Full Text of SB1888 097th General Assembly
SB1888 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB1888 Introduced 2/10/2011, by Sen. Kirk W. Dillard SYNOPSIS AS INTRODUCED: |
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Re-enacts and repeals various statutory
provisions to eliminate changes that
were made
by Public Act 89-7, which was held to be void in its entirety by the Illinois
Supreme
Court in Best v. Taylor Machine Works . Repeals a provision of the Code of Civil Procedure concerning standards for economic and non-economic damages that was added by Public Act 94-677 and was specifically declared unconstitutional by the Illinois
Supreme
Court in Lebron v. Gottlieb Memorial Hospital and the Sorry Works! Pilot Program Act, which was declared unconstitutional because of the inseverability clause contained in Public Act 94-677. Effective
immediately.
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| | | FISCAL NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 1 | | AN ACT concerning civil actions.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Purpose. | 5 | | (a) In
Best v. Taylor Machine Works , 179 Ill. 2d 367 | 6 | | (1997), the Illinois Supreme
Court held
that Public Act 89-7 | 7 | | was void in its entirety.
| 8 | | The Illinois Supreme Court, in Lebron v. Gottlieb Memorial | 9 | | Hospital , found that the limitations on noneconomic damages in | 10 | | medical malpractice actions that were created in Public Act | 11 | | 94-677, contained in Section 2-1706.5 of the Code of Civil | 12 | | Procedure, violate the separation of powers clause of the | 13 | | Illinois Constitution. Because Public Act 94-677 contained an | 14 | | inseverability provision, the Court held the Act to be void in | 15 | | its entirety. The Court emphasized, however, that "because the | 16 | | other provisions contained in Public Act 94-677 are deemed | 17 | | invalid solely on inseverability grounds, the legislature | 18 | | remains free to reenact any provisions it deems appropriate". | 19 | | (b) The purpose of this Act
is to (i) re-enact
and repeal
| 20 | | statutory provisions so the text of those provisions conforms | 21 | | to the decision
of the Illinois
Supreme Court in Best v. Taylor | 22 | | Machine Works and (ii) repeal Section 2-1706.5 of the Code of | 23 | | Civil Procedure, which was specifically declared | 24 | | unconstitutional by the court in Lebron v. Gottlieb Memorial |
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| 1 | | Hospital , and the Sorry Works! Pilot Program Act, which was | 2 | | declared unconstitutional because of the inseverability clause | 3 | | contained in Public Act 94-677.
| 4 | | (c) This Act is not intended to supersede any Public Act of
| 5 | | the 97th General
Assembly that
amends the text of a statutory | 6 | | provision that appears in this Act.
| 7 | | (d) If a Public Act enacted after Public Act 89-7 amended | 8 | | the text of a
Section of
the statutes without including the | 9 | | changes made by Public Act 89-7, the text of
that
Section is | 10 | | shown in this Act as existing text
(without striking and | 11 | | underscoring) to conform to the decision of the
Illinois
| 12 | | Supreme Court, with the exception of changes of a revisory | 13 | | nature.
| 14 | | (e) If no Public Act enacted after Public Act 89-7 has | 15 | | amended the text of a
Section that was included in Public Act | 16 | | 89-7, the text of that
Section is re-enacted in this Act with | 17 | | striking and
underscoring to conform to
the decision
of the
| 18 | | Illinois Supreme Court.
| 19 | | (f) Provisions that were purportedly added to the statutes | 20 | | by Public Act 89-7
are
repealed in this Act to conform to the | 21 | | decision of the
Illinois Supreme Court.
| 22 | | (g) Provisions that were purportedly repealed by Public Act | 23 | | 89-7 are re-enacted (without striking and
underscoring) to | 24 | | conform
to the
decision of the Illinois Supreme Court.
| 25 | | (h) If Public Act 89-7 purportedly amended the text of a
| 26 | | Section of
the statutes and that Section of the statutes was |
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| 1 | | later repealed by another Public Act, the text of
that
Section | 2 | | is not shown in this Act.
| 3 | | Section 5. The Road Worker Safety Act is re-enacted as | 4 | | follows:
| 5 | | (430 ILCS 105/Act title)
| 6 | | An Act to protect workers and the general public from | 7 | | injury or death
during construction or repair of bridges and | 8 | | highways within the State of
Illinois.
| 9 | | (430 ILCS 105/0.01) (from Ch. 121, par. 314.01)
| 10 | | Sec. 0.01. Short title. This Act may be cited as the
Road | 11 | | Worker Safety Act.
| 12 | | (Source: P.A. 86-1324; P.A. 89-7.)
| 13 | | (430 ILCS 105/1) (from Ch. 121, par. 314.1)
| 14 | | Sec. 1. All construction work upon bridges or highways | 15 | | within the State of
Illinois shall be so performed and | 16 | | conducted that two-way traffic will be
maintained when such is | 17 | | safe and practical, and when not safe and
practical, or when | 18 | | any portion of the highway is obstructed, one-way
traffic shall | 19 | | be maintained, unless the authorized agency in charge of said
| 20 | | construction directs the road be closed to all traffic.
| 21 | | (Source: Laws 1959, p. 2044; P.A. 89-7.)
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| 1 | | (430 ILCS 105/2) (from Ch. 121, par. 314.2)
| 2 | | Sec. 2. At all times during which men are working where | 3 | | one-way
traffic is utilized, the contractor or his authorized | 4 | | agent in charge of
such construction will be required to | 5 | | furnish no fewer than two flagmen,
one at each end of the | 6 | | portion of highway or bridge on which only
one-way traffic is | 7 | | permitted, and at least 100 feet away from the
nearest point of | 8 | | the highway or bridge on which only one-way traffic is
safe and | 9 | | permitted. The flagmen shall be equipped with safe, suitable,
| 10 | | and proper signal devices as prescribed in the Manual on | 11 | | Uniform Traffic
Control Devices for Streets and Highways | 12 | | published by
the Department of Transportation, and shall so use | 13 | | such devices as to
inform approaching motorists to stop or | 14 | | proceed. In addition, safe,
suitable, and proper signals and | 15 | | signs as prescribed in the Manual shall
be so placed as to warn
| 16 | | approaching persons of the existence of any portion of highway | 17 | | or bridge
upon which only one-way traffic is safe and | 18 | | permitted. At bridge
construction or bridge repair sites, where | 19 | | one-way traffic is utilized,
traffic control signals | 20 | | conforming to the Manual may be installed and
operated in lieu | 21 | | of, or in addition to, flagmen. Whenever the Department
of | 22 | | Transportation or local authorities determine that a bridge or | 23 | | highway
construction site requires the closing of a road to | 24 | | through traffic, the
contract documents relating to such | 25 | | construction may specify alternate
procedures
for flagging and | 26 | | controlling traffic, when such procedures have been approved
by |
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| 1 | | the Department. When alternate procedures are not included, | 2 | | traffic
control and flagging will be as prescribed in the first | 3 | | paragraph of this
Section.
| 4 | | (Source: P.A. 82-408; 89-7.)
