1 STATE CONSTITUTIONAL LAW JUDICIAL BRANCH MEDICAL MALPRACTICE DAMAGE CAPS VIOLATE THE ILLINOIS CONSTITUTION S SEPARATION OF POWERS CLAUSE BY EFFECTUATING A LEGISLATIVE REMITTITUR IN PLACE OF THE JUDICIARY S PREROGATIVE IN ASSESSING THE PROPRIETY OF NON- ECONOMIC COMPENSATORY DAMAGES. LEBRON V. GOTTLIEB MEM L HOSP., 930 N.E.2D 895 (ILL. 2010). Danielle L. Sgro* I. INTRODUCTION In Lebron v. Gottlieb Memorial Hospital, 1 the Illinois Supreme Court held that an Illinois statute 2 limiting non-economic damages 3 in medical * J.D. May 2012, Rutgers University School of Law Camden; B.A. May 2009, Hood College N.E.2d 895 (Ill. 2010). 2. Section of the Illinois Compiled Statutes reads: (a) In any medical malpractice action or wrongful death action based on medical malpractice in which economic and non-economic damages may be awarded, the following standards shall apply: (1) In a case of an award against a hospital and its personnel or hospital affiliates, as defined in Section 10.8 of the Hospital Licensing Act, the total amount of noneconomic damages shall not exceed $1,000,000 awarded to all plaintiffs in any civil action arising out of the care. (2) In a case of an award against a physician and the physician's business or corporate entity and personnel or health care professional, the total amount of non-economic damages shall not exceed $500,000 awarded to all plaintiffs in any civil action arising out of the care. (3) In awarding damages in a medical malpractice case, the finder of fact shall render verdicts with a specific award of damages for economic loss, if any, and a specific award of damages for non-economic loss, if any. 1151
2 1152 RUTGERS LAW JOURNAL [Vol. 42:1151 malpractice actions was unconstitutional, because this statutory damages cap violated the Illinois Constitution s separation of powers clause 4 by functioning as a legislative remittitur, 5 encroaching upon the judiciary s prerogative in determining whether a jury s assessment of damages is excessive. 6 In its holding, the Illinois Supreme Court looked to the Illinois Constitution s separation of powers provision, 7 the Illinois statute 8 capping medical malpractice damages, and Illinois Supreme Court precedent. 9 The court reasoned that the issue was not whether the Illinois General Assembly could change the common law, but whether the legislature s attempt to limit damages violated the separation of powers clause. 10 The court held that the damages cap, as set forth in the Illinois Code, 11 violated the separation of powers clause 12 and was invalid. 13 The trier of fact shall not be informed of the provisions of items (1) and (2) of this subsection (a). 735 ILL. COMP. STAT. ANN. 5/ (West 2008). 3. See 735 ILL. COMP. STAT. ANN. 5/ (b) (West 1998). In full, this statute reads: In all actions on account of bodily injury, death, physical damage to property based on negligence, or a product liability action as defined in Section ,... the following terms have the following meanings: Economic loss or economic damages means all damages which are tangible, such as damages for past and future medical expenses, loss of income or earnings and other property loss. Non-economic loss or non-economic damages means damages which are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society. Compensatory damages or actual damages are the sum of economic and noneconomic damages. Id. 4. Article II, section 1 of the Illinois Constitution reads: The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another. ILL. CONST. art. II, Remittitur is defined as [t]he process by which a court requires either that the case be retried, or that the damages awarded by the jury be reduced. BLACK S LAW DICTIONARY 1321 (8th ed. 2004). 6. See Lebron, 930 N.E.2d at 908; see also Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1081 (Ill. 1997). 7. ILL. CONST. art. II, See 735 ILL. COMP. STAT. ANN. 5/ (West 2008). 9. See Best, 689 N.E.2d at See Lebron, 930 N.E.2d at See 735 ILL. COMP. STAT. ANN. 5/ (West 2008). 12. ILL. CONST. art. II, 1.
3 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1153 This Comment analyzes the soundness of the Illinois Supreme Court s holding and discusses the broader national controversy between courts and legislatures over the establishment of legislatively created damage caps since various legislatures across the country have responded to the perceived health care crisis by capping malpractice damages. This Comment concludes with recommendations and implications by discussing that although the Illinois Supreme Court s separation of powers analysis proves sound, many questions still linger across the nation on how to reduce premiums and lessen provider liability in order to retain doctors in places that need them. 14 II. STATEMENT OF THE CASE In November 2006, plaintiffs Abigaile Lebron ( Abigaile ), a minor, and her mother, Frances Lebron ( Lebron ), filed a medical malpractice and declaratory judgment action against defendants Gottlieb Memorial Hospital, 13. See Lebron, 930 N.E.2d at See David M. Goldhaber & David J. Grycz, Illinois Adds Fuel to the Fiery National Healthcare Debate: Supreme Court Strikes Damage Caps and Other Healthcare Reforms, 22 No. 5 HEALTH LAW. 19, 19 (2010). The Wall Street Journal reported that Madison and St. Clair counties together saw approximately 160 physicians leave during the few years leading up to See generally Sherman Joyce, Judicial Hellholes, WALL ST. J., Dec. 15, 2004, at A20; see also William Lamb, Illinois Trauma Cases Surge at SLU, ST. LOUIS POST-DISPATCH, Jan. 11, 2005, at A01 ( [s]teep increases in malpractice insurance premiums particularly for doctors in high-risk specialties such as neurosurgery and obstetrics have forced at least 160 doctors in Madison and St. Clair counties to retire or leave the area, according to many doctors and politicians. ). Many of the Illinois doctors left for the neighboring states of Wisconsin, Indiana, and Missouri, all three of which have imposed some type of tort reform. See, e.g., Patrick J. Powers, Doctor Exodus Continues, BELLEVILLE NEWS-DEMOCRAT, Nov. 9, 2003, at 1A (noting that at least twenty doctors in St. Clair and Madison counties were notified earlier this fall by their respective insurance providers that coverage would end Dec. 31, which sent doctors clamoring for new providers to avoid an unwarranted exodus, but many doctors who lose their coverage have made public statements that they plan to move to other states). Wisconsin and Missouri have both capped non-economic damages in medical liability cases in the amount of $750,000 and $350,000, respectively. See WIS. STAT. ANN (West 2010); MO. ANN. STAT (West 2010). Indiana has capped total damages in medical malpractice cases at $250,000 against any one provider and $1.25 million against all providers and the State s Patient Compensation Fund. See IND. CODE ANN (West 2004), available at See also Joy Davia, Greener Pastures: High Malpractice Insurance, Poor Economy Discourages Many Doctors from Working in W.Va., CHARLESTON GAZETTE, Nov. 10, 2002, at P1A; see also Joy Davia, Doctors Struggle with Different Malpractice Problems: Some See Leaving as Only Alternative, CHARLESTON GAZETTE, Apr. 7, 2002, at P1A. One doctor stated, [m]alpractice may not directly be the reason why I m leaving, but it's definitely a factor. Id.
