Illinois Civil Justice League: May 2005

May 23, 2005

Visible Evidence - Invisible Proof

In Illinois, trial lawyers look at clear evidence of the impact of lawsuit abuse against Illinois doctors and tell legislators they see nothing wrong with the legal system. What's visible evidence to everyone else must be invisible to the trial lawyers?

While trial lawyers seem to be great at making clear evidence invisible, they're now getting help at making invisible evidence visible! In the new June issue of the ATLA Trial magazine, trial lawyers will get instruction on "Proving Invisible Injuries":

It's said that seeing is believing, so what do you do when the jury can't see your client's injuries? The June issue of TRIAL tells you how to make invisible injuries visible.

It's this type of logic that explains why Illinois is heading into another "final week" of a legislative session for a third year in a row without having passed meaningful medical liability reform. If "seeing is believing" for trial lawyers, perhaps they should view Glenn McCoy's recent political cartoon for starters.

While trial lawyers learn more in June on how to better express to juries how to "prove" the need for an increase in non-economic damage awards, will there be many doctors left in Illinois for them to practice their newly-learned skills?

We should know in the next week...

May 10, 2005

It Must Be Bad Lawyers...

To update our post from yesterday... it must be bad lawyers contributing to the medical malpractice crisis.

Case in point: The Illinois State Bar Association released a study they commissioned on the subject of medical malpractice that reports on the jury verdicts for cases in Cook, DuPage, Madison and St. Clair counties from the early-90s to 2004. The study mentions the worn-out argument that there have only been four verdicts against doctors in the past eight years in Madison County (see the post below for more on this stat), and utilizies the same methodology for extinguishing the "crisis" in Cook, DuPage and St. Clair counties.

As Oly Bly Pace III writes:

The resulting study, titled “Medical Malpractice and the Tort System in Illinois,” set out to provide factual answers to several critical questions facing the General Assembly as it decides what, if any, changes to make in the laws governing medical malpractice.

It's the Settlements, Stupid!

For the largest statewide association of lawyers (30,000 members strong) to assert that there is no link between medical malpractice litigation and the rise in liability rates, without studying the settlement history in cases brought before the court, brings into question the integrity of ISBA's motives in helping to resolve the issue before the state legislature.

Is the ISBA unaware that much litigation in Illinois is resolved through settlements? Or is Duke Professor (Dr.) Neil Vidmar unaware of the concept of settlements in litigation?

It's the equivalent of saying that there is no real action in the asbestos litigation industry in Madison County. The St. Louis Post-Dispatch estimates that trial lawyers reap nearly $1 billion a year in asbestos winnings from Madison County, but the first case to go to trial in two years just started yesterday morning. I don't think there has been a verdict in a case since Randy Bono's $250 million verdict in 2003. Is it any wonder why there hasn't been a case come to trial since?

Is it any surprise that Professor Vidmar failed to draw the proper methodology for the study? As Ted Frank points out in his comments posted to a recent Evan Schaefer blog article:

Vidmar's been writing about this subject for years, most notoriously as a paid expert challenging the constitutionality of Indiana's caps. If he makes the same errors in the Illinois paper that he made in his Indiana paper [...] the lawyers will be happy with his results, which is why they're confident in hiring him. Vidmar may or may not be biased [...] but the selection of Vidmar to do the study was certainly a biased one.

So, the implication is this guy isn't quite as biased as Jay Angoff, but...

Therefore, to state - as their study's title does - that their report offers facts relating to medical malpractice and the TORT SYSTEM, without considering settlements, renders their study and data useless.

Which is a shame, because it's nice to see the state bar association finally get interested in how their membership is affecting other professions in Illinois.

Ted Frank ( and Evan Schaefer (Notes from the Legal Underground) had a memorable exchange about settlements in this May 2004 post, in which Evan argued that med mal wasn't just a Madison County problem and Ted argued that settlements were being ignored in the trial lawyer statistics.

Ted: "Evan, you and I both know that the bulk of medical malpractice claims get resolved in settlements based on both attorneys' perceptions of what a judge will permit a jury will deliver. So why do you persist in this transparently bogus use of a "verdict" statistic..."

Evan: "I also said there is inadequate information about the cases filed in Madison County. Your numbers don't help. We can speculate on sound footing that some of the cases filed against doctors in Madison County were settled, but the vast majority were undoubtedly dismissed without the doctors' paying anything, since that is the nature of medical malpractice lawsuits..."

