Full Text of SB0280 94th General Assembly
SB0280sam001 94TH GENERAL ASSEMBLY
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Sen. John J. Cullerton
Filed: 2/17/2005
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| AMENDMENT TO SENATE BILL 280
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| AMENDMENT NO. ______. Amend Senate Bill 280 by replacing | 3 |
| everything after the enacting clause with the following: | 4 |
| "Section 5. The Code of Civil Procedure is amended by | 5 |
| adding Section 2-1105.01 as follows: | 6 |
| (735 ILCS 5/2-1105.01 new)
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| Sec. 2-1105.01. Physician Personal Assets Protected. | 8 |
| (a) In a medical malpractice action as defined in Section | 9 |
| 2-1704, a physician's personal assets may not be used to | 10 |
| satisfy a judgment against the physician if: | 11 |
| (1) the physician has a policy of liability insurance | 12 |
| of at least $1,000,000 of coverage available to satisfy the | 13 |
| judgment against him or her in the case; | 14 |
| (2) before trial, the physician signs and provides a | 15 |
| sworn affidavit to the plaintiff and the physician's | 16 |
| insurer stating the following: | 17 |
| (A) the plaintiff has made a demand to settle the | 18 |
| case against the physician within the physician's | 19 |
| insurance policy limits (and the written demand is | 20 |
| attached to the affidavit); | 21 |
| (B) the physician has made a written demand to the | 22 |
| physician's insurer that the insurer settle the case | 23 |
| within the physician's insurance policy limits (and | 24 |
| the written demand is attached to the affidavit); |
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| (C) the insurer for the physician has not settled | 2 |
| the case within the physician's insurance policy | 3 |
| limits pursuant to the written demand of the physician; | 4 |
| and | 5 |
| (D) the physician agrees to assign to the | 6 |
| plaintiff, after verdict, any and all causes of action | 7 |
| the physician may have against the physician's insurer | 8 |
| to prosecute a cause of action against that insurer for | 9 |
| acting in bad faith or vexatiously and without | 10 |
| reasonable cause by failing to settle the case within | 11 |
| the physician's insurance policy limits; and | 12 |
| (3) after a verdict in excess of the physician's | 13 |
| insurance policy limits, the physician has not withdrawn | 14 |
| the demand to settle in subdivision (2)(B) and assigns to | 15 |
| the plaintiff, pursuant to subdivision (2)(D), any and all | 16 |
| causes of action the physician has against the physician's | 17 |
| insurer for acting in bad faith or vexatiously and without | 18 |
| reasonable cause by failing to settle the case within the | 19 |
| physician's insurance policy limits. | 20 |
| (b) In a medical malpractice action as defined in Section | 21 |
| 2-1704, if a physician does not make a written demand to settle | 22 |
| in accordance with subdivision (2)(B) of subsection (a), the | 23 |
| physician's personal assets may not be used to satisfy a | 24 |
| judgment against the physician if: | 25 |
| (1) the physician meets the insurance requirements of | 26 |
| paragraph (1) of subsection (a); and | 27 |
| (2) after the verdict, the court determines that the | 28 |
| physician's decision not to make the written demand was | 29 |
| reasonable. Such a determination may be made only in | 30 |
| accordance with the following procedure: | 31 |
| (A) The physician must file a motion, within 10 | 32 |
| days after the verdict, for the exemption of the | 33 |
| physician's assets.
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| (B) The parties shall have 60 days after the motion |
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| is filed to conduct discovery as to whether the | 2 |
| physician's decision not to make the written demand was | 3 |
| reasonable.
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| (C) Upon completion of the discovery period and any | 5 |
| additional time granted to the parties by the court for | 6 |
| submissions in support of or opposition to the the | 7 |
| motion, the court shall hold an evidentiary hearing, if | 8 |
| necessary, and determine whether the physician's | 9 |
| decision not to make the written demand was reasonable. | 10 |
| During the pendency of a motion filed by a physician under | 11 |
| this subsection (b) for the exemption of the physician's | 12 |
| assets, the enforcement of the judgment against the physician | 13 |
| shall be stayed, but the physician shall be prohibited from | 14 |
| transferring, concealing, or dissipating his or her assets. The | 15 |
| physician shall not be required to post a bond or other form of | 16 |
| security during the pendency of the motion.
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| The granting of a motion under this subsection (b) shall be | 18 |
| conditioned upon the physician's assignment to the plaintiff, | 19 |
| pursuant to subdivision (2)(D) of subsection (a), of any and | 20 |
| all causes of action the physician has against the physician's | 21 |
| insurer for acting in bad faith or vexatiously and without | 22 |
| reasonable cause by failing to settle the case within the | 23 |
| physician's insurance policy limits.
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| If the court denies a motion filed by a physician under | 25 |
| this subsection (b) and determines that the physician's | 26 |
| decision not to make a written demand was not reasonable, the | 27 |
| physician may appeal the denial of the motion after a final | 28 |
| judgment is entered in the case. Any appeal shall be the rules | 29 |
| that apply to civil appeals, including Supreme Court Rule 305 | 30 |
| regarding stays of enforcement of money judgments.
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| (c) This Section applies only to an individual physician | 32 |
| who satisfies the requirements of subsection (a) or (b) and | 33 |
| does not apply to any actual or alleged principal, apparent | 34 |
| principal, employer, master, or partner of the physician, or |
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| any other party in the case. | 2 |
| (d) This Section does not restrict, impair, or otherwise | 3 |
| affect the amount of damages which may be awarded to the | 4 |
| plaintiff or the amount of any judgment in favor of the | 5 |
| plaintiff. | 6 |
| (e) This Section does not restrict, impair, or otherwise | 7 |
| affect the statutory and common law causes of action a | 8 |
| physician or his or her assignee has against the physician's | 9 |
| insurer for the insurer's acting in bad faith or vexatiously | 10 |
| and without reasonable cause by failing to settle a case | 11 |
| against the physician within the physician's insurance policy | 12 |
| limits.
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| Section 99. Effective date. This Act takes effect upon | 14 |
| becoming law.".
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