4 1154 RUTGERS LAW JOURNAL [Vol. 42:1151 Roberto Levi-D Ancona, M.D., and Florence Martinoz R.N. 15 According to the five-count complaint, Lebron was under the care of Dr. Levi-D Ancona during her pregnancy. 16 On October 31, 2005, Lebron was admitted to Gottlieb Memorial Hospital where Dr. Levi-D Ancona delivered Abigaile by Caesarean section, and Martinoz assisted in the delivery and provided the principal nursing care from the time of Lebron s admission. 17 Plaintiffs alleged, in counts I through IV, that as the direct and proximate result of certain acts and omissions by defendants, Abigaile sustained numerous permanent injuries. 18 In count V relevant to this case, plaintiffs sought a judicial determination of their rights with respect to Public Act and a declaration that certain provisions of the Act violate the Illinois Constitution. 20 Plaintiffs alleged that Abigaile s injuries would greatly exceed the applicable limitations on non-economic damages under the Act. 21 Citing Illinois Supreme Court precedent, 22 plaintiffs alleged that the limitation on damages violated the separation of powers clause of the Illinois Constitution 23 by permitting the Illinois legislature to supplant the judiciary s authority in assessing the propriety of non-economic damages. 24 In February 2010, the Illinois Supreme Court held that the damages cap, at issue in the Illinois statute, 25 violated the separation of powers clause of the Illinois Constitution. 26 The circuit court determined that the statutory cap on non-economic damages operated as a legislative remittitur in violation of 15. See Lebron, 930 N.E.2d at See id. at See id. 18. See id. (discussing that these injuries included but were not limited to, severe brain injury, cerebral palsy, cognitive mental impairment, inability to be fed normally such that she must be fed by a gastronomy tube, and inability to develop normal neurological function. ). 19. See generally 735 ILL. COMP. STAT. ANN. 5/ (West 2008). 20. See Lebron, 930 N.E.2d at 900 (discussing that although plaintiffs challenged several provisions of the Act, at issue was plaintiff s challenge to the caps on non-economic damages set forth in section of the Illinois Code). 21. See id. (stating that Abigaile has sustained disability, disfigurement, pain and suffering to the extent that damages for those injuries will greatly exceed the applicable limitations on non-economic damages under Public Act ). 22. See generally Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1057 (Ill. 1997). 23. ILL. CONST. art. II, See Lebron, 930 N.E.2d at See 735 ILL. COMP. STAT. ANN. 5/ (West 2008). 26. ILL. CONST. art. II, 1.
5 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1155 the Illinois Constitution s separation of powers clause. 27 The Illinois Supreme Court ultimately affirmed the judgment of the circuit court and found the statute facially invalid, and remanded the matter to the circuit court for further proceedings, 28 ultimately splitting along ideological lines. 29 III. HISTORY OF THE AREA The ideological separation of powers battle that raged in Lebron has its roots in the battle that framed the United States Constitution. Separation of powers jurisprudence began as a contentious issue amongst the framers of the United States Constitution in determining how to establish a government that functioned with equity and efficiency. Though the philosophy of a governmental separation of powers can be traced back further than the debates of the framers, the separation of powers mantra that exists today was solidified through the countless debates that took place around the time of the ratification of the United States Constitution. James Madison wrote that in designing the structure of a well-ordered government, writers of constitutions should give those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.... Ambition must be made to counteract ambition. 30 The framers of the United States Constitution thought that interbranch strife would keep each branch in check. 31 Thus, the Constitution divides authority among legislative, executive, and judicial branches, 32 granting responsibility to each department, but allowing each branch to exercise some control over the actions of the others. 33 The contest for power amongst the branches produced the stability the framers 27. See Lebron, 930 N.E.2d. at 901. Gottlieb Hospital, Martinoz, and Dr Levi-D Ancona s appeals were consolidated for the Illinois Supreme Court s review. See id. 28. See id. at See Goldhaber & Grycz, supra note 14, at THE FEDERALIST NO. 51, at 347 (James Madison) (Carl van Doren ed., 1973). 31. See id. at 348 ( [T]he constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other - that the private interest of every individual may be a sentinel over the public rights. ). 32. See U.S. CONST. art. I, 1 (establishing legislative branch); id. art. II, 1 (authorizing executive branch); id. art. III, 1 (chartering judicial branch). 33. See, e.g., id. art. I. 7, cl. 4 (establishing presidential veto); id. art. I, 9, cl. 7 (prescribing congressional power over all appropriations); id. art. II, 2, cl. 4 (establishing Senate check on presidential power to make treaties).
