, heaven forfend, removing them entirely) would increase the premiums currently assessed against them to cover the risk pools. In Pennsylvania, according to columnist Spatz, these premiums were recently running at the very extravagant level of $45 per lawyer per year.
In a number of states, it should be noted, lawyers impose an effective cap of zero on this particular kind of claim, by the simple method of not having established any collective client protection scheme at all. And there is a certain very plausible logic to that position: why after all should rank and file attorneys be asked to clean up the messes left by their errant brethren? Is a lawyer his brother’s keeper? It’s just that this argument would sit better were the leaders of the bar not constantly denouncing the medical profession for its alleged failure to police itself.
Diet Coke formula: variation = unfairness
As has been reported here and there for years, Diet Coke as it is served at soda fountains is sweetened in part with saccharin, whereas the version sold in cans and bottles is sweetened with more expensive aspartame. We always assumed that the reason must be that competition between brands is more intense in the supermarket aisle than in restaurants, but the Coca-Cola company cites another reason for the formula variation, saying aspartame is not as stable in fountain use. At any rate, class-action lawyers have now filed lawsuits in Florida, Illinois and California on behalf of beverage drinkers supposedly victimized by this practice. The company says the allegations in the various lawsuits are identical and that it expects to prevail. (Lawrence Viele, Bloomberg/Oakland Tribune, Mar. 26)
Madison County: Ms. Howell’s two hats
In an article about the controversial Lucent class action settlement ($84 million for the lawyers, $8 million for the class; see Apr. 5) the St. Louis Post-Dispatch talks with Joy Howell, spokeswoman for lead class counsel Stephen Tillery, who’s among Madison County’s most prominent class-action lawyers. Later in the piece it emerges that Ms. Howell “also serves as a spokeswoman for the Coalition to Preserve Access to Justice”, a group that vehemently opposes the reform-minded Class Action Fairness Act on behalf of “more than 80 national consumer, environmental and civil rights groups”. Hmmm. (Trisha L. Howard, “Nixon backs state role in class action suits”, St. Louis Post-Dispatch, Apr. 3). And the local press is casting a skeptical eye on what the Post-Dispatch calls “the strange little courthouse in Edwardsville” (Illinois) and the doings of Judge Nicholas C. Byron in particular (see “It’s a Mad, Mad, Mad Madison County”, Apr. 22) (“Madison County: What’s the judge hiding?” (editorial), St. Louis Post-Dispatch, May 1; Brian Brueggemann, “Judge Byron endures hot seat”, Belleville News-Democrat, May 3; “‘Judicial hellhole’ deepens with law firm’s banishment” (editorial), Bloomington Pantagraph, Apr. 27). Last month “Byron ordered a newspaper reporter to leave the courtroom Monday when [attorney Rex] Carr and Tillery began arguing about the apparently sensitive issue of how much money the firm has earned.” (Brian Brueggemann, “Class-action lawyers fight over money”, Belleville News-Democrat, Apr. 11, and how’s that for a quotidian headline?). Finally, visions of sugar plums seem to have gone a-glimmering for class action attorney Judy Cates, of columnist-suing fame, when a Belleville jury rejected her lawsuit demanding $300 million from Allstate because it does not reimburse its auto policyholders after crashes for the decline in the resale value of their fully repaired cars. According to defense attorney H. Sinclair “Rod” Kerr, the lead plaintiffs, Michael and Tiffany Sims of East St. Louis, Ill., “decided to sue only after a relative called their attention to a newspaper ad placed by Cates’ law firm seeking plaintiffs against Allstate.” (Robert Goodrich, “Jury rejects class-action suit over car repairs”, St. Louis Post-Dispatch, Apr. 29).
One less Illinois doctor
“Dr. Eileen Murphy has been delivering babies for 18 years, including Governor [Rod] Blagojevich’s daughter, Anne. But on April 30 she’ll see her last patient. She just can’t afford to do it anymore. … The problem’s not her $170,000 a year salary. It’s her insurance premium which jumped to $138,000 this year. Without insurance she can’t get hospital privileges. ‘If anything goes wrong, even if it’s a possible complication, a possible natural outcome, you can almost guarantee that you are going to be sued,’ Murphy said.” (“Doctors Protest Malpractice Rates”, CBS 2 Chicago, Mar. 24). Murphy plans to become a junior high school teacher instead, according to news reports. “I am going on strike for tort reform,” she wrote in a letter to her patients. More: Spoons Experience, Capitol Grilling bulletin board. Even more: Chicago Tribune on state’s crisis (“The doctors are leaving”, Apr. 18) (editorial); Maureen Martin, Heartland Institute, Mar. 26; Patrick J. Powers, “Doctor laments loss of friends to other states”, Belleville News-Democrat, Jan. 14.
The Hartford Courant on Apr. 4 (reg) ran a guest commentary by an attorney named Henry Kopel (“My Colleagues Are Wrecking Health Care”) who is married to an obstetrician/gynecologist and who begins his column: “I am an attorney, and I am ashamed of what my profession is doing to health care in America.” (reprinted: Connecticut College of Emergency Physicians). And here are a couple more medical-liability sites we haven’t previously noted: Doctors for Medical Liability Reform (various physician specialty groups), Protect Access to Care & Treatment (American Academy of Orthopedic Surgeons).
Catherine Crier show today
I’m scheduled to be a guest on Court TV’s Catherine Crier Live this afternoon, discussing this website. On Monday morning in Australia (Sunday afternoon in the States) I’m slated to join the Australian Broadcasting Corp. on its Radio National Breakfast show, for a discussion of personal responsibility and obesity lawsuits. And on Monday morning, 8:30 Central, I’ll be a guest on the “Dan, Doc and Dave” show on Peoria, Ill.’s WMBD.