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“Judicial Hellholes:” Medical

Malpractice Claims, Verdicts

and the “Doctor Exodus” in Illinois1 2

Neil Vidmar, Ph.D., Russell M. Robinson II, Professor of Law,

Kara MacKillop, J.D., MA.

I.ILLINOIS AS A REPORTED “JUDICIAL HELLHOLE” FOR

C.Federal Cases in the Southern District of Illinois..1319

A.Case Filings in Cook and DuPage Counties:

B.Trials, Plaintiff Win Rates and Mean Awards:

C.Jury Awards and Ultimate Payments in

D.Selected Defense Verdicts Involving

V.TESTING THE DOCTOR EXODUS CLAIM AGAINST

1.This Article is based upon a longer report, NEIL VIDMAR, MEDICAL MALPRACTICE AND

THE TORT SYSTEM IN ILLINOIS: A REPORT TO THE ILLINOIS STATE BAR ASSOCIATION (2005), available at http://eprints.law.duke.edu/archive/00001125/01/Medical_Malpractice_and_the_ Tort_System_in_Illinois.pdf. However, additional analyses and data have been added to this Article. These changes do not substantially alter the conclusions reached in the ISBA report. The authors are indebted to James Covington of the Illinois State Bar Association, Judy Nelson and Matt Melucci of the Madison County Circuit Clerk’s Office, John Kirkton of the Cook County Jury Verdict Reporter, and Dr. Paul Lee of Duke Medical School.

2. The opinions and conclusions in this Article and the report are solely those of the authors and do not necessarily reflect the opinions of Duke University or Duke Law School.

1309

A.Illinois Physicians: 1994-2003 ...............................1336

B.Patient Care Physicians: Madison and

St. Clair Counties 1993-2003 .................................1338

I. ILLINOIS AS A REPORTED “JUDICIAL HELLHOLE” FOR PHYSICIANS

Beginning about the year 2000, physicians around the nation experienced an explosive jump in their professional medical liability insurance premiums.3 The state of Illinois has been identified as one of the “crisis” states by the American Medical Association (“AMA”) insofar as cost and availability of liability insurance is concerned.4 Madison and St. Clair counties, just across the Mississippi River from St. Louis, have garnered particular attention, acquiring the label “judicial hellhole” for medical malpractice claims.5 The notoriety is so great that President Bush visited Madison County in January 2005 as part of his campaign for a nationwide $250,000 cap on pain and suffering for medical malpractice jury verdicts.6 The claims are not limited to these two counties, however. In the greater Chicago area, in particular Cook and DuPage counties, similar claims have been made about

3. See Peter Akmajian, A Fair and Balanced Look at Tort Reform, FOR THE DEF., Nov. 2004, at 33 (noting that medical liability insurance is increasingly expensive); Michelle M. Mello et al., The New Medical Malpractice Crisis, 348 N. ENGL. J. MED. 2281, 2281–82 (2003) (identifying 18 states where insurance premiums have “increased dramatically for physicians in high-risk specialties”); David M. Studdert et al., Medical Malpractice, 350 N. ENGL. J. MED. 283, 283–84 (2004) (describing the “malpractice crisis” that has led to spiked premiums).

4. See Am. Med. Ass’n, America’s Medical Liability Crisis Backgrounder: Illinois, Mar. 4, 2004, available at http://www.ama-assn.org/ama1/pub/upload/mm/450/illinois04.pdf (noting that medical liability insurance premiums in Illinois have increased dramatically due to the frequency of lawsuits).

5. See Editorial, Buying Justice, ST. LOUIS POST-DISPATCH, Nov. 5, 2004, at B6 (discussing why certain Illinois counties are lawsuit magnets); Georgina Gustin & Philip Dine, Insurance Regulations Bear Blame, Critics Say, ST. LOUIS POST-DISPATCH, Jan. 2, 2005, at A1 (describing Madison and St. Clair counties as “judicial hellholes”); Sherman Joyce, Judicial Hellholes, WALL ST. J., Dec. 15, 2004, at A20 (explaining that the Illinois legal system is deteriorating); Patrick J. Powers, Doctors Flee Area Hospitals, BELLEVILLE NEWS-DEMOCRAT, Mar. 23, 2005 (explaining that fifteen percent of the practicing physicians in the Metro-East area have left in recent years); AM. TORT REFORM ASS’N, JUDICIAL HELLHOLES 2005 20–28 (2005), available at http://www.atra.org/reports/hellholes/report.pdf (listing Madison and St. Clair counties as two of the nation’s top six “judicial hellholes”).

