Full Text of HB5151 97th General Assembly
HB5151sam002 97TH GENERAL ASSEMBLY | Sen. James F. Clayborne, Jr. Filed: 1/2/2013
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| 1 | | AMENDMENT TO HOUSE BILL 5151
| 2 | | AMENDMENT NO. ______. Amend House Bill 5151, AS AMENDED, by | 3 | | replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 1. Purpose. | 6 | | (a) In
Best v. Taylor Machine Works , 179 Ill.2d 367 (1997), | 7 | | the Illinois Supreme
Court held
that Public Act 89-7 was void | 8 | | in its entirety.
| 9 | | In Lebron v. Gottlieb Memorial Hospital , 237 Ill.2d 217 | 10 | | (2010), the Illinois Supreme Court held that Public Act 94-677 | 11 | | was void in its entirety. | 12 | | (b) The purpose of this Act
is to re-enact
and repeal
| 13 | | statutory provisions so the text of those provisions conforms | 14 | | to the decisions
of the Illinois
Supreme Court in Best v. | 15 | | Taylor Machine Works and Lebron v. Gottlieb Memorial Hospital .
| 16 | | (c) Except as explained in subsection (h) of this Section | 17 | | 1, this Act is not intended to supersede any Public Act of
the |
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| 1 | | 97th General
Assembly that
amends the text of a statutory | 2 | | provision that appears in this Act.
| 3 | | (d) If Public Act 89-7 or Public Act 94-677 amended the | 4 | | text of a
Section included in this Act, the text of
the Section | 5 | | is shown in this Act with the changes made by those Public Acts | 6 | | omitted, as existing text
(without striking and underscoring), | 7 | | with the exception of changes of a substantive nature.
| 8 | | (e) Provisions that were purportedly added to the statutes | 9 | | by Public Act 89-7
and Public Act 94-677 are
repealed in this | 10 | | Act to conform to the decisions of the
Illinois Supreme Court.
| 11 | | (f) If Public Act 89-7 or Public Act 94-677 purportedly | 12 | | amended the text of a
Section of
the statutes and that Section | 13 | | of the statutes was later repealed by another Public Act, the | 14 | | text of
that
Section is not shown in this Act. | 15 | | (g) This Act is intended to re-enact and repeal only those | 16 | | statutory provisions affected by Public Act 89-7 or Public Act | 17 | | 94-677 which concern civil procedure for medical malpractice | 18 | | cases. | 19 | | (h) This Act also makes substantive changes to the Code of | 20 | | Civil Procedure unrelated to Public Act 89-7 or Public Act | 21 | | 94-677, specifically by amending Sections 2-622 and 2-1114 and | 22 | | by adding Section 2-1306. | 23 | | Section 5. Section 2-622 of the Code of Civil Procedure is | 24 | | re-enacted and amended and Sections 8-1901 and 8-2501 of the | 25 | | Code of Civil Procedure are re-enacted as follows:
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| 1 | | (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
| 2 | | Sec. 2-622. Healing art malpractice.
| 3 | | (a) In any action, whether in
tort, contract or otherwise, | 4 | | in which the plaintiff seeks damages for
injuries or death by | 5 | | reason of medical, hospital, or other healing art
malpractice, | 6 | | the plaintiff's attorney or the plaintiff, if the plaintiff is
| 7 | | proceeding pro se, shall file an affidavit, attached to the | 8 | | original and
all copies of the complaint, declaring one of the | 9 | | following:
| 10 | | 1. That the affiant has consulted and reviewed the | 11 | | facts of the case
with a health professional who the | 12 | | affiant reasonably believes: (i) is
knowledgeable in the | 13 | | relevant issues involved in the particular action;
(ii) | 14 | | practices or has practiced within the last
6 years or | 15 | | teaches or
has taught within the last
6 years in the same | 16 | | area of health care or
medicine that is at issue in the | 17 | | particular action; and (iii)
is qualified
by experience or | 18 | | demonstrated competence in the subject of the case; that
| 19 | | the reviewing health professional has determined in a
| 20 | | written report, after a review of the medical record and | 21 | | other relevant
material involved in the particular action | 22 | | that there is a reasonable and
meritorious cause for the | 23 | | filing of such action; and that the affiant has
concluded | 24 | | on the basis of the reviewing health professional's review | 25 | | and
consultation that there is a reasonable and meritorious |
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| 1 | | cause for filing of
such action.