However a month later, the ICJL answered Ted and Evan's speculation about Madison County suits with a ground-breaking study of medical malpractice litigation, titled "The Dirty Little Secret: Medical Malpractice Lawsuits Against Metro-East Doctors". The results were staggering and left ICJL asking...

What about the High Volume of Litigation?

For those with short memories, the ICJL study found that nearly one-third of all doctors in the metro-east had been personally named in a lawsuit between 2000-2003. ICJL data estimated that half of the Metro-East doctors were affected, either by being named personally or having one of the partners or their practice named in a lawsuit.

The ICJL study looked at 422 lawsuits filed in Madison and St. Clair counties in four years, naming 1,082 total defendants. The metro-east had approximately 950 registered physicians at that time.

And, the study showed that the crisis had nothing to do with repeat offenders. 242 physicians or roughly one-fourth of all Metro-East physicians were named only once over the four-year period.

Nearly one year later, the most interesting conclusion is the rate of failure by Metro-East trial lawyers. After harassing physicians with 422 lawsuits, only five of them went to trial with a verdict in favor of the plaintiff. That's a success rate of just over 1%.

So, to respond to Evan's recent medical malpractice question, I'd like to know: "When medical malpractice cases get dismissed, where do they go?"

The answer is more complicated than the ISBA and Professor Vidmar wish to examine in their study. Some cases get dismissed (and the doctors and their insurance companies get left with the bill). Some cases get settled (and the doctors and their insurance companies get left with the bill). That "bill" could be as little as $25,000 (I think the latest average defense cost per doctor, regardless of the outcome) or perhaps into the millions (in the case of settlements).

If ISMIE statistics show that 85 percent of St. Clair County cases and 72 percent of Madison County cases get thrown out without a payment to the plaintiff, then the ISBA study is neglecting (the most costly) 14 percent of cases in St. Clair County and 27 percent of cases in Madison County.

You can believe there's not a problem with medical malpractice litigation in the Metro-East, if you want to. 422 cases filed and only 5 "wins" for the trial lawyers in court.

You can choose to ignore the outcomes of the other 417 cases. You know, the endless depositions that take doctors away from their patients, the escalating costs of defense lawyers to get non-meritorious suits thrown out, the heartache and headaches for doctors who apparently "win" their cases 99 percent of the time.

Would you have a problem going to a doctor that was unsuccessful 99 percent of the time? Even after 422 tries? So, how can you say that we don't have a problem with medical malpractice litigation in the Metro-East?

May 08, 2005

Bad Doctors OR Bad Lawyers?

I was inspired by T. Evan Schaefer's recent post, "When Doctors Leave Town, Where Do They Go?" In his post, Evan recounts a statistic spun by the Madison County trial lawyers that only 11 lawsuits have gone to a jury since 1996, and only four of those were found for the plaintiff.

According to the Edwardsville Intelligencer article within which this statistic was reported, the four lawsuits resulted in verdicts of $25,000, $75,000, $450,000, and $1.7 million, meaning combined damages (economic and non-economic) were below the recent Shadid-standard for caps in three of four cases.

Apparently this is a meaningful statistic in the medical liability reform debate. (Note my sarcasm).

It seems to be forwarded again and again by trial lawyers in this area. They say insurance companies must charge the doctors too much, especially if Madison County juries have awared less than $2.5 million in the past eight years. If only the issue was that easy to explain.

Just for fun, let's put the statistic in real context within the debate. FACT: There have only been four winning plaintiffs in Madison County in eight years. ICJL did a study looking at the number of medical defendants in Madison County from 2000-2003, so let's assume that ALL four of the winning plaintiffs were successful in that time period (trying to be fair to the trial lawyers with my assumptions).

So, out of 181 medical malpractice suits filed in Madison County from 2000-2003, the plaintiff and his/her trial lawyer(s) were successful - at most - 2.2 percent of the time. Which, by the standards put forth by the trial lawyers, 97.8 percent of the medical malpractice cases filed in Madison County result in no verdict for the plaintiff, meaning the trial lawyer lost the case.

Conclusion: Trial lawyers fail in 97.8 percent of the claims they file against doctors in Madison County. Doesn't sound like we have very good legal skill here in this county...? And, the trial lawyers say they already turn down 90 percent of the potential cases they could take, because of lack of merit...?

