By: Art Peterson, Staff Writer
The Waukegan News Sun
September 24, 2004

Juries, and not the Legislature, should determine damages suffered by victims of medical malpractice, contends Patrick Salvi, a Waukegan-based attorney and former president of the Illinois Trial Lawyers Association.

Salvi has completed a detailed report on the tort reform controversy, which will be published in the October issue of the quarterly ITLA Journal.

While tort reform did not make it out of the last session of the Legislature, Salvi said the ITLA expects a renewed challenge on the national level if President Bush is re-elected.

Caps on malpractice settlements hurt victims, Salvi said, and do not equate to lower insurance costs for physicians. He challenges as inaccurate, contentions that current insurance rates are driving physicians out of state.

Increasing insurance rates, Salvi said, are based not on malpractice payout, but on “mismanagement” of investments by insurance companies during the last decade.

Salvi, whose law firm specializes in malpractice cases, cites the case of a woman whose physician ordered the wrong intravenous fluids, which were not compatible with medications she was receiving. Within a few minutes of being injected with the new fluids, she died.

Because she was a volunteer worker, her family had no economic loss. Bringing a medical negligence case to court is difficult and expensive, Salvi added.

In cases like hers, he said, “the often-proposed $250,000 cap on non-economic damages would almost grant immunity to the health-care providers and insurance companies from significant liability.”

“Thankfully, Illinois has a civil justice system in which victims can recover full and fair compensation decided by a jury,” the attorney said. The woman’s family reached a settlement with the hospital for a net of more than $2 million. “Any less,” he said, “would have been unjust and regrettable.”

The best way to reduce insurance costs, Salvi said, “first and foremost, hospitals, physicians and other health care providers must make a better effort to reduce incidents of medical malpractice.”

He cited a July report which estimated medical errors contributed to nearly 600,000 patient deaths over the past three years.

While a 1993 Gallup poll affirms that a majority of Americans support caps on settlements, Salvi said those “opinions are not based on a strong understanding of the issue. Only 41 percent claim to even ‘somewhat’ follow the news concerning the medical malpractice.”

Illinois, along with Florida, Michigan, Texas, Pennsylvania and Nevada, have the highest premium rates for internists and general surgeons. Four already have limits on non-economic damages, Salvi said, and still continue to have high rate hikes.

He cites a report by the American Insurance Association in which insurers “never promised that tort reform will achieve specific savings,” and that premium levels are affected by “other state-specific factors such as taxes, fees and the degree of market competition.”

In California, medical malpractice insurance premiums had gone up by 450 percent from 1975 to 1988; from 1988 to 2001, the increase was 2 percent. While California has settlement caps, Salvi said, more importantly, insurance rates were frozen, companies required approval from a governmental board for hikes over 15 percent, and companies had anti-trust exemptions removed.

Salvi also cited another report pointing to Illinois figures indicating “a steady increase in the number of doctors licensed in recent years, even in high-risk specialty fields in which doctors reportedly were leaving Illinois in search of lower insurance premiums.”

Any exodus in Illinois is mostly from rural areas, he said, and due to economics and hospital conditions. “You won’t be seeing neurosurgeons and thoracic surgeons in southern Illinois; it doesn’t make economic sense.”

He cites another report that the number of payouts for medical malpractice lawsuits has been flat for three years, and the number of filings per capita has been flat for 10.

Many counties in Illinois have never had a million-dollar verdict against a physician, and a few have never even had a suit of that magnitude filed, Salvi said.

Insurance companies “jacked up their premiums big-time” after their investments plummeted, along with the stock market, Salvi said, “in the early and mid-1990s, their rates were very competitive.”

No insurance company “has ever committed, that if caps are passed, they will lower premiums,” Salvi said.

As a basis for any insurance reform, Salvi said, any insurance rate hikes should have to be approved by an oversight panel.

Capping damages “does not lower premiums, improve health care access, or control health care costs,” Salvi concluded, instead caps “punish the most severely-injured patients.”

For now, the trial lawyers “are generally satisfied with the status quo,” Salvi said, “because juries determine compensation and not the legislature.”

He added, “The system is not skewed in our favor.”

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