6. See Gustin & Dine, supra note 5, at A1 (“Bush uses the “judicial hellholes” of Madison and St. Clair counties as backdrops to advance his tort reform agenda . . . .”); William Lamb, County’s Reputation Draws Bush, ST. LOUIS POST-DISPATCH, Jan. 3, 2005, at A1 (describing Bush’s visit to the county as part of his re-election campaign in support of medical malpractice caps); Bush Pushes Anew for Lawsuit Limits, HELENA INDEP. REC., Jan. 6, 2005, available at http://www.helenair.com/articles/2005/01/06/national/a02010605_03.txt (discussing Bush’s trip to Madison County and his campaign for a $250,000 cap).

excessive jury verdicts and their effect on professional liability insurance.7

Accompanying the claims of runaway juries are reports of an exodus of doctors from Illinois to escape the “abusive litigation climate.”8 While these reports have been applied to Illinois as a whole without specific statistics about the size or nature of the exodus, various numbers have been obtained from Madison and St. Clair counties. In November 2003, an article in the Belleville News Democrat reported that fifty-nine doctors had left one hospital.9 In April 2004, another article stated that “[a]t least 60 doctors in the past two years have left or announced plans to leave Madison and St. Clair counties.”10 In 2004, the Springfield Journal-Register, the St. Louis Post-Dispatch, and the Wall Street Journal variously reported that the two counties had lost a total of 160 or 161 doctors.11 In March 2005, the News Democrat upped its earlier figure to 136,12 based upon a study by two business professors from Southern Illinois University, Edwardsville, who estimated their figures from surveys of area

7. See Jeff Ignatius, Doctor Dash: Lawyers and Physicians Spar over Medical-Malpractice Reform, but Causes and Solutions Aren’t Clear, RIVER CITIES’ READER, May 19, 2005, available at http://www.rcreader.com/display_article.php3?index=1&artid=2314 (noting that “average jury awards for malpractice in Cook County . . . [increased] 314 percent in five years” and acknowledging both claims that these awards caused increases in insurance premiums and claims by the Illinois State Bar Association that “the Illinois tort system does not appear to be the cause of the increase in doctors’ liability insurance premiums”).

8. See William Lamb, Doctors May See Premiums Lowered, ST. LOUIS POST-DISPATCH, Mar. 15, 2006, at A1 (stating that the insurance arm of the Illinois State Medical Society, along with many doctors and Republicans, argued that generous jury awards were to blame for the high cost of health insurance, forcing many doctors to leave the state); Illinois Chamber of Commerce, Our Illinois Courts are In Crisis . . . It’s Time For A Change, http://www.ilchamber.org/legalreform/ (last visited May 31, 2006) (“Illinois is earning an antibusiness reputation that is scaring off doctors”); HARRIS INTERACTIVE, INC., 2005 STATE

INTERACTIVE SYSTEMS RANKING STUDY, FACT SHEET: “ILLINOIS’ ABUSIVE LEGAL CLIMATE IS

FORCING DOCTORS TO LEAVE THE STATE” (Mar. 8, 2005) (on file with author).

9.Patrick Powers, Doctor Exodus Continues, BELLEVILLE NEWS DEMOCRAT, Nov. 9, 2003,

at A1.

10.Steve Stanek, Doctors Flee Illinois, HEALTH CARE NEWS, Apr. 1, 2004, available at http://www.heartland.org/Article.cfm?artId=14633.

11. See Sherman Joyce, Judicial Hellholes, WALL ST. J., Dec. 15, 2004, at A20 (stating that Madison and St. Clair counties together lost 161 doctors); William Lamb, Illinois Trauma Cases Surge at SLU, ST. LOUIS POST-DISPATCH, Jan. 11, 2005, at A1 (“Steep increases in malpractice insurance premiums—particularly for doctors in high-risk specialties such as neurosurgery and obstetrics—have forced at least 160 doctors in Madison and St. Clair counties to retire or leave the area, according to many doctors and politicians.”); Dean Olson, Shimkus: Chance for Malpractice Caps Getting Better, STATE J.-REG., Feb. 24, 2005, at 20 (citing “an August report by hospitals in Madison and St. Clair counties that said 161 doctors had left those counties or retired early the previous two years because of a malpractice insurance crisis”).