If the affidavit is filed | 2 | | as to a defendant who is a physician
licensed to treat | 3 | | human ailments without the use of drugs or medicines and
| 4 | | without operative surgery, a dentist, a podiatrist, a | 5 | | psychologist, or a
naprapath,
the written report must be | 6 | | from a health professional
licensed in the same profession, | 7 | | with the same class of license, as the
defendant. For
| 8 | | affidavits filed as to all other defendants, the written
| 9 | | report must be from a physician licensed to practice | 10 | | medicine in all its
branches. In either event, the
| 11 | | affidavit must identify the profession of
the reviewing | 12 | | health professional. A copy of the written report, clearly
| 13 | | identifying the plaintiff and the reasons for the reviewing | 14 | | health
professional's determination that a reasonable and | 15 | | meritorious cause for
the filing of the action exists, must | 16 | | be attached to the affidavit, but
information which would | 17 | | identify the reviewing health professional may be
deleted | 18 | | from the copy so attached.
| 19 | | 2.
That the affiant was unable to obtain a consultation | 20 | | required by
paragraph 1 because a statute of limitations | 21 | | would impair the action and
the consultation required could | 22 | | not be obtained before the expiration of
the statute of | 23 | | limitations. If an affidavit is executed pursuant to this
| 24 | | paragraph, the
certificate and written report required by | 25 | | paragraph 1 shall
be filed within 90 days after the filing | 26 | | of the complaint. The defendant
shall be excused from |
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| 1 | | answering or otherwise pleading until 30 days after
being | 2 | | served with
a certificate
required by paragraph 1.
| 3 | | 3.
That a request has been made by the plaintiff or his | 4 | | attorney for
examination and copying of records pursuant to | 5 | | Part 20 of Article VIII of
this Code and the party required | 6 | | to comply under those Sections has failed
to produce such | 7 | | records within 60 days of the receipt of the request. If an
| 8 | | affidavit is executed pursuant to this paragraph, the
| 9 | | certificate and
written report required by paragraph 1 | 10 | | shall be filed within 90 days
following receipt of the | 11 | | requested records. All defendants except those
whose | 12 | | failure to comply with Part 20 of Article VIII of this Code | 13 | | is the
basis for an affidavit under this paragraph shall be | 14 | | excused from answering
or otherwise pleading until 30 days | 15 | | after being served with the
certificate
required by | 16 | | paragraph 1.
| 17 | | (b)
Where
a certificate and written report are required | 18 | | pursuant to this
Section a separate
certificate and written | 19 | | report shall be filed as to each
defendant who has been named | 20 | | in the complaint and shall be filed as to each
defendant named | 21 | | at a later time.
| 22 | | (c)
Where the plaintiff intends to rely on the doctrine of | 23 | | "res ipsa
loquitur", as defined by Section 2-1113 of this Code, | 24 | | the
certificate and
written report must state that, in the | 25 | | opinion of the reviewing health
professional, negligence has | 26 | | occurred in the course of medical treatment.
