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Ensuring Access to Justice: Fighting "Tort Reform"

The right to trial by jury and the right of every person to receive full, fair and just compensation is constantly under attack. One of the greatest assaults to the rights of the injured to recover full and fair compensation in Illinois occurred in March of 1995, when the Illinois General Assembly adopted a legislative package, entitled the Civil Justice Reform Amendments, which was the most draconian anti-tort law ever passed.

The core provision imposed a $500,000 cap on non-economic damages in any strict liability or negligence case involving death, bodily injury, or physical damage to property. This limitation would affect only those individuals for whom a compensatory damage award in excess of the cap was necessary to provide full, fair and reasonable compensation. Clearly, the more severely a plaintiff was injured, the greater the disparity and distortion wrought by the cap.

The legislature abolished joint liability for any tortfeasor in all actions "brought on account of death, bodily injury to person, or physical damage to property in which recovery is predicated upon fault." A defendant would be held severally liable "only for that proportion of recoverable economic and non-economic damages, if any, that the amount of that defendant’s fault, if any, bears to the aggregate amount of fault of all other tortfeasors."

The General Assembly also attempted to circumvent the Illinois common law rule, which bars a defense attorney from engaging in ex parte discussions with plaintiff’s treating physicians. This tactic was condemned in recognition of a strong public policy interest in preserving the sanctity of the confidential and fiducial physician-patient relationship. Instead, the legislature mandated that every patient who filed a personal injury lawsuit must agree to unlimited disclosure of any medical information to any party who requested it. Corboy & Demetrio lawyers contributed heavily, not only financially, but as lobbyists, spokespersons, lecturers, editorialists and concerned citizens, to mount a constitutional challenge to this comprehensive legislation. Michael Demetrio, a member of the CBA Board of Managers, voted to assert a constitutional attack and was one of the authors of an Amicus brief filed by the CBA in the Illinois Supreme Court. These efforts, and those of the Illinois Trial Lawyers Association and consumer interest groups, were not in vain.

On December 18, 1997, the Illinois Supreme Court determined that the Reform Act failed judicial review, as it violated several provisions of the Illinois Constitution, including the special legislation clause, the separation of powers provision, and the protection affording the right to privacy. Philip H. Corboy and Susan J. Schwartz, along with fellow Loyola alumni and Chicago attorney Curt N. Rodin, co-authored a scholarly article, "Illinois Courts: Vital Developers of Tort Law as Constitutional Vanguards Statutory Interpreters, and Common Law Adjudicators," published in the Loyola University Chicago Law Journal in the winter of 1998. They spell out that the Supreme Court’s ruling was mandated by Illinois law, which has a strong history of holding invalid any statute which discriminates in an arbitrary manner between similarly situated individuals. They also commend our state common law courts for their role in the development of tort law, as constitutional vanguards, statutory interpreters, and common law adjudicators.

In 2005, however, the same interests that pushed the unconstitutional provisions in 1995 lobbied Illinois legislators and convinced them to set limits on pain-and-suffering damages in medical malpractice cases, claiming that rising malpractice insurance premiums from multi-million dollar jury verdicts were forcing doctors to leave Illinois - claims that were unfounded and unsubstantiated. That law, The Medical Malpractice Reform Act of 2005, was declared unconstitutional by Cook County Circuit Court Judge Diane Larsen. She ruled that the legislature can not limit pain and suffering to $500,000 for doctors and $1 million for hospitals. She held that it is the jury’s job to decide the appropriate compensation for a plaintiff’s injuries. The case was appealed to the Illinois Supreme Court. In February of 2010, the Court issued its ruling upholding the rights of Illinois citizens to recover fair and full compensation for their injuries. For the third time, the Illinois Supreme Court held that any cap or limit on a victim’s compensation is arbitrary and violates the Illinois Constitution. Justice has prevailed. The rights of every citizen have been upheld. And the rule of law is alive and well in Illinois.

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