HB7279 93RD GENERAL ASSEMBLY

LRB093 21562 LCB 48803 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB7279

Introduced 3/18/2004, by Rep. Tom Cross

SYNOPSIS AS INTRODUCED:

New Act

Creates the Medical Malpractice Pre-Trial Review Act. Provides that the Medical Malpractice Pre-Trial Review shall consider any claim involving alleged malpractice occurring in Illinois by a health care provider. Outlines how the Review shall be selected. Provides for filing fees and fees for entering an appearance. Provides procedures for a hearing by the Review. Provides that the findings of the Review are admissible at trial as evidence. Provides that the findings of the Review are non-binding on the parties unless both parties agree. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning medical malpractice.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Medical Malpractice Pre-Trial Review Act.

Section 5. Public policy.

(a) The goal of this Act is to deter or eliminate nuisance lawsuits and to encourage parties to settle meritorious claims of medical malpractice.

(b) Pre-trial reviews identify claims of professional negligence that merit compensation.

(c) Pre-trial reviews identify claims that are without merit and should not be lawsuits in court.

(d) There is currently a medical malpractice crisis in Illinois that is driving physicians and other health providers out of this State. Due to the growing number of frivolous lawsuits against health care providers, the costs for health care providers are spiraling out of control and forcing doctors to move to other states.

Section 10. Definitions. As used in this Act:

"Health care provider" means a person who is licensed, certified, or otherwise authorized or permitted by the law of this State to administer health care in the ordinary course of business or practice of a profession including, but not limited to, a physician, nurse, health care facility, and any employee, officer, director, agent, or person under contract with such a person.

"Review" means the Medical Malpractice Pre-Trial Review.

Section 15. Applicability. The Medical Malpractice Pre-Trial Review shall consider any claim involving alleged malpractice occurring in Illinois by a health care provider.

Section 20. Formation and selection of Review.

(a) The Review shall consist of one attorney admitted to practice law in this State and 3 physicians licensed to practice medicine under the Medical Practice Act of 1987. The attorney shall act in an advisory capacity and as Chairperson of the Review, but shall have no vote.

(b) The Review shall be selected from among all physicians engaged in the active practice of medicine in this State, whether in the teaching profession or otherwise, who hold a license to practice medicine in this State in the following manner:

(1) Each party to the action shall have the right to select one physician and, upon selection, the physician shall be required to serve, except as provided in item (3) of this Section. The 2 physicians shall then select the third physician for the Review. If one of parties involved is a hospital, a fourth member who is a hospital administrator shall be selected by the hospital.

(2) When there are multiple plaintiffs or defendants, there shall be only one physician or hospital administrator picked per side. The plaintiff, whether single or multiple, shall have the right to select one physician.

(3) A Review member so selected shall serve, except that for good cause shown he or she may be excused. To show good cause for relief from serving, the Review member shall be required to serve an affidavit upon a judge of a court having jurisdiction over the claim when filed. The affidavit shall set out the facts showing that service would constitute an unreasonable burden or undue hardship. The judge may excuse the proposed Review member from serving.

(4) Within 20 days after receipt of notification of a proposed Review member by the plaintiff, the defendants shall select a proposed Review member and advise the plaintiff or his or her attorney.

(5) Within 20 days of receipt of notice of selection, written challenge without cause may be made to the Review member. Upon challenge, a party shall select another Review member. If multiple plaintiffs or defendants are unable to agree on a physician Review member, or if 2 challenges are made and submitted, the judge shall submit a list consisting of 3 qualified Review members and each side shall strike one and the remaining member shall serve in the place of the challenged Review member designated by the party.

(6) The Parties may agree on the attorney member of the board or, if no agreement can be reached, then 5 proposed attorney members shall be designated by the judge having jurisdiction of the cause. The parties shall then each strike 2 names alternatively with the plaintiff striking first until both sides have stricken 2 names and the remaining name shall be the attorney member of the Review.

(c) If the members of the Review have not been selected within 150 days of filing the claim, the court shall have authority to select members of the Review and to set a specific date for the hearing.

Section 25. Submission of claims.

(a) Once a lawsuit is filed with the Circuit Court for medical malpractice, the case shall be automatically sent to the Review.

(b) At the time of filing the lawsuit, the plaintiff shall pay to the Review a filing fee of $100.

(c) Within 20 days of receipt of the Review receiving the claim, each defendant in the notice or his or her representative shall file an appearance with the Review and send a copy to the plaintiff. At the time of filing, each defendant shall each pay a fee of $100 for entering an appearance per notice filed to the Review.

(d) The filing fee or the fee for entering an appearance may be waived under the following circumstances:

(1) the party is indigent;

(2) the party is or was an employee of another party and that other party stipulates that the employee at the time of the claimed injury was acting in the course and scope of employment with that other party; or

(3) the waiver is necessary to avoid requiring an individual who is a party to the case from paying 2 or more filing fees because a professional association or other business entity of which the individual is a member is also named as a party and has substantially the same interests as the individual in the case.

