Illinois’ two-year-old malpractice reform is unconstitutional because it limits the amount a plaintiff can collect, a state judge has ruled.


“A compensatory damage cap applicable in all cases violates the separation of powers” between the legislature and judiciary, writes Circuit Court Judge Diane Joan Larsen. Because the cap was mandatory, it also wrongly ignored the “specific circumstances” of individual cases.

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The cap limited only non-economic damages—such as for pain and suffering or punitive damages —to $500,000 for physicians and $1 million for hospitals. It did not affect compensation for medical costs or lost wages and future earning potential.


Bruce M. Kohen, president of the Illinois Trial Lawyers Association, call the decision “an important victory for the rule of law and constitutional government.” Spokesmen for the American Insurance Association (AIA) and the Illinois Hospital Association say they are “disappointed” and looking forward to an appeal.


“Throwing out the non-economic damage award cap will once again subject medical malpractice insurers to excessive verdicts and settlements,” warns Steve Schneider, AIA vice president, Midwest Region. He noted that in the year before the law went into effect, about 45 malpractice cases had damages of at least $5 million in the Chicago area alone.


The cap was the centerpiece of a comprehensive reform package enacted in 2005. Attorneys for a severely brain-injured baby girl challenged it on several other grounds as well including:

  • Restrictions on expert testimony;
  • Requirements for a certificate of merit to initiate suit; and
  • Regulations on physician apologies as admissions
  • of guilt.

Larsen did not address any of those issues, noting that declaring any part of a law unconstitutional invalidates the entire statute. The state Supreme Court is expected to hear an appeal next summer.