The affiant shall |
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| 1 | | certify upon filing of the complaint that he is relying
on the | 2 | | doctrine of "res ipsa loquitur".
| 3 | | (d)
When the attorney intends to rely on the doctrine of | 4 | | failure to
inform of the consequences of the procedure, the | 5 | | attorney shall certify
upon the filing of the complaint that | 6 | | the reviewing health professional
has, after reviewing the | 7 | | medical record and other relevant materials involved
in the | 8 | | particular action, concluded that a reasonable health | 9 | | professional
would have informed the patient of the | 10 | | consequences of the procedure.
| 11 | | (e)
Allegations and denials in the affidavit, made without | 12 | | reasonable
cause and found to be untrue, shall subject the | 13 | | party pleading them or his
attorney, or both, to the payment of | 14 | | reasonable expenses, actually incurred
by the other party by | 15 | | reason of the untrue pleading, together with
reasonable | 16 | | attorneys' fees to be summarily taxed by the court upon motion
| 17 | | made within 30 days of the judgment or dismissal. In no event | 18 | | shall the
award for attorneys' fees and expenses exceed those | 19 | | actually paid by the
moving party, including the insurer, if | 20 | | any. In proceedings under this
paragraph (e), the moving party | 21 | | shall have the right to depose and examine
any and all | 22 | | reviewing health professionals who prepared reports used in
| 23 | | conjunction with an affidavit required by this Section. | 24 | | (f)
A reviewing health professional who in good faith | 25 | | prepares a report
used in conjunction with an affidavit | 26 | | required by this Section shall have
civil immunity from |
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| 1 | | liability which otherwise might result from the
preparation of | 2 | | such report.
| 3 | | (g)
The failure
to file a certificate required by
this | 4 | | Section shall be
grounds for dismissal
under Section 2-619.
| 5 | | (h) (Blank) This Section does not apply to or affect any | 6 | | actions pending
at the time of its effective date, but applies | 7 | | to cases filed on or
after its effective date .
| 8 | | (i) (Blank) This amendatory Act of 1997 does not apply to | 9 | | or affect any actions
pending at the time of its effective | 10 | | date, but applies to cases filed on or
after its effective | 11 | | date .
| 12 | | (Source: P.A. 86-646; 90-579, eff. 5-1-98.)
| 13 | | (735 ILCS 5/8-1901) (from Ch. 110, par. 8-1901)
| 14 | | Sec. 8-1901. Admission of liability - Effect. The providing | 15 | | of, or payment
for, medical, surgical,
hospital, or | 16 | | rehabilitation services, facilities, or equipment by or on
| 17 | | behalf of any person, or the offer to provide, or pay for, any | 18 | | one or
more of the foregoing, shall not be construed as an | 19 | | admission of any
liability by such person or persons. | 20 | | Testimony, writings, records,
reports or information with | 21 | | respect to the foregoing shall not be
admissible in evidence as | 22 | | an admission of any liability in any action of
any kind in any | 23 | | court or before any commission, administrative agency,
or other | 24 | | tribunal in this State, except at the instance of the person or
| 25 | | persons so making any such provision, payment or offer.
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| 1 | | (Source: P.A. 82-280.)
| 2 | | (735 ILCS 5/8-2501) (from Ch. 110, par. 8-2501)
| 3 | | Sec. 8-2501. Expert Witness Standards. In any case in which | 4 | | the standard of
care
given by a medical
profession is at issue, | 5 | | the court shall apply the
following standards to determine if a | 6 | | witness qualifies as an expert witness
and can testify on the | 7 | | issue of the appropriate standard of care.
| 8 | | (a)
Relationship of the medical specialties of the witness | 9 | | to the medical
problem or problems
and the type of treatment | 10 | | administered in the case;
| 11 | | (b) Whether the witness has devoted
a
substantial portion | 12 | | of his or her
time to the practice of medicine, teaching or | 13 | | University based research
in relation to the medical care and | 14 | | type of treatment at issue which gave
rise to the medical | 15 | | problem of which the plaintiff complains;
| 16 | | (c)
whether the witness is licensed
in the same profession | 17 | | as the defendant; and
| 18 | | (d) whether, in the case against a nonspecialist, the | 19 | | witness can
demonstrate a sufficient familiarity with the | 20 | | standard of care practiced in
this State.
