SB0280sam001 94TH GENERAL ASSEMBLY

Sen. John J. Cullerton

Filed: 2/17/2005

09400SB0280sam001 LRB094 09387 WGH 41235 a

AMENDMENT TO SENATE BILL 280

AMENDMENT NO. ______. Amend Senate Bill 280 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Civil Procedure is amended by adding Section 2-1105.01 as follows:

(735 ILCS 5/2-1105.01 new)

Sec. 2-1105.01. Physician Personal Assets Protected.

(a) In a medical malpractice action as defined in Section 2-1704, a physician's personal assets may not be used to satisfy a judgment against the physician if:

(1) the physician has a policy of liability insurance of at least $1,000,000 of coverage available to satisfy the judgment against him or her in the case;

(2) before trial, the physician signs and provides a sworn affidavit to the plaintiff and the physician's insurer stating the following:

(A) the plaintiff has made a demand to settle the case against the physician within the physician's insurance policy limits (and the written demand is attached to the affidavit);

(B) the physician has made a written demand to the physician's insurer that the insurer settle the case within the physician's insurance policy limits (and the written demand is attached to the affidavit);

(C) the insurer for the physician has not settled the case within the physician's insurance policy limits pursuant to the written demand of the physician; and

(D) the physician agrees to assign to the plaintiff, after verdict, any and all causes of action the physician may have against the physician's insurer to prosecute a cause of action against that insurer for acting in bad faith or vexatiously and without reasonable cause by failing to settle the case within the physician's insurance policy limits; and

(3) after a verdict in excess of the physician's insurance policy limits, the physician has not withdrawn the demand to settle in subdivision (2)(B) and assigns to the plaintiff, pursuant to subdivision (2)(D), any and all causes of action the physician has against the physician's insurer for acting in bad faith or vexatiously and without reasonable cause by failing to settle the case within the physician's insurance policy limits.

(b) In a medical malpractice action as defined in Section 2-1704, if a physician does not make a written demand to settle in accordance with subdivision (2)(B) of subsection (a), the physician's personal assets may not be used to satisfy a judgment against the physician if:

(1) the physician meets the insurance requirements of paragraph (1) of subsection (a); and

(2) after the verdict, the court determines that the physician's decision not to make the written demand was reasonable. Such a determination may be made only in accordance with the following procedure:

(A) The physician must file a motion, within 10 days after the verdict, for the exemption of the physician's assets.

(B) The parties shall have 60 days after the motion is filed to conduct discovery as to whether the physician's decision not to make the written demand was reasonable.

(C) Upon completion of the discovery period and any additional time granted to the parties by the court for submissions in support of or opposition to the the motion, the court shall hold an evidentiary hearing, if necessary, and determine whether the physician's decision not to make the written demand was reasonable.

During the pendency of a motion filed by a physician under this subsection (b) for the exemption of the physician's assets, the enforcement of the judgment against the physician shall be stayed, but the physician shall be prohibited from transferring, concealing, or dissipating his or her assets. The physician shall not be required to post a bond or other form of security during the pendency of the motion.

The granting of a motion under this subsection (b) shall be conditioned upon the physician's assignment to the plaintiff, pursuant to subdivision (2)(D) of subsection (a), of any and all causes of action the physician has against the physician's insurer for acting in bad faith or vexatiously and without reasonable cause by failing to settle the case within the physician's insurance policy limits.

If the court denies a motion filed by a physician under this subsection (b) and determines that the physician's decision not to make a written demand was not reasonable, the physician may appeal the denial of the motion after a final judgment is entered in the case. Any appeal shall be the rules that apply to civil appeals, including Supreme Court Rule 305 regarding stays of enforcement of money judgments.

(c) This Section applies only to an individual physician who satisfies the requirements of subsection (a) or (b) and does not apply to any actual or alleged principal, apparent principal, employer, master, or partner of the physician, or any other party in the case.

(d) This Section does not restrict, impair, or otherwise affect the amount of damages which may be awarded to the plaintiff or the amount of any judgment in favor of the plaintiff.

(e) This Section does not restrict, impair, or otherwise affect the statutory and common law causes of action a physician or his or her assignee has against the physician's insurer for the insurer's acting in bad faith or vexatiously and without reasonable cause by failing to settle a case against the physician within the physician's insurance policy limits.

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