LITIGATION BY THREAT IN ILLINOIS
By: Erin S. Davis
As medical malpractice attorneys, we strive to defend every physician and every case, considering every angle, every possible defense, and work to prepare each case for trial.
The scenario that is occurring increasingly often is when a physician with a defensible case is confronted with an “excess verdict” situation. For the uninitiated, this means a case where the verdict potential against the physician is in excess of the applicable insurance coverage. Most physicians carry professional liability insurance coverage of $1-2 million for a given case. If a plaintiff-patient has lost the ability to walk after a spinal surgery with a poor outcome, and the defendant surgeon is found liable at trial, the award by the jury most likely will be in excess of the defendant-physician’s $1-2 million insurance coverage. A motivated plaintiff can collect against the physician’s personal assets for the amount that is not covered by the insurance policy.
Despite years of work by our clients toward the defense of a case, a threat by a plaintiff’s attorney to execute against the personal assets of a physician in the event of an excess verdict often changes the minds of physicians facing imminent trial. They begin to fear for their family, their retirement, and their hard earned financial well-being, despite believing that they treated the patient appropriately. Placing college savings accounts or vacation homes in the hands of a jury can be an awful lot to ask. Hence, the dilemma of with which a physician is presented is whether to seek vindication, or protect hard-earned, well-deserved assets.
This often compels physicians to demand that their insurance company settle the case, thereby putting money in the pocket of an undeserving plaintiff. This, in turn, encourages the filing of more lawsuits by similarly undeserving plaintiffs. As long as a plaintiff can argue there could be damages in excess of an insurance policy’s limits, his or her case might get settled too. Why not give it a try?
You can see how our system has perpetuated this cycle of threats and resulting settlements over the years. How can we fix this? What can we do to offer protections and remedies to deserving patients (who do exist), but also to try to discourage the undeserving from exploiting the weaknesses in our system?
Attempts at tort reform in Illinois have now failed twice. Tort reform has often been aimed at so-called “non-economic damages”. These are the subjective, pain & suffering type damages that we so often see driving up verdict amounts. The problem with capping specific elements of damages continues to be that instead of discouraging frivolous lawsuits (which often see nuisance value type settlements and are thereby not affected by the caps), it instead limits the amounts available to those who are the most legitimately injured.
Rather than attacking the amount of money available for particular types of damages, physicians and hospitals should press for regulations that limit their exposure to the amount of insurance coverage available, but concede to a requirement that every physician and hospital carry a minimum amount of malpractice insurance.
Our neighboring states of Indiana and Wisconsin have established caps systems but have created Patient Compensation Funds. These Funds allow plaintiffs who have obtained all available insurance (i.e. those who are truly catastrophically injured) to appeal to a second source of funding to cover their excess damages. These Patient Compensation Funds are paid into by every physician and hospital in the state. A new system in Illinois combining the limitation of physician’s and hospital’s exposure to available insurance coverage, and creating a Patient Compensation Fund, would be a significant and important action towards helping solve the medical malpractice crisis in Illinois, and keeping doctors in our state.
There is no valid reason for the plaintiffs bar to oppose these types of reform; but, they would of course prefer to use the current system that allows them to threaten the defendant with the possible actions of a run-away jury. However, instituting these reforms will allow physicians to fight the cases they should fight, and settle the cases they should settle. Threatening physicians to settle a case or face a jury of “peers” and risk the loss of their financial security is a practice that must no longer be tolerated in order for our system to sustain its integrity.