(e) Within 20 days of entry of appearance, each defendant shall contact the plaintiff's counsel and by agreement shall designate a timetable for filing all the relevant medical and provider records necessary to a determination of the Review and for completing discovery. If the parties are unable to agree on a timetable within 60 days of the entry of appearance, the plaintiff shall notify the Chairperson of the Review. The Chairperson shall then establish a timetable for the filing of all relevant records and reasonable discovery, which must be filed at least 30 days before any hearing date. The hearing may not be later than 6 months from the service of the notice of claim upon the clerk, except when the time period has been extended by the Review Chairperson in accordance with this Section.

(f) All requests for extension of time must be made to the Review Chairperson. The Chairperson may extend any time period for good cause, except that the Chairperson may not extend any time period that would result in the hearing being held more than one year from the filing of notice of claim upon the clerk unless good cause is shown.

(g) Except as otherwise as provided in this subsection, there shall be one combined hearing for all claims under this Section arising out of the same set of facts. Where there is one person accused of professional negligence against whom a notice of claim has been filed based on the same facts, the parties may, upon agreement of all parties, require that hearings be separated. The Chairperson may, for good cause, order separate hearings.

(h) If the Circuit Court dismisses the lawsuit, the action before the Review may be dismissed by the plaintiff by filing a notice of dismissal at any time prior to the appointment of the Review or by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal, stipulation, or order, the dismissal is without prejudice.

(i) Except as provided in subsection (h), an action shall not be dismissed on the plaintiff's motion except on order of the Chairperson of the Review and on terms and conditions the Chairperson deems proper.

(j) Upon failure of the plaintiff to prosecute or to comply with rules or any order of the Chairperson, and upon a motion by the Chairperson or any party, after notice to all parties has been given and the party against whom sanctions are proposed has had the opportunity to be heard and show good cause, the Chairperson may order appropriate sanctions, which may include dismissal of the case. If any sanctions are imposed, the Chairperson shall state the sanctions in writing and include the grounds for the sanctions. The involuntary dismissal shall be ruled a case without merit, and will be noted in the findings of the Review.

(k) Unless the Chairperson or the Review in an order for dismissal specifies otherwise, a dismissal under subsection (j) is with prejudice for purposes of proceedings before the Review. A dismissal with prejudice is deemed to be the equivalent of a finding for the defendant on all issues before the Review.

(l) Upon the failure of a defendant to comply with the rules or any order of the Chairperson, and upon the motion by the Chairperson or any party, after notice to all parties has been given and the party against whom sanctions are proposed has had the opportunity to be heard and show good cause, the Chairperson may order appropriate sanctions, which may include default. If any sanctions are imposed, the Chairperson shall state the sanctions in writing and include the grounds for the sanctions. Unless the Chairperson or the Review in its order for default specifies otherwise, a default under this subsection (l) is deemed to be the equivalent of a finding against the defendant on all issues before the Review.

Section 30. Hearings.

(a) The plaintiff or a representative of the plaintiff shall present the case before the Review. The defendant or defendant's representative shall make a responding presentation. Wide latitude shall be afforded the parties by the Review in the conduct of the hearing including, but not limited to, the right of examination and cross-examination by attorneys. The Chairperson shall make all procedural rulings and those rulings are final. The rules of evidence do not apply. Evidence must be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The Review shall make its findings based upon the evidence as it is presented at the hearing, the records, and any expert opinions provided by or sought by the Review or the parties.

(b) After presentation by the parties, as provided in this Section, the Review may request from either party additional facts, records, or other information to be submitted in writing or at a continued hearing. The continued hearing must be held as soon as possible and must be attended by the same members of the Review who have sat on all prior hearings in the same claim, unless otherwise agreed upon by all parties.

(c) The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, and any other form of evidence allowable by the Review.

(d) Except for the introduction into evidence of the report of the Review, all proceedings before the Review, all actions taken by any party or his or her counsel in preparation for the proceedings and the submission of any matter to the Review shall be handled on a confidential basis. The hearing may not be conducted as a public hearing and the proceedings before the Review shall not be matters of public record.

(e) Initiation of proceedings before the Review by a patient or his representative shall constitute waiver of any privilege or rights as to any hospital records or testimony or records of any physician or surgeon who is attending or has attended the patient for physical or mental conditions or injuries or conditions involved in the proceeding to the same extent and with like effect. Any witness providing information or facts or opinions to the Review shall be entitled to the immunities and protection provided to witnesses generally in court proceedings.

(f) The Review shall maintain a tape recorded record.

(g) Failure of a party, without good cause, to attend a properly scheduled hearing to participate in authorized discovery, or to otherwise substantially comply with this Act, shall result in a finding made by a majority of the Review against that party and that finding has the same effect as a finding against that party.

Section 35. Powers. The Review, through the Chairperson, shall have subpoena powers as exist for administrative law judges under the Illinois Administrative Code.

Section 40. Findings of the Review. The findings of the Review are admissible at trial as evidence. The findings are non-binding on the parties unless both parties agree.

Section 45. Effect of findings. The Review shall issue findings as to whether or not the claim filed is meritorious or does not reach the level of professional negligence.

Section 50. Statute of limitations; tolling. The running of the applicable limitation period in a medical malpractice claim shall be tolled upon submission of the case for the consideration of the Review and shall not commence to run again until 30 days after the Review's final decision is entered in the permanent files of the Review and a copy is served upon the plaintiff and his or her attorney by certified mail.

Section 99. Effective date. This Act takes effect upon becoming law.