| 5 | | (430 ILCS 105/3) (from Ch. 121, par. 314.3)
| 6 | | Sec. 3. Drivers of any motor vehicle approaching any | 7 | | section of highway or
bridge which is limited to only one-way | 8 | | traffic shall obey warning signs
and shall stop their vehicles | 9 | | if signaled to do so by a flagman or a
traffic control signal.
| 10 | | (Source: Laws 1967, p. 468; P.A. 89-7.)
| 11 | | (430 ILCS 105/4) (from Ch. 121, par. 314.4)
| 12 | | Sec. 4. Any portion of highway or bridge which is closed to | 13 | | all traffic
shall be marked at each place where vehicles have | 14 | | accessible approach to
such portion of highway or bridge, and | 15 | | at a sufficient distance from the
closed portion of such | 16 | | highway or bridge shall be marked with an adequate
number of | 17 | | safe, suitable, and proper warning signs, signals or barricades
| 18 | | as set forth in the Manual of Uniform Traffic Control Devices | 19 | | for Streets
and Highways published by the Department of | 20 | | Transportation so as to give
warning to approaching motorists | 21 | | that such portion of bridge or highway is
closed and unsafe for | 22 | | travel.
| 23 | | (Source: P.A. 77-176; 89-7.)
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| 1 | | (430 ILCS 105/5) (from Ch. 121, par. 314.5)
| 2 | | Sec. 5. Any contractor, subcontractor, or his authorized | 3 | | agent in charge of
construction work on highways or bridges | 4 | | within the State of Illinois, or
any driver of any motor | 5 | | vehicle, who knowingly or wilfully violates any
provision of | 6 | | this Act, is guilty of a petty offense.
| 7 | | (Source: P.A. 77-2242; 89-7.)
| 8 | | (430 ILCS 105/6) (from Ch. 121, par. 314.6)
| 9 | | Sec. 6. Any contractor, subcontractor, or his or her | 10 | | authorized agent or
driver of any motor vehicle who knowingly | 11 | | or wilfully violates any
provision of this Act, shall be | 12 | | responsible for any injury to person or
property occasioned by | 13 | | such violation, and a right of action shall
accrue to any | 14 | | person injured for any damages sustained thereby; and in
case | 15 | | of loss of life by reason of such violation, a right of action
| 16 | | shall accrue to the surviving spouse of the person so killed,
| 17 | | his or her heirs, or to any
person or persons who were, before | 18 | | such loss of life, dependent for
support on the person so | 19 | | killed, for a like recovery of damages
sustained by reason of | 20 | | such loss of life.
| 21 | | (Source: P.A. 80-1154; 89-7.)
| 22 | | (430 ILCS 105/7) (from Ch. 121, par. 314.7)
| 23 | | Sec. 7. In case of any failure to comply with any of the | 24 | | provisions of this
Act, the Director of Labor may, through the |
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| 1 | | State's Attorney, or any other
attorney in case of his failure | 2 | | to act promptly, take the necessary legal
steps to enforce | 3 | | compliance therewith.
| 4 | | (Source: Laws 1959, p. 2044; P.A. 89-7.)
| 5 | | (430 ILCS 105/8) (from Ch. 121, par. 314.8)
| 6 | | Sec. 8. The provisions of this Act shall not apply to | 7 | | employees or
officials of the State of Illinois or any other | 8 | | public agency engaged in
the construction or maintenance of | 9 | | highways and bridges.
| 10 | | (Source: Laws 1959, p. 2044; P.A. 89-7.)
| 11 | | (710 ILCS 45/Act rep.) | 12 | | Section 10. The Sorry Works! Pilot Program Act is repealed. | 13 | | Section 15. Section 5-5-7 of the Unified Code of | 14 | | Corrections is re-enacted as follows:
| 15 | | (730 ILCS 5/5-5-7) (from Ch. 38, par. 1005-5-7)
| 16 | | Sec. 5-5-7. Neither the State, any local government, | 17 | | probation
department, public or community service program or | 18 | | site, nor any official,
volunteer, or employee thereof acting | 19 | | in the course of
their official duties shall be
liable for any | 20 | | injury or loss a person might receive while performing
public | 21 | | or community service as ordered either (1) by the court
or (2) | 22 | | by any duly authorized station or
probation adjustment, teen |
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| 1 | | court, community mediation, or other administrative
diversion | 2 | | program authorized by the Juvenile Court Act of 1987 for a | 3 | | violation
of a penal statute of this State or a local | 4 | | government ordinance (whether
penal,
civil, or quasi-criminal) | 5 | | or for a traffic offense,
nor shall they be
liable for any | 6 | | tortious acts of any person performing public or community
| 7 | | service, except for wilful, wanton misconduct or gross | 8 | | negligence on the
part of such governmental unit, probation | 9 | | department, or public or community
service program or site, or | 10 | | the official, volunteer, or employee.
| 11 | | (Source: P.A. 91-820, eff. 6-13-00.)
| 12 | | Section 20.
Sections 2-402, 2-604.1, 2-621, 2-1003, | 13 | | 2-1107.1, 2-1109,
2-1116, 2-1117, 2-1118, 2-1205.1, 2-1702, | 14 | | 8-802, 8-2001, 8-2003, 8-2501,
13-213, 13-214.3, and 13-217 of | 15 | | the Code of Civil Procedure are re-enacted
as follows:
| 16 | | (735 ILCS 5/2-402) (from Ch. 110, par. 2-402)
| 17 | | Sec. 2-402. Respondents in discovery. The plaintiff
in any | 18 | | civil action may designate as
respondents in discovery in his | 19 | | or her pleading those individuals or
other entities, other than
| 20 | | the named defendants, believed by the plaintiff to have | 21 | | information essential
to the determination of who should | 22 | | properly be named as additional
defendants in the action.
| 23 | | Persons or entities so named as respondents in discovery | 24 | | shall be required
to respond to discovery by the plaintiff in |
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| 1 | | the same manner as are
defendants and may, on motion of the | 2 | | plaintiff, be added as defendants
if the evidence discloses the | 3 | | existence of probable cause for such
action.
| 4 | | A person or entity named a respondent in discovery may upon | 5 | | his or
her own motion be
made a defendant in the action, in | 6 | | which case the provisions of this
Section are no longer | 7 | | applicable to that person.
| 8 | | A copy of the complaint shall be served on each person or | 9 | | entity named as a
respondent in discovery.
| 10 | | Each respondent in discovery shall be paid expenses and | 11 | | fees as
provided for witnesses.
| 12 | | A person or entity named as a respondent in discovery in | 13 | | any civil action may
be made a defendant in the same action at | 14 | | any time within 6 months after
being named as a respondent in | 15 | | discovery, even though the time during
which an action may | 16 | | otherwise be initiated against him or her may have expired
| 17 | | during such 6 month period.
