The rights of medical malpractice victims are under assault on an essentially non-stop basis. Over the past few decades different states (and the federal government) have considered, and sometimes passed, legislation which seeks to do three things:
1. Make it tougher for victims to file a lawsuit against those who caused their injury
2. Make it harder for those victims to win those suits after they’ve been filed
3. Make it impossible for victims to receive the damage award that a jury deems reasonable even after winning the case.
Ask any Chicago medical malpractice lawyer and they will confirm that misconceptions about the legal system allow those who stand much to gain from tort “reform” (i.e. insurance companies and certain big interests) to use the skewed public opinion to advanced dangerous legislation. The misinformation machines which pump out false data about these lawsuits is difficult to stop, because it is backed by deep-pocketed interests who will stop at nothing to improving their bottom line. However, at the end of the day those of us opposing tort reform efforts know that our arguments are stronger. Tort reform laws help only a small sliver of society while hurting the vast majority of us. At the end of the day there are two battles to fight to limit the advance of those pushing these efforts:
1. Defeat the legislation before it passes
2. Explain to the court how the legislation violates fundamental constitutional principles.
Our Chicago medical malpractice attorneys are active on both fronts, as we urge the defeat of legislation which takes away rights of Illinois medical malpractice victims and support legal arguments which point out the unconstitutionality of most of these laws. Fortunately, a few years ago our Illinois Supreme Court validly recognized that a law in our state which capped damages unconstitutionally infringed on the separation of powers doctrine in our constitution. Certain decisions must be left up to the judicial branch of government and legislatures are not allowed to mettle with it without changing the constitution.
This week the Arkansas Supreme Court made similar arguments while striking down a law in its state which limited the kinds of medical experts which could testify in certain medical malpractice cases. According to the Baxter Bulletin, the state’s high court found that the requirement that expert testimony has to come from “medical care providers of the same specialty as the defendant” violated the separation of powers doctrine. Last week we discussed this particularly damage requirement in another state. On its face, of course, the measure sounds reasonable. The problem is that instead of being used reasonably, the requirement in practice was nothing more than a way for meritorious claims to be thrown out of court on a technicality. Some courts required that specialty of the expert be identical to that of the defendant doctor. In some cases, meeting that requirement was virtually impossible, essentially immunizing those doctors from accountability.
Fortunately, with rulings like this, the court rightly notes that decisions about what evidence is or is not allowed at trial is within the purview of the judiciary alone, not the legislature. There is a reason that there are split branches of government-each maintains its own sphere of power. When one branch tries to take away the power of another, it cannot stand.
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