6 1156 RUTGERS LAW JOURNAL [Vol. 42:1151 considered necessary for good government. 34 Madison predicted that tyranny would result if one branch were to become too powerful and take unto itself the functions of another. 35 State constitutions reflect a similar structure; the constitutions of states existing at the time of the Federal Constitutional Convention influenced the writers of the United States Constitution. 36 Furthermore, state constitutions written after the adoption of the United States Constitution mirror the federal separation of powers scheme. 37 Thus, state governments both influenced and were influenced by the separation of powers philosophy that sparked the debates surrounding constitutional ratification. Today, state separation of powers schemes have kindled controversy, allowing state branches of government to experience inter-branch struggles for power much like those the framers envisioned that the federal government would experience. 38 As history has progressed, new problems have arisen for both the federal and state governments in how to apply their separation of powers philosophy to certain situations in which the powers of governance seem to overlap. Thus, inter-branch conflicts have become very common when courts, legislatures, and the executive branch all struggle to define and interpret how to apply separation of powers provisions to new societal issues. 39 One interbranch struggle currently waging throughout the United States is the battle between courts and legislatures for control over the tort system See generally THE FEDERALIST NO. 51, supra note 30 (promoting merits of establishing checks and balances among independent government branches as means to achieve stability). 35. See id. at 347 (warning against gradual concentration of the several powers [of government] in the same department... ). 36. See MASS. CONST. art. 30, pt. I (providing in 1780 for division of government power between independent executive, legislative, and judicial branches). See also THE FEDERALIST NO. 47, at (James Madison) (Carl van Doren ed., 1973) (discussing separation-ofpowers provisions of state constitutions existing in 1788). 37. See, e.g., ILL. CONST. art. II, 1 (establishing three independent branches in state government); OHIO CONST. art. II, 1 (prescribing legislative branch); id. art. III, 5 (chartering executive branch); id. art. IV, 1 (authorizing judicial branch); OR. CONST. art. III, 1 (establishing three independent branches). 38. Matthew W. Light, Note, Who s The Boss?: Statutory Damage Caps, Courts, And State Constitutional Law, 58 WASH. & LEE L. REV. 315, 317 (2001). 39. See Carly N. Kelly & Michelle M. Mello, Are Medical Malpractice Damages Caps Constitutional? An Overview of State Litigation, 33 J.L. MED. & ETHICS 515, 525 (2005) (discussing that the legislative branch infringes on judicial power and determine[s] judicial controversies when it enacts laws that alter or effect court or jury procedures ) (quoting Judd ex rel. Montgomery v. Drezga, 103 P.3d 135 (Utah 2004)). 40. See Stephen J. Werber, Note, Ohio Tort Reform Versus the Ohio Constitution, 69 TEMP. L. REV. 1155, 1156 (1996) (stating that the Ohio Constitution forms the battleground
7 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1157 The conflict over modern tort reform originated in the liability insurance crises of the 1970s and 1980s. 41 In response to insurance cost increases, nearly every state adopted tort reform measures of some sort. 42 In response to this crisis, many states proposed different methods of solving the rising costs of health care provider liability, and some states enacted statutory damage caps for medical malpractice suits to combat these rising costs. 43 In 1975, the Illinois General Assembly enacted legislation in the form of a limitation on medical malpractice recovery to deal with the existing malpractice insurance crisis. 44 One year later, the Illinois Supreme Court in Wright v. Central Du Page Hospital Association found that the damages cap limitation violated the Illinois Constitution. 45 for an ongoing war between the tort policies and power of the judicial branch and those of the legislative and executive branches of state government. ). 41. See PETER W. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES (1988) (discussing liability insurance crisis of 1970s and 1980s). Legislatures and courts have struggled over tort reform before, most notably in the context of workers compensation laws, which replaced common law tort actions with state insurance schemes. See Ives v. S. Buffalo Ry. Co., 94 N.E. 431, 441 (N.Y. 1911) (declaring that workers compensation law was unconstitutional taking of property without compensation). 42. See Elizabeth A. Schartz, Comment, Caps, Crisis, and Constitutionality Evaluating the 1986 Kansas Medical Malpractice Legislation, 35 U. KAN. L. REV. 763, 765 n.18 (1987) (reporting that nearly every state enacted tort reform laws). 43. There have been five major constitutional grounds for challenging medical liability reform at the state level. First, damage caps have been challenged using the opencourts guarantee contained in many state constitutions. Second, damage caps have been said to violate the right to trial by jury. Third, damages caps have been alleged to violate both federal and state equal protection guarantees. Fourth, damages caps have been challenged using federal and state due process provisions. Finally, damages caps are occasionally challenged under a separation of powers theory. Kelly & Mello, supra note 39, at Carolyn Victoria J. Lees, Note, The Inevitable Reevaluation of Best v. Taylor in Light of the Illinois Health Care Crisis, 25 N. ILL. U. L. REV. 217, 224 (2005) (stating that [i]n part, the legislature provided that the maximum recovery on account of injuries by reason of medical, hospital, or other healing art malpractice shall be $500,000. ) (quoting ILL. REV. STAT. ch. 70, para. 101 (1975)). 45. Wright v. Cent. Du Page Hosp. Ass n, 347 N.E.2d 736 (Ill. 1976). See, e.g., Carson v. Maurer, 424 A.2d 825, (N.H. 1980) (although medical malpractice statutes attempted to reduce malpractice and stabilize insurance risks, arbitrary damage limitation which precluded seriously injured victim from compensation constituted a violation of equal protection); Arneson v. Olson, 270 N.W.2d 125, 136 (N.D. 1978) (in absence of state-wide cost crisis, drastic limitation on recovery in medical malpractice action violates equal protection provision of North Dakota Constitution); Baptist Hosp. v. Baber, 714 S.W.2d 310 (Tex. 1986) (per curiam) (discussing that a statute limiting medical malpractice liability of a hospital was held unconstitutional as violating equal protection).