An extension from the original | 18 | | 6-month period for good cause may be granted only once for up | 19 | | to 90 days for (i) withdrawal of plaintiff's counsel or (ii) | 20 | | good cause. Notwithstanding the limitations in this Section, | 21 | | the court may grant additional reasonable extensions from this | 22 | | 6-month period for a failure or refusal on the part of the | 23 | | respondent to comply with timely filed discovery.
| 24 | | The plaintiff shall serve upon the respondent or | 25 | | respondents a copy of the complaint together with a summons in | 26 | | a form substantially as follows:
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| 1 | | "STATE OF ILLINOIS | 2 | | COUNTY OF .................. | 3 | | IN THE CIRCUIT COURT OF ................ COUNTY, ILLINOIS
| 4 | | COUNTY DEPARTMENT, LAW DIVISION
| 5 | | (or, In the Circuit Court of the ............ Judicial Circuit)
| 6 | | ...................
| 7 | | Plaintiff(s),
| 8 | | v.
No.
| 9 | | .................
| 10 | | .................,
| 11 | | Defendant(s),
| 12 | | and
PLEASE SERVE:
| 13 | | .................
| 14 | | .................,
| 15 | | Respondent(s) in Discovery. | 16 | | SUMMONS FOR DISCOVERY
| 17 | | TO RESPONDENT IN DISCOVERY: | 18 | | YOU ARE HEREBY NOTIFIED that on ................, 20..... , | 19 | | a complaint, a copy of which is attached, was filed in the |
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| 1 | | above Court naming you as a Respondent in Discovery. Pursuant | 2 | | to the Illinois Code of Civil Procedure Section 2-402 and | 3 | | Supreme Court Rules 201 et. seq., and/or Court Order entered on | 4 | | .................................., the above named | 5 | | Plaintiff(s) are authorized to proceed with the discovery of | 6 | | the named Respondent(s) in Discovery. | 7 | | YOU ARE SUMMONED AND COMMANDED to appear for deposition, | 8 | | before a notary public (answer the attached written | 9 | | interrogatories), (respond to the attached request to | 10 | | produce), (or other appropriate discovery tool).
| 11 | | We are scheduled to take the oral discovery deposition of the | 12 | | above named Respondent, .................................., on | 13 | | ........................, 20..., at the hour of ..... | 14 | | a.m./p.m., at the office | 15 | | ..........................................., Illinois, in | 16 | | accordance with the rules and provisions of this Court. Witness | 17 | | and mileage fees in the amount of ....................... are | 18 | | attached (or)
| 19 | | (serve the following interrogatories, request to produce, or | 20 | | other appropriate discovery tool upon Respondent, | 21 | | ....................... to be answered under oath by | 22 | | Respondent, ............................, and delivered to the | 23 | | office of ................................., Illinois, within |
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| 1 | | 28 days from date of service).
| 2 | | TO THE OFFICER/SPECIAL PROCESS SERVER: | 3 | | This summons must be returned by the officer or other | 4 | | person to whom it was given for service, with endorsement or | 5 | | affidavit of service and fees and an endorsement or affidavit | 6 | | of payment to the Respondent of witness and mileage fees, if | 7 | | any, immediately after service. If service cannot be made, this | 8 | | summons shall be returned so endorsed. | 9 | | WITNESS, .....................
| 10 | | ..............................
| 11 | | Clerk of Court
| 12 | | Date of Service: .........., 20...
| 13 | | (To be inserted by officer on copy left
| 14 | | with Respondent or other person)
| 15 | | Attorney No.
| 16 | | Name: | 17 | | Attorney for: | 18 | | Address: | 19 | | City/State/Zip:
| 20 | | Telephone:". | 21 | | This amendatory Act of the 94th General Assembly applies to |
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| 1 | | causes of action pending on or after its effective date.
| 2 | | (Source: P.A. 94-582, eff. 1-1-06.)
| 3 | | (735 ILCS 5/2-604.1) (from Ch. 110, par. 2-604.1)
| 4 | | Sec. 2-604.1. Pleading of punitive damages. In all actions
| 5 | | on account of bodily injury or physical damage to property, | 6 | | based on
negligence, or product liability based on any theory | 7 | | or doctrine
strict
tort liability ,
where punitive damages are | 8 | | permitted
no complaint shall be filed containing a prayer for | 9 | | relief
seeking punitive damages. However, a
plaintiff may, | 10 | | pursuant to a pretrial motion and after a hearing before the
| 11 | | court, amend the complaint to include a prayer for relief | 12 | | seeking punitive
damages. The court shall allow the motion to | 13 | | amend the complaint if the
plaintiff establishes at such | 14 | | hearing a reasonable
likelihood of proving
facts at trial | 15 | | sufficient to support an award of punitive damages. Any
motion | 16 | | to amend the complaint to include a prayer for relief seeking
| 17 | | punitive damages shall be made not later than 30 days after the | 18 | | close of
discovery.
A prayer for relief added pursuant to this | 19 | | Section shall not be
barred by lapse of time under any statute | 20 | | prescribing or limiting the time
within which an action may be | 21 | | brought or right asserted if the time
prescribed or limited had | 22 | | not expired when the original pleading was filed.
| 23 | | (Source: P.A. 84-1431; 89-7.)
| 24 | | (735 ILCS 5/2-621) (from Ch. 110, par. 2-621)
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| 1 | | Sec. 2-621. Product liability actions. (a) In any product | 2 | | liability
action based on any theory or doctrine
in whole or in | 3 | | part on the
doctrine of strict liability in
tort commenced or | 4 | | maintained against a defendant or defendants other than
the | 5 | | manufacturer, that party shall upon answering or otherwise | 6 | | pleading
file an affidavit certifying the correct identity of | 7 | | the manufacturer of
the product allegedly causing injury, death | 8 | | or damage. The commencement
of a product liability action based | 9 | | on any theory or doctrine
in whole or
in part on the doctrine
| 10 | | of strict liability in tort against such defendant or | 11 | | defendants shall toll
the applicable statute of limitation and | 12 | | statute of repose relative to the
defendant or defendants for | 13 | | purposes of asserting a strict liability in
tort cause of | 14 | | action.
| 15 | | (b) Once the plaintiff has filed a complaint against the | 16 | | manufacturer
or manufacturers, and the manufacturer or | 17 | | manufacturers have or are required
to have answered or | 18 | | otherwise pleaded, the court shall order the dismissal
of a | 19 | | product liability action based on any theory or doctrine
strict
| 20 | | liability in tort claim against the certifying defendant or
| 21 | | defendants, provided the certifying defendant or defendants | 22 | | are not within
the categories set forth in subsection (c) of | 23 | | this Section. Due diligence
shall be exercised by the | 24 | | certifying defendant or defendants in providing
the plaintiff | 25 | | with the correct identity of the manufacturer or manufacturers,
| 26 | | and due diligence shall be exercised by the plaintiff in filing |
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| 1 | | an action
and obtaining jurisdiction over the manufacturer or | 2 | | manufacturers.