| 21 | | (Source: P.A. 84-7.) | 22 | | Section 10. The Code of Civil Procedure is amended by | 23 | | changing Section 2-1114 and by adding Section 2-1306 as | 24 | | follows:
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| 1 | | (735 ILCS 5/2-1114) (from Ch. 110, par. 2-1114)
| 2 | | Sec. 2-1114. Contingent fees for attorneys in medical | 3 | | malpractice
actions. | 4 | | (a) In all medical malpractice actions the total contingent | 5 | | fee
for plaintiff's attorney or attorneys shall not exceed 33 | 6 | | 1/3% of all sums recovered. the following amounts:
| 7 | | 33 1/3% of the first $150,000 of the sum recovered;
| 8 | | 25% of the next $850,000 of the sum recovered; and
| 9 | | 20% of any amount recovered over $1,000,000 of the sum | 10 | | recovered.
| 11 | | (b) For purposes of determining any lump sum contingent | 12 | | fee, any future
damages recoverable by the plaintiff in | 13 | | periodic installments shall be
reduced to a lump sum value.
| 14 | | (c) (Blank) The court may review contingent fee agreements
| 15 | | for fairness. In special circumstances, where an
attorney | 16 | | performs extraordinary services involving more than usual
| 17 | | participation in time and effort the attorney may apply to the | 18 | | court for
approval of additional compensation .
| 19 | | (d) As used in this Section, "contingent fee basis"
| 20 | | includes any fee arrangement under which the compensation is to | 21 | | be
determined in whole or in part on the result obtained.
| 22 | | (Source: P.A. 84-7.)
| 23 | | (735 ILCS 5/2-1306 new) | 24 | | Sec. 2-1306. Supersedeas bonds. |
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| 1 | | (a) In civil litigation under any legal theory involving a | 2 | | signatory, a successor to a signatory, or a parent or an | 3 | | affiliate of a signatory to the Master Settlement Agreement | 4 | | described in Section 6z-43 of the State Finance Act, execution | 5 | | of the judgment shall be stayed during the entire course of | 6 | | appellate review upon the posting of a supersedeas bond or | 7 | | other form of security in accordance with applicable laws or | 8 | | court rules, except that the total amount of the supersedeas | 9 | | bond or other form of security that is required of all | 10 | | appellants collectively shall not exceed $250,000,000, | 11 | | regardless of the amount of the judgment, provided that this | 12 | | limitation shall apply only if appellants file at least 30% of | 13 | | the total amount in the form of cash, a letter of credit, a | 14 | | certificate of deposit, or other cash equivalent with the | 15 | | court. The cash or cash equivalent shall be deposited by the | 16 | | clerk of the court in the account of the court, and any | 17 | | interest earned shall be utilized as provided by law. | 18 | | (b) Notwithstanding subsection (a) of this Section, if an | 19 | | appellee proves by a preponderance of the evidence that an | 20 | | appellant is dissipating assets outside the ordinary course of | 21 | | business to avoid payment of a judgment, a court may require | 22 | | the appellant to post a supersedeas bond in an amount up to the | 23 | | total amount of the judgment. | 24 | | (c) This Section applies to pending actions as well as | 25 | | actions commenced on or after its effective date, and to | 26 | | judgments entered or reinstated on or after its effective date. |
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| 1 | | (735 ILCS 5/2-624 rep.) | 2 | | (735 ILCS 5/2-1704.5 rep.) | 3 | | (735 ILCS 5/2-1706.5 rep.) | 4 | | Section 15. The Code of Civil Procedure is amended by | 5 | | repealing Sections 2-624, 2-1704.5, and 2-1706.5. | 6 | | Section 95. Applicability. The changes made by this | 7 | | amendatory Act of the 97th General Assembly apply to actions | 8 | | commenced or pending on or after
the effective date of this | 9 | | amendatory Act of the
97th General Assembly. | 10 | | Section 97. Severability. The provisions of this Act are | 11 | | severable under Section 1.31 of the Statute on Statutes.
| 12 | | Section 99. Effective date. This Act takes effect upon | 13 | | becoming law.".
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