8 1158 RUTGERS LAW JOURNAL [Vol. 42:1151 In 1995, Illinois legislators enacted the Civil Justice Reform Amendments, affecting many areas of tort law and pertaining primarily to personal injury actions. 46 Central to the Act was the $500,000 limit on compensatory damages for non-economic injuries. 47 However, in 1997, the Illinois Supreme Court held that this limit on damages was unconstitutional in the seminal case of Best v. Taylor Machine Works. 48 In Best, plaintiffs sought declaratory and injunctive relief against the enforcement of the Civil Justice Reform Amendments. 49 The circuit court found that the $500,000 limit on compensatory damages for non-economic injuries violated the Illinois Constitution. 50 Similarly, the Illinois Supreme Court held that the compensatory damages cap violated the separation of powers clause because the cap functioned as an unconstitutional legislative remittitur, which supplanted the judiciary s prerogative in assessing damages. 51 In Illinois in 2004, a national discussion was well underway over the need for reform to address the rising costs of medical malpractice insurance. 52 Reform advocates believed legislation was a necessary response to the perceived Illinois health care crisis. 53 According to proponents, costly medical malpractice litigation raised premiums for malpractice insurance, caused doctors to leave the state, and resulted in medical providers limiting services to Illinois residents. 54 Non-economic damages were repeatedly cited as the key driver behind increasing medical malpractice verdicts. 55 In the most recent challenge to an Illinois statute capping non-economic damages in medical malpractice actions, the Illinois Supreme Court cited Best and held that damages caps in an Illinois statute were unconstitutional because the caps encroached upon the judicial prerogative in determining 46. See Lees, supra note 44, at See id. The Act defined non-economic damages as damages which are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society. Id. (quoting 735 ILL. COMP. STAT. 5/ (b) (2002)). 48. Id. (quoting Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1081 (Ill. 1997). 49. Id. 50. Id. 51. Id. at See Goldhaber & Grycz, supra note 14, at 19. Around this time, frequent media reports focused on physicians leaving Illinois to practice medicine in bordering states. Id. 53. Id. 54. See id. 55. See id.
9 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1159 whether a jury s assessment of damages is excessive. 56 In other words, the most recent word on this issue in Illinois is that damage caps are unconstitutional because they intrude on the judiciary s absolute right of remittitur and violate the state s separation of powers provision. 57 Though these caps have been dealt a potentially fatal blow in Illinois, many other states have argued that damage caps are a solution to a larger public policy problem that are correctly put forth by the legislative branch. 58 As a result of the contention on this issue, damage caps verdicts, in relation to separation of powers jurisprudence, still remain inconsistent on a national level Lebron, 930 N.E.2d at 908. Joseph Story was an Associate Justice of the U.S. Supreme Court from 1811 to In 1822, while sitting as a circuit judge for the U.S. District Court for the District of Massachusetts, Justice Story authored the opinion of Blunt v. Little. See Blunt v. Little, 3 F. Cas. 760 (D. Mass. 1822) (No. 1,578). In Blunt, Justice Story essentially created the doctrine of judicial remittitur by ordering a new trial after finding a jury s $2,000 verdict to be excessive and based on error. See David Fink, Note, Best v. Taylor Machine Works, The Remittitur Doctrine, and the Implications for Tort Reform, 94 NW. U. L. REV. 227, 231 (1999). 57. See Goldhaber & Grycz, supra note 14, at 20. While remittitur is widely recognized, it is used sparingly. Courts including the U.S. Supreme Court, have questioned the validity of the doctrine because it limits jury discretion. To ensure that common law and constitutional rights are not infringed by application of remittitur, courts generally follow four rules when applying remittitur: (1) remittitur must be exercised with restraint, (2) the verdict must be under the influence of passion or prejudice or the award must shock the judicial conscience, (3) the reduction in the award is only to the maximum amount that the jury could have reasonably found, and (4) the plaintiff must consent in lieu of a new trial. These requirements vary somewhat by jurisdiction. Fink, supra note 56, at See also ILL. CONST. art. II, 1 (noting the separation of powers between the different branches of government). 58. See Kelly & Mello, supra note 39, at See Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007) (discussing that statutory limit on non-economic damages did not exceed legislature s power and impermissibly intrude on judicial power to decide damages); accord Garhart v. Columbia/Healthone, LL.C., 95 P.3d 571, (Colo. 2004) ( [w]e join these states that have upheld damages caps as not infringing impermissibly on the judicial role in the separation of powers. ); Rhyne v. K-Mart Corp., 594 S.E.2d 1, 7 8 (N.C. 2004) (statutory damages caps are a proper exercise of legislature s policymaking authority, and because they do not grant the legislature the authority to reduce excessive awards on a case-by-case basis, they are not a form of remittitur); Judd v. Drezga, 103 P.3d 135 (Utah 2004) (statutory cap on non-economic damages upheld against separation of powers challenge on the grounds that it was permissible exercise of the legislature s power to declare what the law shall be, not an improper usurpation of the judiciary s function to decide controversial issues); Gourley v. Neb. Methodist Health Sys., Inc., 663 N.W.2d 43, 77 (Neb. 2003) (damages cap does not act as legislative remittitur or otherwise violate principles of separation of powers because it does
10 1160 RUTGERS LAW JOURNAL [Vol. 42:1151 A. The Majority IV. THE COURT S REASONING The Majority 60 held that the Illinois legislature s cap on medical malpractice damages was unconstitutional because it effectuated a legislative remittitur, which encroached upon the judiciary s inherent authority of judicial remittitur. 61 The court stated that the purpose of the separation of powers clause is to ensure that the whole power of two or more branches of government shall not reside in the same hands. 62 The court further reasoned that [e]ach branch of government has its own unique sphere of authority that cannot be exercised by another branch and the legislature is prohibited from enacting laws that unduly infringe upon the inherent powers of judges. 63 Though recognizing that the separation between the three branches of government is not absolute and unyielding and may overlap, the court emphasized that the determination of whether a statute violates the separation of powers clause rests with the judiciary. 64 The court reasoned that by capping non-economic damages, the damages caps forced trial courts to decrease any jury awards in excess of the statutory cap, a requirement the court believed impermissibly encroached on the judiciary s power to perform the same task through remittitur. 65 The court also reviewed the doctrine of remittitur, which has long been recognized as a part of Illinois law. The court noted that the doctrine has been a traditional and inherent power of the judicial branch, which is to be not ask legislature to review a specific dispute and determine the amount of damages. Instead, without regard to the facts of a particular case- the cap imposes a limit on recovery in all medical malpractice cases as a matter of legislative policy); Waste Disposal Ctr., Inc. v. Larson, 74 S.W.3d 578, 590 (Tex. Ct. App. 2002); Evans v. State, 56 P.3d 1046, 1055 (Alaska 2002); Zdrojewski v, Murphy, 657 N.W.2d 721, 739 (Mich. Ct. App. 2002); Verba v. Ghapery, 552 S.E.2d 406, 411 (W. Va. 2001); Kirkland v. Blaine Cnty. Med. Ctr., 4 P.3d 1115, 1122 (Idaho 2000); Guzman v. St. Francis Hosp., Inc., 623 N.W.2d 776 (Wis. Ct. App. 2001); Owens-Corning v. Walatka, 725 A.2d 579, (Md. Ct. Spec. App. 1999); Pulliam v. Coastal Emergency Serv. s of Richmond, Inc., 509 S.E.2d 307, 319 (Va. 1999). 60. Chief Justice Fitzgerald delivered the opinion of the court. See Lebron, 930 N.E.2d. at See id. at 908, See id. at 905. See also Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1078 (Ill. 1997) (quoting People v. Walker, 519 N.E.2d 890, 892 (Ill. 1988)). 63. See Lebron, 930 N.E.2d at 905 (quoting Best, 689 N.E.2d at ). 64. See id. 65. See id. at 908; David M. Goldhaber & David J. Grycz, Three Strikes and You re Out, 24-APR CBA REC. 30, 33 (2010).