| 3 | | The plaintiff may at any time subsequent to the dismissal | 4 | | move to vacate
the order of dismissal and reinstate the | 5 | | certifying defendant or defendants,
provided plaintiff can | 6 | | show one or more of the following:
| 7 | | (1) That the applicable period of statute of limitation or | 8 | | statute of
repose bars the assertion of a strict liability in | 9 | | tort cause of action
against the manufacturer or manufacturers | 10 | | of the product allegedly causing
the injury, death or damage; | 11 | | or
| 12 | | (2) That the identity of the manufacturer given to the | 13 | | plaintiff by the
certifying defendant or defendants was | 14 | | incorrect. Once the correct identity
of the manufacturer has | 15 | | been given by the certifying defendant or defendants
the court | 16 | | shall again dismiss the certifying defendant or defendants; or
| 17 | | (3) That the manufacturer no longer exists, cannot be | 18 | | subject to the
jurisdiction
of the courts of this State, or, | 19 | | despite due diligence, the manufacturer
is not amenable to | 20 | | service of process; or
| 21 | | (4) That the manufacturer is unable to satisfy any judgment | 22 | | as determined
by the court; or
| 23 | | (5) That the court determines that the manufacturer would | 24 | | be unable to
satisfy a reasonable settlement or other agreement | 25 | | with plaintiff.
| 26 | | (c) A court shall not enter a dismissal order relative to |
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| 1 | | any certifying
defendant or defendants other than the | 2 | | manufacturer even though full compliance
with subsection (a) of | 3 | | this Section has been made where the plaintiff can
show one or | 4 | | more of the following:
| 5 | | (1) That the defendant has exercised some significant | 6 | | control over the
design or manufacture of the product, or has | 7 | | provided instructions or warnings
to the manufacturer relative | 8 | | to the alleged defect in the product which
caused the injury, | 9 | | death or damage; or
| 10 | | (2) That the defendant had actual knowledge of the defect | 11 | | in the product
which caused the injury, death or damage; or
| 12 | | (3) That the defendant created the defect in the product | 13 | | which caused
the injury, death or damage.
| 14 | | (d) Nothing contained in this Section shall be construed to | 15 | | grant a cause
of action on
in strict liability in tort or any | 16 | | other legal theory
or doctrine , or to affect
the right of any | 17 | | person to seek and obtain indemnity or contribution.
| 18 | | (e) This Section applies to all causes of action accruing | 19 | | on or after
September 24, 1979.
| 20 | | (Source: P.A. 84-1043; 89-7.)
| 21 | | (735 ILCS 5/2-1003) (from Ch. 110, par. 2-1003)
| 22 | | Sec. 2-1003. Discovery and depositions.
| 23 | | (a) Any party who by pleading alleges any claim for bodily | 24 | | injury or
disease,
including mental health injury or disease, | 25 | | shall be deemed to waive any
privilege between the injured |
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| 1 | | person and each health care provider who has
furnished care at | 2 | | any time to the injured person. "Health care provider" means
| 3 | | any person or entity who delivers or has delivered health care | 4 | | services,
including diagnostic services, and includes, but is | 5 | | not limited to, physicians,
psychologists, chiropractors, | 6 | | nurses, mental health workers,
therapists, and other healing | 7 | | art practitioners. Any party alleging any such
claim for bodily | 8 | | or mental health injury or disease shall, upon written request
| 9 | | of any other party who has appeared in the action, sign and | 10 | | deliver within 28
days to the requesting party a separate | 11 | | Consent authorizing each person or
entity who has provided | 12 | | health care at any time to the allegedly injured person
to:
| 13 | | (1) furnish the requesting party or the party's | 14 | | attorney a complete copy
of the chart or record of health | 15 | | care in the possession of the provider,
including reports | 16 | | sent to any third party, including any records generated by
| 17 | | other health care providers and in the possession of the | 18 | | health care provider,
and including radiographic films of | 19 | | any type;
| 20 | | (2) permit the requesting party or the
party's attorney | 21 | | to inspect the original chart or record of health care | 22 | | during
regular business hours and at the regular business | 23 | | location of the health care
provider, upon written request | 24 | | made not less than 7 days prior to the
inspection;
| 25 | | (3) accept and consider charts and other records of | 26 | | health care by others,
radiographic films, and documents, |
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| 1 | | including reports, deposition transcripts,
and letters, | 2 | | furnished to the health care provider by the requesting | 3 | | party or
the
party's attorney, before giving testimony in | 4 | | any deposition or trial or other
hearing;
| 5 | | (4) confer with the requesting party's attorney before | 6 | | giving testimony in
any deposition or trial or other | 7 | | hearing and engage in discussion with the
attorney on the | 8 | | subjects of the health care provider's observations | 9 | | related to
the allegedly injured party's health, including | 10 | | the following: the patient
history, whether
charted or | 11 | | otherwise recorded or not; the health care provider's | 12 | | opinions
related to
the patient's state of health, | 13 | | prognosis, etiology, or cause of the patient's
state of | 14 | | health at any time, and the nature and quality of care
by | 15 | | other health care providers, including whether any | 16 | | standard of care was or
was not breached; and the testimony | 17 | | the health care provider would give in
response
to any | 18 | | point of interrogation, and the education, experience, and
| 19 | | qualifications of the health care provider.
| 20 | | The form of the Consent furnished pursuant to this | 21 | | subsection (a) shall
recite that it is
signed and delivered | 22 | | under the authority of this subsection. Any variation in
the | 23 | | form of the Consent required by any health care provider, not | 24 | | subject to
the jurisdiction of the circuit court before which | 25 | | the action is pending, to
whom a request is directed under | 26 | | subdivision (1) or (2) of this subsection (a)
shall be accepted |
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| 1 | | by the allegedly injured party and the revised form requested
| 2 | | by the health care provider shall be signed and delivered to | 3 | | the requesting
party
within 28 days after it is tendered for | 4 | | signature.
| 5 | | All documents and information obtained pursuant to a | 6 | | Consent shall be
considered confidential. Disclosure may be | 7 | | made only to the parties to the
action, their attorneys, their | 8 | | insurers' representatives, and witnesses and
consultants whose | 9 | | testimony concerns medical treatment prognosis, or
| 10 | | rehabilitation, including expert witnesses.
| 11 | | A request for a Consent under this subsection (a) does not
| 12 | | preclude such subsequent requests as may reasonably be made | 13 | | seeking to expand
the scope of an earlier Consent which was | 14 | | limited to less than all the
authority permitted by | 15 | | subdivisions (1) through (4) of this subsection (a) or
seeking | 16 | | additional Consents for other health care providers.
| 17 | | The provisions of this subsection (a) do not restrict the | 18 | | right of any party
to discovery pursuant to rule.
| 19 | | Should a plaintiff refuse to timely comply with a request | 20 | | for signature and
delivery of a consent permitted by this | 21 | | subsection (a) the court, on motion,
shall issue an order | 22 | | authorizing disclosure to the party or parties requesting
said | 23 | | consent of all records and information mentioned herein or | 24 | | order the cause
dismissed pursuant to Section 2-619(a)(9).
| 25 | | (a-1) Discovery, admissions of
fact and of genuineness of | 26 | | documents and answers to interrogatories
shall be in accordance |
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| 1 | | with rules.
| 2 | | (b) The taking of depositions, whether for use in evidence | 3 | | or for
purposes of discovery in proceedings in this State or | 4 | | elsewhere, and
fees and charges in connection therewith, shall | 5 | | be in accordance with
rules.