If the doctors failed 97.8 percent of the time for their patients, then we really would have a problem with our healthcare. But unfortunately, it's lawyers missing with so many cases.

In the process, more than 460 defendants were named in the 181 lawsuits. No wonder so many doctors are rallying to change the way medical liability is assessed in Illinois. Needless defense costs were paid, needless time away from patients was spent, needless anxiety over meritlous claims was expended, needless headaches and heartaches for families (on both sides) was extolled. Meanwhile, the adequate resources collected from doctors to compensate victims when negligence actually occurred was wasted defending against claims headed for dismissal.

It's starting to sound like there's been a lot of pain and suffering extracted against our doctors, considering the high rate of failure by plaintiffs lawyers in medical malpractice cases in Madison County. Perhaps someone should call a lawyer.

May 05, 2005

Lawsuits & Bikes Don't Mix

Isn't it interesting how issues in Springfield tend to get more complicated whenever the trial lawyer lobby gets involved?

Illinois bikers got to see the above theory in action this week as House Bill 2390 (aka "The Bike Bill") got shot down by the Senate Local Government Committee. In essence, the bill just grants bicyclists the equal opportunity to use our roadways. However, thanks to the mingling of lawyers, bikers will have to detour into the more complicated world that doctors and small businesses now occupy in Illinois.

Shaking your head in confusion at this point? You might be if you're not currently a litigation target in Illinois, but let me explain the concept further so everyone can understand what's at stake for you, the taxpayer.

In September 1993, a case involving a bike injury in Wayne Township was brought before a judge in DuPage County.

According to the Supreme Court Boub v. Township of Wayne description:

After the dismissal of the plaintiff's initial and amended complaints, the plaintiff eventually filed a third amended complaint, which superseded a pending second amended complaint. According to the allegations in the plaintiff's third amended complaint, Boub was riding his bicycle on the morning of September 8, 1992, on St. Charles Road in Wayne Township, DuPage County. The accident occurred as Boub was traveling across a one-lane bridge. The surface of the bridge consisted of wood planking; some time before the accident, asphalt patching between the planks had been removed as part of a bridge renovation project, in preparation for the installation of a different bridge deck. According to the pleadings, the plaintiff was thrown from the bicycle when his front tire became stuck between two of the planks on the bridge.

The resulting court case, as noted above, went all the way to the Supreme Court and was decided by a very close 4-3 vote. The potential liabilities were discussed by Justice Ben Miller in the decision.

Indeed, the potential implications of such a shift in policy are substantial and far-reaching, and we do not believe that the legislature intended to impose liability in these circumstances. Simply put, many road conditions that do not pose hazards to vehicles may represent special dangers to bicycles, and imposition of liability in this case would, we believe, open the door to liability for a broad range of pavement conditions, such as potholes, speed bumps, expansion joints, sewer grates, and rocks and gravel, to name but a few. By the same token, we believe that imposition of municipal liability in the circumstances shown here is more appropriate for the legislature to initiate, if it is to be done at all. In this regard, it is appropriate to consider the potentially enormous costs both of imposing liability for road defects that might injure bicycle riders and of upgrading road conditions to meet the special requirements of bicyclists.

Without putting too many words in the mouth of the court, what the majority was saying is that there is a need to consider the cost to municipalities - meaning THE TAXPAYERS - when connecting liability to these types of accidents.

The court went further, in fact, to clarify what they thought the "rights" of bicyclists were on open roadways:

In sum, there are no affirmative manifestations here that Wayne Township intended-rather than simply permitted-bicyclists to use the road and bridge where the accident occurred. We have no quarrel with the proposition that bicycle riders are permitted users of the road and bridge involved in this case; we do not believe, however, that they must also be considered intended users of those facilities, within the scope of section 3-102(a) of the Tort Immunity Act. There is no question of fact on this record, and summary judgment was appropriately entered in favor of the defendants.

Three justices felt very differently in the case, with Justice Heiple penning:

The majority's conclusion that bicyclists are not intended users of roads defies common sense, contravenes statutory authority, and frustrates public policy.


Besides depriving injured bicyclists of just compensation for their injuries, the principal effect of the majority decision will be to discourage municipalities from taking any measures to make roads safer and more hospitable for bicyclists. Because the majority precludes liability whenever the municipality in question does not intend for bicyclists to use its roads, a loss-averse municipality, in order to minimize its exposure to liability, might remove from its roads any evidence that bicyclists are intended users, such as bike lanes or special signs. Bicyclists would then be in even more jeopardy than that occasioned by today's decision. Given the majority's ruling, the only safe bicycle in Illinois is a stationary exercise bike located in one's home or at the gym.

