A constitutional Amendment was proposed in the Illinois General Assembly to prevent courts from finding legislation about medical malpractice caps unconstitutional. In other words, although one of the jobs of courts is to strike down laws which are in conflict with the Constitution, we are not going to allow that in certain instances. If your mind hurts after thinking about that, you’re not alone.

The Republican senator Dave Luechtefeld sponsored the Amendment in response to the recent Illinois Supreme Court ruling. That opinion, discussed by Your Friend the Lawyer here, said that a recent law which put an arbitrary limit on the amount of compensation which a jury or judge can award a victim of medical malpractice unlawfully reaches into the role of the judicial system. A jury of citizens is entrusted with calculating whether to provide compensation and how much. If it is obviously too much, the judge has the power to reduce it.

The proposed Amendment would say no, the legislature is going to say how much a victim can be given in med mal cases. That way, if the constitution says it, we can cap damages and then it couldn’t be “unconstitutional” because it would already be in the constitution! Brilliant!

So for example, let’s say a doctor is operating on your 10 year old girl and leaves to take a cell phone call from his bookie and the operation goes wrong and the child suffers brain damage, or say the doctor cuts off both of her legs instead of removing her appendix. What is that worth?

Usually, in every type of injury case, a jury decides, either $0, or whatever. They can take into account almost any factor, including the victim’s life expectancy. Let’s say the twelve jurors decide unanimously that compensation for loss of normal life for a 10 year-old whose legs were cut off by mistake should be about $12,000 per year, or $1,000 per month. Does that sound like a crazy amount? Would you trade $1,000 per month for both legs, to not lose both your legs? Well, over say 65 more years that’s $780,000.

Not so fast, says the legislature. We are capping those damages at $500,000. We need a constitutional amendment to make sure that girl does not get more than $641 per month. Why? Why that amount? The only reason that has been given is that doctors pay too much in insurance premiums. Without getting into that debate, let me just say that insurance premiums rise for several reasons, and have, including bad investments by the insurance company. What’s more, med mal caps don’t translate into lower premiums for doctors anyway. In Texas and California where caps have been in place for years, premiums were not reduced despite the caps.

So compare the girl in our example to the doctor in our example. Who needs more protection? And how do you choose that cap? Will it rise with inflation? Notice also that no cap is being suggested for our own health insurance premiums.

Do you think these caps are a good idea?

Read the full text of the proposal (one paragraph) here.