| 6 | | (c) A party shall not be required to furnish the names or | 7 | | addresses
of his or her witnesses, except that upon motion of | 8 | | any party disclosure of the
identity of expert witnesses shall | 9 | | be made to all parties and the court
in sufficient time in | 10 | | advance of trial so as to insure a fair and
equitable | 11 | | preparation of the case by all parties.
| 12 | | (d) Whenever the defendant in any litigation in this State | 13 | | has the right
to demand a physical or mental examination of the | 14 | | plaintiff pursuant to
statute or Supreme Court Rule, relative | 15 | | to the occurrence and extent of
injuries or damages for which | 16 | | claim is made, or in connection with the
plaintiff's capacity | 17 | | to exercise any right plaintiff has, or would have
but for a | 18 | | finding based upon such examination, the plaintiff has the
| 19 | | right to have his or her attorney, or such other person as the | 20 | | plaintiff
may wish, present at such physical or mental | 21 | | examination.
| 22 | | (e) No person or organization shall be required to furnish | 23 | | claims,
loss or risk management information held or provided by | 24 | | an insurer, which
information is described in Section 143.10a | 25 | | of the "Illinois Insurance Code".
| 26 | | (f) This amendatory Act of 1995 applies to causes of action |
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| 1 | | filed
on and after its effective date.
| 2 | | (Source: P.A. 84-1431; 89-7.)
| 3 | | (735 ILCS 5/2-1107.1) (from Ch. 110, par. 2-1107.1)
| 4 | | Sec. 2-1107.1. Jury instruction in tort actions. In all | 5 | | actions
on account of bodily injury or death or physical damage | 6 | | to
property based on
negligence, or product liability based on | 7 | | any theory or doctrine
strict
tort liability , the court
shall
| 8 | | instruct the jury in writing , to the extent that it is true, | 9 | | that any award
of compensatory damages or punitive damages will | 10 | | not be taxable under federal
or State income tax law. The court | 11 | | shall not inform or instruct the jury
that the
defendant shall | 12 | | be found not liable
if the jury finds that the contributory | 13 | | fault of the plaintiff is more
than 50% of the proximate cause | 14 | | of the injury or damage for which recovery is
sought , but it | 15 | | shall be the duty of the court to deny recovery if the jury
| 16 | | finds that the plaintiff's contributory fault is more than 50% | 17 | | of the proximate
cause of the injury or damage. The court shall | 18 | | not inform or instruct the jury
concerning any limitations in | 19 | | the amount of non-economic damages or punitive
damages that are | 20 | | recoverable, but it shall be the duty of the trial court upon
| 21 | | entering judgment to reduce any award in excess of such | 22 | | limitation to no more
than the proper limitation .
| 23 | | This amendatory Act of 1995 applies to causes of action | 24 | | filed on or
after its effective date.
| 25 | | (Source: P.A. 84-1431; 89-7.)
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| 1 | | (735 ILCS 5/2-1109) (from Ch. 110, par. 2-1109)
| 2 | | Sec. 2-1109. Itemized verdicts.
In every case where damages | 3 | | for bodily injury or death
to the
person are
assessed by
the | 4 | | jury the verdict shall be itemized so as to reflect the | 5 | | monetary
distribution , if any, among economic loss and | 6 | | non-economic loss as
defined in Section
2-1115.2 , if any, and, | 7 | | in
healing art
medical malpractice cases,
further itemized so | 8 | | as to reflect the distribution of economic loss by
category, | 9 | | such itemization of economic loss by category to include: (a)
| 10 | | amounts intended to compensate for reasonable expenses which | 11 | | have been
incurred, or which will be incurred, for necessary | 12 | | medical, surgical,
x-ray, dental, or other health or | 13 | | rehabilitative services, drugs, and
therapy; (b) amounts | 14 | | intended to compensate for lost wages or loss of
earning | 15 | | capacity; and (c) all other economic losses claimed by the | 16 | | plaintiff
or granted by the jury. Each category of economic | 17 | | loss shall be further
itemized into amounts intended to | 18 | | compensate for losses which have been
incurred prior to the | 19 | | verdict and amounts intended to compensate for future
losses | 20 | | which will be incurred in the future .
| 21 | | This amendatory Act of 1995 applies to causes of action | 22 | | filed on or
after its effective date.
| 23 | | (Source: P.A. 84-7; 89-7.)
| 24 | | (735 ILCS 5/2-1116) (from Ch. 110, par. 2-1116)
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| 1 | | Sec. 2-1116. Limitation on recovery in tort actions ; fault .
| 2 | | (a) The purpose of this Section is to allocate the
| 3 | | responsibility of bearing or paying damages in actions brought | 4 | | on account of
death, bodily injury, or physical damage to | 5 | | property according to
the proportionate fault of the persons | 6 | | who proximately caused the damage.
| 7 | | (b) As used in this Section:
| 8 | | "Fault" means any act or omission that (i) is negligent, | 9 | | willful and
wanton,
or
reckless, is a breach of an express or | 10 | | implied warranty, gives rise to strict
liability in tort, or | 11 | | gives rise to liability under the provisions of any State
| 12 | | statute, rule, or local ordinance and (ii) is a proximate cause | 13 | | of death,
bodily injury to person, or physical damage to | 14 | | property for
which recovery is sought.
| 15 | | "Contributory fault" means any fault on the part of the | 16 | | plaintiff
(including but not limited to negligence, assumption | 17 | | of the risk,
or willful and wanton misconduct) which is a
| 18 | | proximate cause of the death, bodily injury to person, or
| 19 | | physical damage to property for which recovery is sought.
| 20 | | "Tortfeasor" means any person, excluding the injured | 21 | | person, whose fault is a
proximate cause of the death, bodily | 22 | | injury to person, or
physical damage to
property for which | 23 | | recovery is sought, regardless of whether that person is the
| 24 | | plaintiff's employer, regardless
of whether that person is | 25 | | joined as a party to the action, and regardless of
whether that | 26 | | person may have settled with the plaintiff.
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| 1 | | (c) In all actions on account of death, bodily injury
or | 2 | | death or physical damage to
property in which recovery is | 3 | | predicated upon fault , based on negligence,
or product | 4 | | liability based on strict tort
liability , the contributory | 5 | | fault chargeable to the plaintiff shall be
compared with the
| 6 | | fault of all tortfeasors whose fault was a proximate cause of | 7 | | the death,
injury, loss, or
damage for which recovery is | 8 | | sought. the plaintiff
shall be barred from recovering damages | 9 | | if the trier of fact finds that the
contributory fault on the | 10 | | part of the plaintiff is more than 50% of
the proximate cause | 11 | | of the injury or damage for which recovery is sought.
