Each Chicago medical malpractice attorney who has discussed the dangers of tort reform measures have likely explained that attacks on the system beyond damage caps. Not only are legislatures attempting to arbitrarily limit the amount of money that victims can receive-no matter how badly they are injures-but they are also working to interfere with the work of judges with regard to what evidence is or is not allowed in and how that evidence affects the overall disposition of a case.
For example, on this blog we have previously discussed various requirement regarding medical expert witnesses having the exact same background as defendant medical professionals. As we explained, while this requirement seems innocuous enough, in practice it often unfairly leads to meritorious claims being thrown out on technicalities. Of course, having these worthy cases dismissed for no good reason is exactly what those who push these efforts hope will happen. Spearheading these laws are big insurance companies and the medical lobby who have everything to gain and nothing to lose from taking away legal rights of victims of medical malpractice.
As the expert requirement situation indicates, it is almost always a bad idea for legislatures to begin meddling into individual aspects of the judicial process. These decisions are much better when left to those actually hearing the evidence and making rulings on a case-by-case basis. The justice system is very case-specific, depending on what exactly happened in each individual case. Therefore laws which set down arbitrary decisions with no information about those individual specifics are destined to be both overinclusive and underinclusive.
Another way in which some tort-reformers try to get legitimate cases thrown out of court are by passing so-called “detailed basis” statutes. These statues, like the expert doctor background requirement, are ways to make it more difficult for plaintiffs to prove that their injuries were caused by the misconduct of another-before they are even allowed to continue with the discovery part of the process. All Illinois medical malpractice lawyers (and attorneys throughout the country) are not fooled and know that a detailed basis requirement is simply another arrow in the quiver given to defense attorneys to take out a medical malpractice case before the jury is allowed to decide on the merit. These requirements are vague, but mandate that medical malpractice cases not advance if the medical expert who provides information about the misconduct in the very earliest stage of the case does not have a sufficient “detailed basis” for the opinion.
Fortunately, some state judges are not allowing the requirement to be used to halt good cases unfairly. For example, Legal News online reported this week on a decision by the Supreme Court of Connecticut which overruled a trial court that had thrown a case out because it did not meet this vague requirement. The court explained reasonably that these medical opinion reports are obtained very early on in the process, before much information has been collected by sides. The majority noted “the opinion necessarily is obtained prior to the commencement of the action, before the plaintiff will have had the opportunity to engage in pretrial discovery under the rules of practice governing such discovery.”
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