12.Powers, supra note 5.

hospitals and counts of doctors’ offices in the area.13 As late as June 9, 2005, the figure had grown to 180 physicians leaving Madison and St. Clair counties.14

The controversy in Illinois is part of a contentious nationwide debate about the causes and consequences of the undisputed problems regarding availability and cost of malpractice insurance. While consumer groups and trial lawyers insist that the cause of the premium jumps lies with the business cycle in the insurance industry, physician groups, hospitals, liability insurers, and business organizations blame the tort system.15 In Illinois, as in other states, these latter groups argue that increasingly frequent claims and increasingly large jury verdicts, particularly the “pain and suffering” component of awards, have resulted in excessive payouts. Industry groups argue that such payouts result not only from jury verdicts directly but also from the “shadow effect” of large verdicts arising when health care providers settle malpractice claims for higher amounts than are warranted, if warranted at all, out of fear of exposure to even larger jury awards.16

This Article examines the claims about jury verdicts and the medical malpractice climate in Illinois. We first examine claims and jury verdicts in the especially notorious region – the “judicial hellhole” –comprised of Madison and St. Clair counties. Our data are derived from the Southwestern Illinois Jury Verdict Reporter, reported in both

Westlaw and Lexis, which covers these two counties. The data for Madison County were checked by a direct examination of the files in the Madison County Courthouse. We then present a similar analysis of the greater Chicago area involving Cook and DuPage counties. Our data for this research are derived from the Cook County Verdict Reporter, supplemented by additional sources in Westlaw and Lexis databases and brief telephone interviews with lawyers to confirm

13.JOHN NAVIN & TIMOTHY SULLIVAN, RECOMMENDED FOR A HEALTHY ECONOMY: THE IMPORTANCE OF THE HEALTH CARE SECTOR IN MADISON AND ST. CLAIR COUNTIES 2 (2005), available at http://www.senategop.state.il.us/index.php?option=com_ docman&task=cat_view&gid =117&Itemid=121.

14.Ann Knef, Memorial Hospital Head Harry Maier Discusses Med Mal Reform, THE

MADISON - ST. CLAIR RECORD, June 9, 2005, available at http://www.madisonrecord.com /news/newsview.asp?c=161029.

15. See Peter Budeti, Tort Reform and the Patient Safety Movement, 293 J. AM. MED. ASS’N

2660, 2661 (2005) (noting that physicians associate malpractice suits with increased premiums); John Gibeaut, The Med-Mal Divide, 91 A.B.A. J. 38, 40 (2005) (describing the “cycle of blame” that exists among physicians and lawyers); Joseph Treaster & Joel Brinkley, Behind those Medical Malpractice Rates, N.Y. TIMES, Feb. 22, 2005 (explaining that even though those in the insurance industry acknowledge that other “industry forces and practices” impact insurance prices, many “in the insurance industry still regard lawsuits as their biggest problem”).

16. See Thomas Koenig, Measuring the Shadow Effect of Punitive Damages, 1998 WIS. L. REV. 169, 169–209 (discussing the “shadow effect” theory and evidence of its existence).

missing information about settlements. A separate section uses the Cook and DuPage data to consider the potential effect of caps on damage awards for pain and suffering. In another section of the Article, we investigate the claims about the doctor exodus by examining official statistics of the AMA on the distribution of doctors for the Madison-St. Clair and Cook-DuPage regions, and also for the whole state of Illinois.

II. JURY VERDICTS IN MADISON AND ST.CLAIR COUNTIES

A. Madison County

Madison County, whose largest city is Edwardsville, and St. Clair County, whose largest city is Belleville, have a combined population of roughly 520,000.17 AMA data indicate that in the year 2003 there were slightly over 700 physicians in the two counties who classified themselves as non-federal physicians engaged in patient care.18

Table 1 reports the total number of jury trials in Madison County in the 13.5 years from 1992 through the first six months of 2005. These data were reported by the Southwestern Illinois Verdict Reporter and checked by the senior author against the original files in the Madison County Circuit Court.

17.U.S. Census Bureau, State and County Quick Facts, St. Clair County, IL (2004), http://quickfacts.census.gov/qfd/states/17/17163.html (last visited May 31, 2006) (listing St. Clair County’s population as 259,132); U.S. Census Bureau, State and County Quick Facts, Madison County, IL (2004), http://quickfacts.census.gov/qfd/states/17/17119.html (last visited May 31, 2006) (listing Madison County’s population as 264,350).

18.AM. MED. ASS’N, PHYSICIAN CHARACTERISTICS AND DISTRIBUTION IN THE U.S. 223 (2005) [hereinafter AM. MED. ASS’N, PHYSICIAN CHARACTERISTICS). Federal physicians are those employed or supported by the U.S. Government, which is self-insured for the liability of its physicians. Some federal physicians are patient-treating physicians such as those associated with military bases, Veterans Administration hospitals and the Public Health Service. Lawsuits against federal physicians fall under the Federal Tort Claims Act, which requires trials to be conducted by judges acting without a jury. Consequently, malpractice lawsuits against federal physicians do not play a role in private liability insurance issues.