The | 12 | | plaintiff shall not be barred from recovering damages if the | 13 | | trier of
fact finds that the contributory fault on the part of | 14 | | the plaintiff is not
more than 50% of the proximate cause of | 15 | | the injury or damage for which recovery
is sought,
but any | 16 | | economic or non-economic damages allowed shall be diminished in | 17 | | the
proportion to the amount
of fault attributable to the | 18 | | plaintiff.
| 19 | | (d) Nothing in this Section shall be construed
to create a | 20 | | cause of action.
| 21 | | (e) This amendatory Act of 1995 applies to causes of action | 22 | | accruing
on or after its effective date.
| 23 | | (Source: P.A. 84-1431; 89-7.)
| 24 | | (735 ILCS 5/2-1117) (from Ch. 110, par. 2-1117)
| 25 | | Sec. 2-1117. Joint liability. Except as provided in Section |
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| 1 | | 2-1118,
in actions on account of bodily injury or death or | 2 | | physical damage to
property, based on negligence, or product | 3 | | liability based on strict tort
liability, all defendants found | 4 | | liable are jointly and
severally liable for plaintiff's past | 5 | | and future medical and medically
related expenses. Any | 6 | | defendant whose fault, as determined by the
trier of fact, is | 7 | | less than 25% of the total fault attributable to the
plaintiff, | 8 | | the defendants sued by the plaintiff, and any third party
| 9 | | defendant except the plaintiff's employer, shall be severally
| 10 | | liable for all other damages. Any defendant whose fault, as
| 11 | | determined by the trier of fact, is 25% or greater of the total | 12 | | fault
attributable to the plaintiff, the defendants sued by the | 13 | | plaintiff, and
any third party defendants except the | 14 | | plaintiff's employer, shall
be jointly and severally liable for | 15 | | all other damages.
| 16 | | (Source: P.A. 93-10, eff. 6-4-03; 93-12, eff. 6-4-03.)
| 17 | | (735 ILCS 5/2-1118)
| 18 | | Sec. 2-1118. Exceptions. Notwithstanding the
provisions | 19 | | of Section 2-1117, in
any action in which the trier of fact | 20 | | determines that
the injury or damage for which recovery is | 21 | | sought was caused by an act
involving the discharge into the | 22 | | environment of any pollutant, including
any waste, hazardous
| 23 | | substance, irritant or contaminant, including, but not limited | 24 | | to smoke,
vapor, soot, fumes,
acids, alkalis, asbestos, toxic | 25 | | or corrosive chemicals, radioactive waste
or mine tailings, and |
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| 1 | | including any such material intended to be recycled,
| 2 | | reconditioned or reclaimed, any defendants found liable shall | 3 | | be jointly
and severally liable for
such damage. However, | 4 | | Section 2-1117 shall apply to a defendant who is a
response
| 5 | | action contractor. As used in this Section, "response action | 6 | | contractor"
means an individual,
partnership, corporation, | 7 | | association, joint venture or other commercial
entity or an | 8 | | employee, agent, sub-contractor, or consultant thereof which
| 9 | | enters into a contract, for the performance of
remedial or | 10 | | response action, or for the identification, handling, storage,
| 11 | | treatment or disposal of a pollutant, which is entered into | 12 | | between any
person or entity and a response action contractor | 13 | | when such response action
contractor is not liable for the | 14 | | creation or maintenance of the condition to be
ameliorated | 15 | | under the contract.
| 16 | | Notwithstanding the provisions of Section 2-1117, in any | 17 | | medical
malpractice action, as defined in Section 2-1704, based | 18 | | upon negligence,
any defendants found liable shall be jointly | 19 | | and severally liable.
| 20 | | (Source: P.A. 84-1431; 89-7.)
| 21 | | (735 ILCS 5/2-1205.1) (from Ch. 110, par. 2-1205.1)
| 22 | | Sec. 2-1205.1. Reduction in amount of recovery. In all | 23 | | cases
on account of bodily injury or death or physical damage | 24 | | to property, based
on negligence, or product liability based on | 25 | | any theory or doctrine
strict tort liability ,
to which Section |
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| 1 | | 2-1205 does not apply, the amount in excess of $25,000 of the
| 2 | | benefits provided for medical
charges, hospital charges, or | 3 | | nursing or caretaking charges, which have been
paid, or which | 4 | | have become payable by the date of judgment to the injured
| 5 | | person by any other
insurance company or fund in relation to a | 6 | | particular
injury, shall be deducted from any judgment.
| 7 | | Provided, however, that:
| 8 | | (1) Application is made within 30 days to reduce the | 9 | | judgment;
| 10 | | (2) Such reduction shall not apply to the extent that there | 11 | | is a
right of recoupment through subrogation, trust agreement, | 12 | | contract, lien,
operation of law or otherwise;
| 13 | | (3) The reduction shall not reduce the judgment by more | 14 | | than 50% of
the total amount of the judgment entered on the | 15 | | verdict; and
| 16 | | (4) The damages awarded shall be increased by the amount of | 17 | | any
insurance premiums or the direct costs paid by the | 18 | | plaintiff for such
benefits in the 2 years prior to plaintiff's | 19 | | injury or death or to be paid
by the plaintiff in the future | 20 | | for such benefits.
| 21 | | (Source: P.A. 84-1431; 89-7.)
| 22 | | (735 ILCS 5/2-1702) (from Ch. 110, par. 2-1702)
| 23 | | Sec. 2-1702. Economic/Non-Economic Loss. As used in this | 24 | | Part , "economic
loss" and "non-economic loss" are defined as in | 25 | | Section 2-1115.2.
:
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| 1 | | (a) "Economic loss" means all pecuniary harm for which | 2 | | damages
are recoverable.
| 3 | | (b) "Non-economic loss" means loss of consortium and all | 4 | | nonpecuniary
harm for which damages are recoverable, | 5 | | including, without limitation,
damages for pain and suffering, | 6 | | inconvenience, disfigurement, and
physical impairment.
| 7 | | (Source: P.A. 84-7; 89-7.)
| 8 | | (735 ILCS 5/8-802) (from Ch. 110, par. 8-802)
| 9 | | Sec. 8-802. Physician and patient. No physician or surgeon | 10 | | shall be
permitted to disclose any information he or she may | 11 | | have acquired in
attending any patient in a professional | 12 | | character, necessary to enable him
or her professionally to | 13 | | serve the patient, except only (1) in trials for
homicide when | 14 | | the disclosure relates directly to the fact or immediate
| 15 | | circumstances of the homicide, (2) in actions, civil or | 16 | | criminal, against
the physician for malpractice, (3) with the | 17 | | expressed consent of the
patient, or in case of his or her | 18 | | death or disability, of his or her
personal representative or | 19 | | other person authorized to sue for personal
injury or of the | 20 | | beneficiary of an insurance policy on his or her life,
health, | 21 | | or physical condition, (4) in all actions brought by or against | 22 | | the
patient, his or her personal representative, a beneficiary | 23 | | under a policy
of insurance, or the executor or administrator | 24 | | of his or her estate wherein
the patient's physical or mental | 25 | | condition is an issue, (5) upon an issue
as to the validity of |
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| 1 | | a document as a will of the patient, (6) in any
criminal action | 2 | | where the charge is either first degree murder by abortion,
| 3 | | attempted abortion or abortion, (7) in actions, civil or | 4 | | criminal, arising
from the filing of a report in compliance | 5 | | with the Abused and Neglected
Child Reporting Act, (8) to any | 6 | | department, agency, institution
or facility which has custody | 7 | | of the patient pursuant to State statute
or any court order of | 8 | | commitment, (9) in prosecutions where written
results of blood | 9 | | alcohol tests are admissible pursuant to Section 11-501.4
of | 10 | | the Illinois Vehicle Code, (10) in prosecutions where written
| 11 | | results of blood alcohol tests are admissible under Section | 12 | | 5-11a of the
Boat Registration and Safety Act,
(11) in criminal | 13 | | actions arising from the filing of a report of suspected
| 14 | | terrorist offense in compliance with Section 29D-10(p)(7) of | 15 | | the Criminal Code
of 1961, or (12) upon the issuance of a | 16 | | subpoena pursuant to Section 38 of the Medical Practice Act of | 17 | | 1987; the issuance of a subpoena pursuant to Section 25.1 of | 18 | | the Illinois Dental Practice Act; or the issuance of a subpoena | 19 | | pursuant to Section 22 of the Nursing Home Administrators | 20 | | Licensing and Disciplinary Act.