11 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1161 exercised in appropriate circumstances when correcting an excessive jury verdict and when its application presents a question of law for the court. 66 Where a jury verdict falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience, a court has a duty to correct the verdict by ordering a remittitur, with the plaintiff's consent. 67 If consent is not given, the court has a duty to order a new trial, and this procedure is considered on a case-by-case basis, so that the court can carefully examine the particular evidence and circumstances of every case to determine whether it must override the jury's verdict, something that proves impossible in the case of a legislatively imposed cap on damages. 68 The majority also rejected the notion that the damages caps were just one part of a response to the health care crisis that required insurers, medical professionals, and consumers to make sacrifices, rejecting the contention that the law was rationally related to serve a legitimate, legislative interest. 69 In making their case, defendants had identified various damages caps adopted in nineteen other states throughout the country, but the majority thought little of this point stating, [t]hat everybody is doing it is hardly a litmus test for the constitutionality of the statute. 70 Though the court did agree with defendants in distinguishing aspects of the present case from Best, because the scope of the statute in Best was much broader than the statute in the instant case, 71 the encroachment upon the judiciary s power was equated with Best. 72 Thus, the majority concluded that the damages caps violated the separation of powers clause of the Illinois Constitution by imposing a legislative remittitur in place of the judiciary s role in assessing the propriety of non-economic damages See Lebron, 930 N.E.2d at 905 (citing Best, 689 N.E.2d at 1079). 67. See Best, 689 N.E.2d at See id. at Lebron, 930 N.E.2d at Id. at 914. The majority described the dissent as peppered with emotional and political rhetoric ill-suited for the discourse of the state s highest court. Goldhaber & Grycz, supra note 65, at 34 (quoting Lebron, 930 N.E.2d at 915). 71. The damages cap in Best in section applied to all actions, whether based on the common law or statute that sought damages on account of death, bodily injury, or physical damage to property based on negligence, or product liability based on any theory or doctrine. 735 ILL. COMP. STAT. ANN. 5/ (a) (West 1996). In contrast, the damages cap in section applies to any medical malpractice action or wrongful death action based on medical malpractice. 735 ILL. COMP. STAT. ANN. 5/ (a) (West 2008). 72. Lebron, 930 N.E.2d. at Id. at
12 1162 RUTGERS LAW JOURNAL [Vol. 42:1151 B. The Dissent Justice Karmeier 74 authored the dissent in part to the majority s decision regarding the constitutional violation of the separation of powers clause. 75 The dissent framed its argument by discussing President Obama s ongoing efforts to reform the nation s health care system, specifically his acknowledgement that reforming malpractice laws may reduce the country s health care costs. 76 The dissent generally argued that the damages caps represented a public policy determination by the General Assembly that was owed deference by the court. 77 First, Karmeier argued that Illinois public and social policy should come from the legislature through the enactment of laws. 78 Karmeier reasoned that since courts generally do not determine what public policy should be, this determination is rightly vested in the legislative branch. 79 Furthermore, under Illinois law, Justice Karmeier noted that courts second-guessing the wisdom of legislative determinations would be prohibited by article II, section 1 of the Illinois Constitution. 80 Next, Karmeier argued that Best 81 is not the appropriate vehicle for resolving the question presented because of certain jurisprudential concerns. 82 Karmeier asserted that no basis for assessing the constitutionality of the statute existed because the issues concerned whether defendants should prevail, or if the damages awarded by the jury should be less than the limits imposed under the statute, not whether the statute itself was unconstitutional. 83 Karmeier argued that the court has held in the past that interests of efficiency and judicial economy do not justify addressing a 74. Justice Karmeier concurred in part and dissented in part with the majority opinion. See id. at 917 (Karmeier, J., dissenting). 75. ILL. CONST. art. II, See Goldhaber & Grycz, supra note 65, at See id. 78. See Lebron, 930 N.E.2d at 919 (Karmeier, J., dissenting). Karmeier noted, [i]t is within the broad discretion of the legislature to determine not only what the public interest and welfare require, but to determine the measures needed to secure such interest. Id. (internal quotation marks omitted). 79. See id. at 920 (discussing that [b]ecause the formulation and implementation of public policy are principally legislative functions, the courts afford substantial deference to legislative enactments. ). 80. ILL. CONST. art. II, See generally Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill. 1997). 82. See Lebron, 930 N.E.2d at 922 (Karmeier, J., dissenting). 83. See id.