Table 1

Jury Verdicts in Medical Malpractice Cases:

Madison County Court, 1992-2005

* Settled for $174,000 following a verdict of $400,000

Table 1 indicates there were twenty-six reported jury trials involving medical malpractice in Madison County from 1992 through the first six months of 2005, an average of 1.7 trials per year. Nine of the twenty-six trials ended with an award for the plaintiff, a win rate of 35 percent. The average award in those plaintiff wins was $523,333. One award (Adams) was almost $1.8 million and another (Pruett) approached $1 million. It is useful to briefly examine the basic facts of the cases resulting in verdicts of $500,000 or more.

Garcia v. Tulyasthien involved a claim of negligent surgery and resulted in a verdict of $600,000 ($796,000 in 2005 dollars).19 The plaintiff, age thirty-three, had his leg fractured in a bar room brawl.20 He claimed that the surgeon negligently inserted a metal rod in his leg that was unnecessary for the tibia and fibula fractures to heal.21 The result was osteomyletitis, inflammation of the bone and marrow.22 His past medical costs were $2500 and his past wage loss was $15,000.23 The record provided no information about future economic losses.

Pruett v. Mucci involved permanent neurological damage to the brain and spinal cord of a child during her mother’s labor.24 The plaintiff’s guardian alleged failure to monitor during delivery and inappropriate use of forceps.25 The jury concluded that Dr. Mucci was an agent of the hospital. Before trial, the plaintiff demanded $750,000 to settle, but the defendant offered only $250,000. The jury verdict of $900,000 ($1,132,680 in 2005 dollars) involved the following breakdown: past and future medical expenses, $200,000; past and future disability, $250,000; past and future disfigurement, $250,000; past and future pain and suffering, $200,000.26 After the trial, the case settled for $875,000. Because the case involved a minor, the court record contains a formal settlement distribution approved by a judge. Of the total award, $500,000 was invested in an annuity to provide the plaintiff with a guaranteed annual income with graduated income amounts that would eventually provide $5,600 per month for life (expected total lifetime yield from the annuity would be more than $4 million) over the plaintiff’s lifetime. From the balance of $375,000, a lien (unspecified, but likely from Medicaid or a private insurer) of $28,000 for medical expenses was deducted. Expert fees and other litigation expenses amounted to slightly over $22,000. Under the Illinois fee structure, the plaintiff’s lawyers received $281,000. The plaintiff received the net balance of $43,437.

Adams v. Mareese involved a claim by a twenty-nine-year-old man that the defendant had performed three unnecessary fusion

19. No. 91-L-1026 (Ill. Cir. Ct. July, 6, 1993). Note that throughout this Article we report the relevant court’s docket number to identify where the case can be found. The Consumer Price Index (“CPI”) is used to make this and subsequent inflation adjustments. Though medical inflation costs have risen more steeply than the CPI, we have chosen the more conservative number.

20. Id.

21. Id.

22. Id.

23. Id.

24. No. 91-L-823 (Ill. Cir. Ct. Mar. 1995). 25. Id.

26. Id.

surgeries to the man’s neck requiring a fourth corrective surgery with an internal fixation.27 The alleged result was a complete loss of range of neck motion, chronic pain, permanent disability, and inability to work for the remainder of his life.28 The claim involved $91,000 in past medical expenses, approximately $140,000 in past wage loss and approximately $400,000 in future wage loss.29 The defendant denied the claims of negligence, stating that the original surgeries were necessary. The jury awarded the plaintiff $1,784,000 ($2,004,049 in 2005 dollars) divided as follows: $140,000 for past wage loss; $400,000 for future wage loss; $90,000 for past medical expenses, and $1,154,000 for disability, disfigurement and pain and suffering. The trial judge affirmed the verdict and in the judgment commented on judicial restraint “in response to defendant’s evasive answers, unsolicited elaborations, and assorted courtroom shenanigans.”30 The judgment further noted that the defendant was chastised out of the presence of the jury but threatened with chastisement in front of the jury for this behavior.31 The defendant appealed to the Fifth District Appellate Court and then to the Illinois Supreme Court, but the appeals were denied.32

Lemons v. Dave involved a claim of wrongful death for failure to diagnose and treat bladder cancer in a timely manner.33 A delay of twenty-five months allegedly resulted in the premature death of the patient. At the time of her death, the patient was fifty-eight and the mother of four children.34 The breakdown of the jury verdict of $470,000 ($509,000 in 2005 dollars) was as follows: medical expenses $70,000; pain and suffering, $250,000; husband of the deceased, $50,000 for loss of money, services, society, and sexual relations; the estate value of wife’s services, $50,000; reasonable society and loss of companionship and sex, $50,000. Judgment affirming the jury verdict was made on December 7, 2001.35 The verdict reporter notes that the plaintiff’s estate reached a confidential settlement with another defendant named in the lawsuit, suggesting that the plaintiff recovered more money than the verdict reflects.