| 21 | | In the event of a conflict between the application of this | 22 | | Section
and the Mental Health and Developmental Disabilities | 23 | | Confidentiality
Act to a specific situation, the provisions of | 24 | | the Mental Health and
Developmental Disabilities | 25 | | Confidentiality Act shall control.
| 26 | | (Source: P.A. 95-478, eff. 8-27-07.)
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| 1 | | (735 ILCS 5/8-2001) (from Ch. 110, par. 8-2001)
| 2 | | Sec. 8-2001. Examination of health care records.
| 3 | | (a) In this Section: | 4 | | "Health care facility" or "facility" means a public or
| 5 | | private hospital, ambulatory surgical treatment center, | 6 | | nursing home,
independent practice association, or physician | 7 | | hospital organization, or any
other entity where health care | 8 | | services are provided to any person. The term
does not include | 9 | | a health care practitioner.
| 10 | | "Health care practitioner" means any health care | 11 | | practitioner, including a physician, dentist, podiatrist, | 12 | | advanced practice nurse, physician assistant, clinical | 13 | | psychologist, or clinical social worker. The term includes a | 14 | | medical office, health care clinic, health department, group | 15 | | practice, and any other organizational structure for a licensed | 16 | | professional to provide health care services. The term does not | 17 | | include a health care facility.
| 18 | | (b) Every private and public health care facility shall, | 19 | | upon the request of any
patient who has been treated in such | 20 | | health care facility, or any person, entity, or organization | 21 | | presenting a valid authorization for the release of records | 22 | | signed by the patient or the patient's legally authorized | 23 | | representative, permit the patient,
his or her health care | 24 | | practitioner,
authorized attorney, or any person, entity, or | 25 | | organization presenting a valid authorization for the release |
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| 1 | | of records signed by the patient or the patient's legally | 2 | | authorized representative to examine the health care facility
| 3 | | patient care records,
including but not limited to the history, | 4 | | bedside notes, charts, pictures
and plates, kept in connection | 5 | | with the treatment of such patient, and
permit copies of such | 6 | | records to be made by him or her or his or her
health care | 7 | | practitioner or authorized attorney. | 8 | | (c) Every health care practitioner shall, upon the request | 9 | | of any patient who has been treated by the health care | 10 | | practitioner, or any person, entity, or organization | 11 | | presenting a valid authorization for the release of records | 12 | | signed by the patient or the patient's legally authorized | 13 | | representative, permit the patient and the patient's health | 14 | | care practitioner or authorized attorney, or any person, | 15 | | entity, or organization presenting a valid authorization for | 16 | | the release of records signed by the patient or the patient's | 17 | | legally authorized representative, to examine and copy the | 18 | | patient's records, including but not limited to those relating | 19 | | to the diagnosis, treatment, prognosis, history, charts, | 20 | | pictures and plates, kept in connection with the treatment of | 21 | | such patient. | 22 | | (d) A request for copies of the records shall
be in writing | 23 | | and shall be delivered to the administrator or manager of
such | 24 | | health care facility or to the health care practitioner. The
| 25 | | person (including patients, health care practitioners and | 26 | | attorneys)
requesting copies of records shall reimburse the |
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| 1 | | facility or the health care practitioner at the time of such | 2 | | copying for all
reasonable expenses, including the costs of | 3 | | independent copy service companies,
incurred in connection | 4 | | with such copying not to
exceed a $20 handling charge for | 5 | | processing the
request and the actual postage or shipping | 6 | | charge, if any, plus: (1) for paper copies
75 cents per page | 7 | | for the first through 25th pages, 50
cents per page for the | 8 | | 26th through 50th pages, and 25 cents per page for all
pages in | 9 | | excess of 50 (except that the charge shall not exceed $1.25 per | 10 | | page
for any copies made from microfiche or microfilm; records | 11 | | retrieved from scanning, digital imaging, electronic | 12 | | information or other digital format do not qualify as | 13 | | microfiche or microfilm retrieval for purposes of calculating | 14 | | charges); and (2) for electronic records, retrieved from a | 15 | | scanning, digital imaging, electronic information or other | 16 | | digital format in a electronic document, a charge of 50% of the | 17 | | per page charge for paper copies under subdivision (d)(1). This | 18 | | per page charge includes the cost of each CD Rom, DVD, or other | 19 | | storage media. Records already maintained in an electronic or | 20 | | digital format shall be provided in an electronic format when | 21 | | so requested.
If the records system does not allow for the | 22 | | creation or transmission of an electronic or digital record, | 23 | | then the facility or practitioner shall inform the requester in | 24 | | writing of the reason the records can not be provided | 25 | | electronically. The written explanation may be included with | 26 | | the production of paper copies, if the requester chooses to |
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| 1 | | order paper copies. These rates shall be automatically adjusted | 2 | | as set forth in Section 8-2006.
The facility or health care | 3 | | practitioner may, however, charge for the
reasonable cost of | 4 | | all duplication of
record material or information that cannot | 5 | | routinely be copied or duplicated on
a standard commercial | 6 | | photocopy machine such as x-ray films or pictures.
| 7 | | (e) The requirements of this Section shall be satisfied | 8 | | within 30 days of the
receipt of a written request by a patient | 9 | | or by his or her legally authorized
representative, health care | 10 | | practitioner,
authorized attorney, or any person, entity, or | 11 | | organization presenting a valid authorization for the release | 12 | | of records signed by the patient or the patient's legally | 13 | | authorized representative. If the facility
or health care | 14 | | practitioner needs more time to comply with the request, then | 15 | | within 30 days after receiving
the request, the facility or | 16 | | health care practitioner must provide the requesting party with | 17 | | a written
statement of the reasons for the delay and the date | 18 | | by which the requested
information will be provided. In any | 19 | | event, the facility or health care practitioner must provide | 20 | | the
requested information no later than 60 days after receiving | 21 | | the request.