13 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1163 constitutional issue before it is necessary to reach it. 84 Furthermore, Karmeier discussed that jurisprudential constraint on constitutional questions are not principles courts are free to ignore. 85 By proceeding to the constitutional issue in this case, the dissent maintained that the majority s holding infringed on the authority of the legislative branch. 86 Finally, Karmeier argued that the propriety of judicial remittitur itself should be questioned. 87 Karmeier noted that the doctrine of remittitur was abolished in certain states and the doctrine exists today in some states through authorization from state legislatures. 88 Karmeier asserted that the view taken by the majority, that judicial remittitur enjoys special constitutional protection, is unsupported by the doctrine s origins and history. 89 Moreover, Karmeier noted that legislatively imposed limits on damages in civil cases are not comparable to traditional judicial remittiturs. 90 Karmeier maintained that when a court reduces a jury award to comply with a statutory damages cap, it is not reexamining a jury s verdict, but rather it is simply implementing a legislative policy decision to reduce the amount recoverable to that which the legislature deems reasonable. 91 Because reduction of an award to comply with legal limits does not involve a substitution of the court s judgment for that of the jury, but instead is a determination that a higher award is not permitted as a matter of law, it is not a remittitur at all. 92 Karmeier concluded by arguing that many other state courts considering damages caps have uniformly held that such caps are distinguishable from judicial remittiturs and constitute a rightful exercise of legislative power Id. (quoting People v. Hampton, 867 N.E.2d 957 (Ill. 2007)). 85. See id. (citing Ultsch v. Ill. Mun. Retirement Fund, 874 N.E.2d 1 (Ill. 2007)). 86. See id. 87. See id. at See id. The doctrine of judicial remittitur was abolished in Missouri by the state s supreme court, which noted that its application in the appellate courts has been questioned since its inception in Missouri as an invasion of a party s right to trial by jury and an assumption of a power to weigh the evidence, a function reserved to the trier(s) of fact. Id. (quoting Firestone v. Crown Ctr. Redevelopment Corp. 693 S.W.2d 99, 110 (Mo. 1985)). 89. See id.; see also supra note 56 and accompanying text. 90. See Lebron, 930 N.E.2d at 928 (Karmeier, J., dissenting). 91. See id. (citing Estate of Sisk v. Manzanares, 270 F.Supp.2d 1265, (D. Kan. 2003)). 92. See id. (citing Johansen v. Combustion Eng g, Inc., 170 F.3d 1320, (11th Cir. 1999)). 93. See id. at ; see also Arbino v. Johnson & Johnson, 880 N.E.2d 420, 438 (Ohio 2007) (discussing that statutory limit on non-economic damages did not exceed the legislature s power or impermissibly intrude on judicial power to decide damages); accord
14 1164 RUTGERS LAW JOURNAL [Vol. 42:1151 A. Soundness V. ANALYSIS & IMPLICATIONS The justices writing for the majority in Lebron rejected all of the policy arguments articulated by the dissent including the notion that the damages caps were just one part of a response to the health care crisis, requiring all interested parties, including insurers, medical professionals and consumers to make sacrifices. 94 The majority also rejected the contention that the law was rationally related to serve a legitimate legislative interest, and despite the fact that in eight states where damages caps had been attacked and the laws upheld, the court stated that other state precedent would not be determinative in Illinois. 95 Citing President Barack Obama s reform efforts of the nation s health care system, the dissent wrote a vehement opinion citing numerous policy and procedural reasons why the caps should be upheld. 96 While the majority makes a sound and compelling argument for why the Illinois damages caps are unconstitutional from a separation of powers vantage point, 97 the dissent makes an equally compelling argument on why Garhart v. Columbia/Healthone, L.L.C., 95 P.3d 571, (Colo. 2004) ( [w]e join these states that have upheld damages caps as not infringing impermissibly on the judicial role in the separation of powers ); Rhyne v. K-Mart Corp., 594 S.E.2d 1, 7 8 (N.C. 2004) (statutory damages caps are a proper exercise of legislature s policymaking authority, and because they do not grant the legislature the authority to reduce excessive awards on a case-by-case basis, they are not a form of remittitur); Judd v. Drezga, 103 P.3d 135, 145 (Utah 2004) (upholding a statutory cap on non-economic damages against a separation of powers challenge on the grounds that it was permissible exercise of the legislature s power to declare what the law shall be, not an improper usurpation of the judiciary s function to decide controversial damages caps); Gourley v. Neb. Methodist Health Sys., Inc., 663 N.W.2d 43, 77 (Neb. 2003); Waste Disposal Ctr., Inc. v. Larson, 74 S.W.3d 578, 590 (Tex. Ct. App. 2002); Evans v. State, 56 P.3d 1046, 1055 (Alaska 2002); Zdrojewski v, Murphy, 657 N.W.2d 721, 739 (Mich. Ct. App. 2002); Verba v. Ghapery, 552 S.E.2d 406, 411 (W. Va. 2001); Kirkland v. Blaine Cnty. Med. Ctr., 4 P.3d 1115, 1122 (Idaho 2000); Guzman v. St. Francis Hosp., Inc., 623 N.W.2d 776 (Wis. Ct. App. 2001); Owens-Corning v. Walatka, 725 A.2d 579, (Md. Ct. Spec. App. 1999); Pulliam v. Coastal Emergency Serv. s of Richmond, Inc., 509 S.E.2d 307, 319 (Va. 1999). 94. See Goldhaber & Grcyz, supra note 14, at See Lebron, 930 N.E.2d at 914 (majority opinion) (stating that, [t]his court s jurisprudence of state constitutional law cannot be predicated on the actions of our sister states. ) (quoting People v. Caballes, 851 N.E.2d 26, 45 (Ill. 2006)). 96. See Goldhaber & Grycz, supra note 14, at The majority argued: [A] proper separation of powers analysis of section does not consider whether the Act balances the benefits and burdens of resolving the health care crisis
15 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1165 the legislature should be able to set these damage caps in the interest of Illinois public policy and why these caps do not infringe upon the judiciary s power of remittitur. 98 The ultimate question on whether the Illinois Supreme Court preserves the judiciary s traditional power to assess damages would be answered with a resounding yes in this context because by allowing a legislature to set a limitation on a litigant s damages, the legislature does indeed usurp a traditional power of the judiciary. However, is it appropriate to equate a damages cap with the doctrine of remittitur? The Illinois Supreme Court equates the damages cap with the concept of judicial remittitur because of the effect the legislation has on the court system and the court s vested interest and right in interpreting law and assessing litigant compensation. Though this opinion proves sound when examining the minutiae of which branch reigns supreme in the context of this specific inter-branch conflict, when placed alongside the context of both state and national health care reform issues, the decision s future soundness has yet to be determined. Some in the health care industry ultimately view Lebron as a major setback for health care reform in Illinois. 99 Though the effects of the majority s opinion will be determined in the future, many expect the ruling in Lebron to figure into the ongoing national debate over health care legislation and become a heated political campaign issue in upcoming elections. 100 or burdens a particular group. The intrusion on the judicial authority effectuated by section is no less simply because other provisions of the Act may impose burdens on the parties other than the plaintiffs. See Lebron, 930 N.E.2d at See id. at 928 (Karmeier, J., dissenting) (citing Johansen v. Combustion Eng g, Inc., 170 F.3d 1320, (11th Cir. 1999)) (discussing that reduction of an award to comply with legal limits does not involve a substitution of the court s judgment for that of the jury, but rather is a determination that a higher award is not permitted as a matter of law and is not a remittitur at all). 99. See Goldhaber & Grycz, supra note 14, at 21 (discussing that James Rohack, President of the American Medical Association, stated that the decision, threatens to undo all that Illinois patients and physicians have gained under the cap, including greater access to health care, lower medical liability rates and increased competition among medical liability insurers. According to ISMIE Mutual Insurance Company, Illinois s largest medical liability insurer, the number of claims against its covered Illinois physicians dropped considerably following the 2005 reform. Physician groups now expect claims, and insurer costs to again rise. ) See id.