27. No. 98-L-858 (Ill. Cir. Ct. Oct. 2000).

28. Id.

29. Id.

30. Id. Judgment at 26.

31. Id. at 25.

32.792 N.E.2d 305 (Ill. 2003) (table).

33.No. 99-LM-651 (Ill. Cir. Ct. Dec. 7, 2001).

34.Id.

35.Id.

B. St. Clair County

Table 2 reports verdicts in St. Clair County from 1992 through 2004. The table shows one very large verdict in 1993 of over $8 million, later reversed by an appeals court, but the note draws attention to the fact that another defendant in the case settled before trial for $2,950,000 ($3,915,000 in 2005 dollars). Only one other medical malpractice verdict for $250,000 was reported. Details are listed below.

Table 2: St. Clair Jury Verdicts in Medical Malpractice Trials: 1993-2004

Notes: a. Reversed and remanded by Ill.S.Ct. but another defendant settled pre-trial for $2,950,000; b. Doctor not liable but $550,000 assessed against the hospital for “slip and fall;” c. A civil rights claim with $150,000 in compensatory and punitive damages; d. Physicians not liable for medical negligence but a verdict of $950,000 against the hospital for “slip and fall.”

Holten v. Memorial Hospital involved a claim that the hospital failed to properly diagnose the plaintiff’s condition.36 The plaintiff alleged that, in 1990, she was admitted to Memorial Hospital emergency room with complaints of numbness and tingling in her lower extremities.37 She alleged that on the following day, the numbness and tingling progressed to paralysis which was not noticed by the nurses on the ward assigned to care for her. Plaintiff contended

36. No. 91-L-900 (Ill. Cir. Ct. Dec. 9, 1993).

37. Id.

that two days after admission, she was completely paralyzed in her lower extremities because the defendant had failed to properly diagnose her condition and administer treatment before her condition worsened.38 Memorial Hospital asserted that the plaintiff’s condition was properly diagnosed as being the result of a blood clot or circulation failure in the spine. Further, in a cross-claim, Memorial alleged that the treating physician incorrectly diagnosed her condition as caused by cancer, treated her for cancer, and failed to properly treat an infection in her spine, leading to the worsening of her condition.39

The jury awarded $8,706,500 to the plaintiff and $110,000 to her spouse. The trial judge agreed with the verdict on liability but reduced the award by $1,500,000.40 The appellate court affirmed the judgment on liability but further reduced the award to $4,366,500. The Illinois Supreme Court reviewed the case and ruled that the evidence supported the jury’s determination that the failure of the hospital staff to report the progression of the patient’s paralysis was a proximate cause of her paralysis. However, the supreme court further concluded that the trial court’s stated belief that a defense witness had been led by defense counsel to offer false testimony combined with plaintiff counsel’s prejudicial remarks during closing arguments (charging attorney misconduct) denied the hospital a fair trial. In addition, the court ruled that a jury instruction on aggravation of an injury caused by another tortfeasor’s (the surgeon’s) negligence and an additional instruction on proximate cause should not have been given. The case was reversed and remanded back to the original trial court. No further information could be found about the case, possibly indicating settlement between the parties or abandonment of the claim. However, it is noteworthy that a co-defendant, the plaintiff’s treating neurosurgeon, settled with plaintiff before trial for $2,950,000 ($3,314,606 in 2005 dollars). Additional research uncovered no evidence of a retrial or a settlement involving Memorial Hospital.

The notes to Table 2 indicate that, in two other cases, doctors were sued along with other parties but were found not liable for medical negligence, while co-defendants were found liable on other grounds and substantial damages were awarded.41 It is noteworthy that the juries in

38. Id.

39. Id.

40. Id.

41. Sherrod v. Ramaswami and Shroff, No. 97-63-GBC (Ill. Cir. Ct. Apr. 22, 2002), is an unusual case. The plaintiff was a convicted rapist who complained of abdominal pain and was diagnosed with suspected appendicitis. Id. The doctors did not take additional action for over two weeks despite continued complaints of severe pain by the plaintiff. Id. Eventually, a surgeon operated and found a ruptured appendix with gangreen having spread to the intestines. Id. The surgeon had to remove the appendix, four inches of small intestine, three inches of large