This court decision was entered into the record five years later in 1998. Now, let's fast forward to 2005...

Biker groups in Illinois are now lobbying to help reverse some of the damage they feel they incurred in the Boub decision. Justice Heiple was right in his assessment of the negative implications of the ruling. According to the most vocal biking group, League of Illinois Bicyclists, many government entitities have backed off some initiatives to improve biking trails and designations. (sorry, I can't refuse a small chuckle over the name) - the website of the League of Illinois Bicyclists - even reports that Illinois is now one of the worst states in the country for biking.

However, this story from their website is more telling:

Our goal is not to impose the extra costs of new maintenance standards, road requirements, or special liability protection. We simply want to return to where we were before 1998 (and where other states are): no more than the existing level of protection given to other road users - and the elimination of the liability disincentive that dissuades safety-conscious towns. This is not new and uncharted territory. History in pre-Boub Illinois and in other states has shown the liability exposure to be negligible.

The amended language is the product of very active negotiations between bicycle organizations, local government groups, and the Illinois Trial Lawyers Association. It is our closest compromise language to date. All parties have given something up to get here. No one is entirely happy with the result but all parties seem willing to move a little to finally resolve this issue. We believe the removal of the disincentive to bikeway designation is achieved within a reasonable local government burden for cyclist's safety.

Doesn't this sound a little like the plight of our doctors here in Illinois, before litigation ruined the practice of medicine in this state. Replace the bikers with doctors and replace the local municipalities with insurance companies, and - essentially - you have a parallel argument. Except, in this case, there are no "evil insurance companies" for the trial lawyers to demonize because the money for biking accidents is targeted in your pocketbook - the municipal taxpayer.

In fact, the groups fighting to defeat HB 2390 are being led by the Illinois Municipal League, and others are acknowledged on the IML website:

The League would like to thank the City of Chicago, Will County Governmental League, South Suburban Mayors and Managers, West Central Municipal Conference, Metro Counties of Illinois and the Township Officials of Illinois for their hard work in opposition. A special thanks also goes out to the numerous local officials throughout the state who contacted their legislators and urged them to oppose the bill.

And shouldn't our elected officials being doing all they can to prevent local taxpayers from having to foot the bill for potential lawsuits? Not according to the Rockford Register-Star, whose editors are blasting the seven Senators who voted against the bill as thinking "bicyclists are second-class citizen." The Register-Star thinks the bill's demise is a poor start for the month of May, which is National Bike Month.

The seven senators who opposed the bill must be oblivious to the thousands of people who use bicycles for transportation. Many do it as a lifestyle choice. They like the exercise, the gas savings and the hassle-free parking.

Here's a suggestion for all lawmakers who opposed this bill. Get off your bloated behinds and ride your bikes to work. Bike to Work Week is May 16-20. May 20 is Bike to Work Day. Maybe after you see how dangerous it can be to ride streets that are not marked for bicycles, you'll understand the importance of the legislation you just killed.

Alas, the editors at the Rockford Register-Star must be oblivious to the thousands of trial lawyers in America looking to target municipalities (aka the taxpayers) for their next lawsuits. To parallel further the editors' arguments, perhaps they should see how dangerous it can be for the taxpayer to navigate through the court system when a municipality gets dragged into a case. Perhaps their reporters should get off their behinds and look at the Winnebago docket and see where lawsuit abuse is affecting the local taxpayer in Rockford? Even though there are no warning signs posted for city administrators, they know the potential liabilities and have to weigh them against the postive uses for residents - even bicyclists.

Isn't that what we - as taxpayers - hire them to do?

Unfortunately, the fear of litigation is forcing changes in our state's biking opportunities. However, it was the plaintiff that pushed the case to the Supreme Court in 1998 that forced a change in the law that created the "disincentive" for bicyclists. Most municipalities probably never considered the potential liability until lawyers tinkered with Supreme Court on the case.

Once again, a group loses out because the trial lawyers won't give up a potential cash cow in order for Illinoisans to more freely exercise (no pun intended) their rights to bike. For those keeping track, if you're a patient AND a biker in Illinois, you're now losing 2-0.

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