16 1166 RUTGERS LAW JOURNAL [Vol. 42:1151 B. Analysis 1. Are Legislatively Imposed Remittiturs Unconstitutional? Ultimately, assessing damages in a tort suit is within the prerogative of the judicial branch of government, and the legislature cannot take away the court s jurisdiction for assessing damages in medical malpractice cases. The Illinois Supreme Court, in conducting a strict analysis of judicial remittitur in light of Illinois s separation of powers clause, 101 seems to have conducted a sound analysis of the constitutionality of the damage caps at issue. Though the effects may not remedy the health care crisis in Illinois from a policy perspective, from a strict constitutional separation of powers perspective, the Illinois Supreme Court got it right. A legislatively created remittitur infringes on an individual s right to a trial by jury and represents an improper legislative intrusion into the judicial branch. To ensure that common law and constitutional rights are not infringed by application of remittitur, courts generally follow four rules when applying remittitur: (1) remittitur must be exercised with restraint, (2) the verdict must be under the influence of passion or prejudice or the award must shock the judicial conscience, (3) the reduction in the award is only to the maximum amount that the jury could have reasonably found, and (4) the plaintiff must consent in lieu of a new trial. 102 In analyzing the court s reasoning for determining whether damages caps function as an unconstitutional legislative remittitur, the four requirements for remittitur are analyzed below. a. Restraint Requirement First, remittitur must be exercised with restraint. 103 Damages caps ultimately effectuate a legislative remittitur because they set a price on the 101. ILL. CONST. art. II, See Fink, supra note 56, at Id. This is the case particularly in personal injury cases. For example, a Michigan court was confronted with an appeal for remittitur in the case of a woman suffering permanent numbness after a dentist left part of a drill imbedded in her mouth and her jaw subsequently had to be removed. The plaintiff sought $110,000 in damages, the jury awarded $275,000. The court stated that [i]ndividual opinions may differ as to the correctness of awards.... [I]t has yet to be determined whether the judgment of a one-man jury is sounder than that of 12. As a result, the court concluded that the remittitur power must be exercised with restraint. The courts are even more reluctant to allow jury verdicts in personal injury cases to be disturbed. Id. at 244.
17 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1167 amount of compensation a litigant can receive for injuries, and the damages caps in the context of Lebron violate the restraint requirement. The damages caps at issue represent an approach to tort damages that is opposed to the purpose of the restraint requirement protecting the judgment of the jury from interference. 104 Instead, a legislative damages cap is an automatic substitution of the legislature s judgment for that of the jury s, which in essence proves to be unrestrained, since an amount is thereafter set for litigants. In Lebron it would seem that the legislature s damages caps automatically dictate what a litigant will get in compensatory damages. In Lebron, the court is not afforded the opportunity to assess damages and even comply with the restraint requirement if a legislatively imposed cap reigns supreme and automatically transfers its limitations to litigants. The legislative damages cap indeed effectuates a remittitur and violates the restraint requirement. 105 b. Passion or Prejudice Requirement The second requirement of remittitur is that it can only be applied when a jury s verdict appears to be under the influence of passion or prejudice, 106 or is so excessive as to shock the judicial conscience. 107 Courts ultimately differ on the approach to use when determining if this standard has been violated, but the inquiry always involves a fact-specific examination of the case record. 108 Legislatures are not in a position to make the type of fact specific judgments that are necessary to apply remittitur in accordance with the passion or prejudice requirement. 109 The legislature 104. Id. at Id See Ark. Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 75 (1889); see also Anderson v. Pittsburgh Coal Co., 122 N.W. 794, 799 (Minn. 1909) See Stevens v. Edward C. Levy Co., 135 N.W.2d 414, 417 (Mich. 1965); Truckee-Carson Irrigation Dist. v. Barber, 392 P.2d 46, 48 (Nev. 1964) See Fink, supra note 56, at 245. For example, in a 1965 medical malpractice case, the Michigan Supreme Court held that a damage award of $9,000 did not shock the conscience, nor was it the result of passion or prejudice. See Stevens v. Edward C. Levy Co., 135 N.W.2d 414, 416 (Mich. 1965). After reviewing the record, the court concluded that the amount awarded by the jury was within a reasonable range when considering the evidence on pain and suffering, the permanence of the injury, loss of wages, and medical expenses. See id Id. at 246.
18 1168 RUTGERS LAW JOURNAL [Vol. 42:1151 cannot determine if a jury has acted with passion or prejudice. 110 If even judges cannot reduce jury awards without a finding of specific facts indicating passion or prejudice, it is clear that a broad, legislative remittitur would violate the jury s right to determine facts. 111 In Lebron, the damages caps take power away from the judiciary and jury to assess damages. By the legislature ordaining the amount a litigant can recover in a medical malpractice action, it is impossible to determine whether a jury has acted with passion or prejudice since the legislature does not partake in the judicial process in any way. Thus, the damages caps at issue in Lebron violate the second requirement of remittitur. c. Limited Reduction Requirement The third requirement of remittitur limits how much a judge can remit. 112 In federal court, damages can only be reduced to the maximum amount a jury might have awarded, and only if the court can determine this amount with precision. 113 State courts have virtually identical requirements for determining the amount to be remitted. 114 A legislative remittitur is not consistent with the requirement of a fact-specific reduction in damages to the maximum amount that could be awarded. 115 A legislative damages cap arbitrarily lowers damages without any reference to the facts of a specific case. 116 The legislative damages caps at issue in Lebron do not look at the events that occurred or the injuries that happened, so these caps cannot fulfill the limited reduction requirement. Since these damages caps are pre-set and do 110. Id Id Id Id. Where the verdict is excessive, courts will act only to reduce the jury verdict to the maximum which the law will allow. See Schottka v. Am. Export Isbrandtsen Lines, Inc., 311 F.Supp. 77, 80 (S.D.N.Y. 1969). For example, the Fifth Circuit engaged in a detailed review of the record to determine the maximum amount of damages that a jury could award in a case involving a breach of contract. See Enterprise Refining Co. v. Sector Refining, Inc., 781 F.2d 1116, (5th Cir. 1986). On the basis of testimony and statements by lawyers, the court concluded that [i]t is readily apparent to this Court that the maximum that a jury could have awarded in this case is $422, See id. at See, e.g., Pullman Co. v. Walton, 239 S.W. 385, 386 (Ark. 1922); Tedford v. L.A. Elec. Co., 66 P. 76 (Cal. 1901); Great Atl. & Pac. Tea Co. v. Smith, 136 S.W.2d 759, 768 (Ky. 1939); Baston v. Thombs, 143 A. 63, 64 (Me. 1928); Morris v. St. Paul City Ry., 117 N.W. 500, (Minn. 1908); Olson v. Siordia, 130 N.W.2d 827, 832 (Wis. 1964) See Fink, supra note 56, at Id.
19 2011] MEDICAL MALPRACTICE DAMAGE CAPS 1169 not reference the facts of a specific case, there is no way to limit the amount of damages. Since judges are not permitted to even arbitrarily lower damages, it would seem that a legislative remittitur is an even more egregious infringement on the constitutional rights of litigants because it strips away their right to have their damages assessed by the judiciary. 117 d. Plaintiff Consent Requirement The last requirement is that the plaintiff must consent to a remittitur. 118 If the plaintiff does not consent, a new trial is granted, and this procedure ensures that the right to a trial by jury is preserved. 119 A legislative damages cap, on the other hand, ignores this requirement and imposes a remittitur without the consent of the plaintiff and in contravention of their right to a jury determination of damages. 120 The legislatively imposed damages caps at issue in Lebron violate the fourth requirement of remittitur since these caps provide no opportunity for a litigant to consent to a statutorily imposed limitation already in place. The plaintiffs in Lebron essentially had no choice in the amount they could recover for their injures and the facts of Lebron demonstrate that the damages caps violate the final requirement of remittitur. 2. Constitutionality of Damages Caps As the four requirements of remittitur indicate, the decision to employ remittitur is fact-specific. 121 When a legislature creates a universally applicable damages cap, it effectively overrules the jury in any given case without examining the facts of the case and unduly encroaches on the prerogative of the judiciary s power, in violation of the separation of powers philosophy. 122 This application of damages caps should be equated with that of an unconstitutional legislative remittitur because these caps effectuate the function traditionally afforded to the judiciary in assessing damages, and the Illinois Supreme Court recognized this infringement in Lebron Id Id Id. at Id. at Id Id See Lebron, 930 N.E.2d at 899.
20 1170 RUTGERS LAW JOURNAL [Vol. 42:1151 From another perspective, it has also been argued that damages caps do not constitute remittiturs and are a constitutional response to a larger public policy problem, rather than a separation of powers problem. 124 Most state courts have adopted this view and hold that damages caps are an extension of the legislature s right to modify or eliminate a common law cause of action. 125 However, though damages caps on their face are simply legislatively created statutes, the effects of damages caps ultimately do encroach upon the judiciary s prerogative in assessing damages. Though many states have held that damages caps are constitutional, the Illinois Supreme Court strictly scrutinizes the Illinois Constitution s separation of powers philosophy and soundly determines that the legislatively imposed damages caps strip power from the judiciary and rights from litigants. 126 Though on their face damages caps are simply laws, as applied, damages caps are infringements on the traditional functions afforded to the judiciary in assessing the propriety of damages. This function is one that must not be stripped away since this right serves both as a vested power for maintaining three independent branches of government, and as an essential recourse to litigants who need a tool to utilize in the event they feel the damages they have been afforded are inadequate. C. Recommendations and Implications As a result of the Lebron decision, many questions still linger concerning the fate of health care reform in Illinois and across the country. How do states go about lessening provider liability and retaining health care providers? Empirical evidence suggests that the answer to rising medical malpractice premiums will not simply be found by capping the size of jury 124. See Kelly & Mello, supra note 39, at Id. Despite the strong common law support for the Illinois Supreme Court s decision in Best, commentators have attacked the court s reasoning on the following two grounds: (1) that the court exceeded its authority in striking down the legislation, and (2) that the court drew an untenable distinction between compensatory, statutory, and punitive damages. Id. at 260. One commentator, Victor Schwartz, has argued that, as mandated by the reception statute, the General Assembly has played the pre-eminent role in developing Illinois common law because this is a task for the legislative branch, which has a comparative advantage over the courts in the development of public policy. Id See Lebron, 930 N.E.2d at 899.
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