| 22 | | (f) A health care facility or health care practitioner must | 23 | | provide the public with at least 30 days prior
notice of the | 24 | | closure of the facility or the health care practitioner's | 25 | | practice. The notice must include an explanation
of how copies | 26 | | of the facility's records may be accessed by patients. The
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| 1 | | notice may be given by publication in a newspaper of general | 2 | | circulation in the
area in which the health care facility or | 3 | | health care practitioner is located.
| 4 | | (g) Failure to comply with the time limit requirement of | 5 | | this Section shall
subject the denying party to expenses and | 6 | | reasonable attorneys' fees
incurred in connection with any | 7 | | court ordered enforcement of the provisions
of this Section.
| 8 | | (Source: P.A. 94-155, eff. 1-1-06; 95-478, eff. 1-1-08 (changed | 9 | | from 8-27-07 by P.A. 95-480); 95-480, eff. 1-1-08.)
| 10 | | (735 ILCS 5/8-2501) (from Ch. 110, par. 8-2501)
| 11 | | Sec. 8-2501. Expert Witness Standards. In any case in which | 12 | | the standard of
care applicable to a medical professional is at | 13 | | issue, the court shall apply the
following standards to | 14 | | determine if a witness qualifies as an expert witness
and can | 15 | | testify on the issue of the appropriate standard of care.
| 16 | | (a) Whether the witness is board certified or board | 17 | | eligible, or has completed a residency, in the same or | 18 | | substantially similar medical specialties as the defendant and | 19 | | is otherwise qualified by significant experience with the | 20 | | standard of care, methods, procedures, and treatments relevant | 21 | | to the allegations against the defendant;
| 22 | | (b) Whether the witness has devoted
a majority of his or | 23 | | her
work time to the practice of medicine, teaching or | 24 | | University based research
in relation to the medical care and | 25 | | type of treatment at issue which gave
rise to the medical |
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| 1 | | problem of which the plaintiff complains;
| 2 | | (c)
whether the witness is licensed
in the same profession | 3 | | with the same class of license as the defendant if the | 4 | | defendant is an individual; and
| 5 | | (d) whether, in the case against a nonspecialist, the | 6 | | witness can
demonstrate a sufficient familiarity with the | 7 | | standard of care practiced in
this State.
| 8 | | An expert shall provide evidence of active practice, | 9 | | teaching, or engaging in university-based research. If | 10 | | retired, an expert must provide evidence of attendance and | 11 | | completion of continuing education courses for 3 years previous | 12 | | to giving testimony. An expert who has not actively practiced, | 13 | | taught, or been engaged in university-based research, or any | 14 | | combination thereof, during the preceding 5 years may not be | 15 | | qualified as an expert witness.
| 16 | | The changes to this Section made by this amendatory Act of | 17 | | the 94th General Assembly apply to causes of action accruing on | 18 | | or after its effective date.
| 19 | | (Source: P.A. 94-677, eff. 8-25-05.)
| 20 | | (735 ILCS 5/13-213) (from Ch. 110, par. 13-213)
| 21 | | Sec. 13-213. Product liability ; statute of repose .
| 22 | | (a) As used in this Section, the term:
| 23 | | (1) "alteration, modification or change" or "altered, | 24 | | modified, or
changed" means an alteration, modification or | 25 | | change that was made in
the original makeup |
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| 1 | | characteristics, function or design of a product or
in the | 2 | | original recommendations, instructions and warnings given | 3 | | with
respect to a product including the failure properly to | 4 | | maintain and care
for a product.
| 5 | | (2) "product" means any tangible object or goods | 6 | | distributed in
commerce, including any service provided in | 7 | | connection with the product.
Where the term "product unit" | 8 | | is used, it refers to a single item or
unit of a product.
| 9 | | (3) "product liability action" means any action based | 10 | | on any theory or
the
doctrine of strict liability in tort
| 11 | | brought against the seller of a
product on account of | 12 | | personal injury, (including illness, disease,
disability | 13 | | and death) or property, economic or other damage allegedly
| 14 | | caused by or resulting from the manufacture, construction, | 15 | | preparation,
assembly, installation, testing, makeup, | 16 | | characteristics, functions,
design, formula, plan, | 17 | | recommendation, specification, prescription,
advertising, | 18 | | sale, marketing, packaging, labeling, repair, maintenance
| 19 | | or disposal of, or warning or instruction regarding any | 20 | | product. This
definition excludes actions brought by State | 21 | | or federal regulatory
agencies pursuant to statute.
| 22 | | (4) "seller" means one who, in the course of a business | 23 | | conducted
for the purpose, sells, distributes, leases, | 24 | | assembles, installs,
produces, manufactures, fabricates, | 25 | | prepares, constructs, packages,
labels, markets, repairs, | 26 | | maintains, or otherwise is involved in placing
a product in |
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| 1 | | the stream of commerce.
| 2 | | (b) Subject to the provisions of subsections (c) and (d) no | 3 | | product
liability action based on any theory or
the doctrine of | 4 | | strict
liability in tort shall
be commenced except within the | 5 | | applicable limitations period and, in any
event, within 12 | 6 | | years from the date of first sale, lease or delivery of
| 7 | | possession by a seller or 10 years from the date of first sale, | 8 | | lease or
delivery of possession to its initial user, consumer, | 9 | | or other
non-seller, whichever period expires earlier, of any | 10 | | product unit that
is claimed to have injured or damaged the | 11 | | plaintiff, unless the
defendant expressly has warranted or | 12 | | promised the product for a longer
period and the action is | 13 | | brought within that period.
| 14 | | (c) No product liability action based on any theory or
the
| 15 | | doctrine
of strict
liability in tort to recover for injury or | 16 | | damage claimed to have
resulted from an alteration, | 17 | | modification or change of the product unit
subsequent to the | 18 | | date of first sale, lease or delivery of possession of
the | 19 | | product unit to its initial user, consumer or other non-seller | 20 | | shall
be limited or barred by subsection (b) hereof if:
| 21 | | (1) the action is brought against a seller making, | 22 | | authorizing, or
furnishing materials for the | 23 | | accomplishment of such alteration,
modification or change | 24 | | (or against a seller furnishing specifications or
| 25 | | instructions for the accomplishment of such alteration, | 26 | | modification or
change when the injury is claimed to have |
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| 1 | | resulted from failure to
provide adequate specifications | 2 | | or instructions), and
| 3 | | (2) the action commenced within the applicable | 4 | | limitation period
and, in any event, within 10 years from | 5 | | the date such alteration,
modification or change was made, | 6 | | unless defendant expressly has
warranted or promised the | 7 | | product for a longer period and the action is
brought | 8 | | within that period, and
| 9 | | (3) when the injury or damage is claimed to have | 10 | | resulted from an
alteration, modification or change of a | 11 | | product unit, there is proof
that such alteration, | 12 | | modification or change had the effect of
introducing into | 13 | | the use of the product unit, by reason of defective
| 14 | | materials or workmanship, a hazard not existing prior to | 15 | | such
alteration, modification or change.
| 16 | | (d) Notwithstanding the provisions of subsection (b) and | 17 | | paragraph (2)
of subsection (c) if the injury complained of | 18 | | occurs within any of the
periods provided by subsection (b) and | 19 | | paragraph (2) of subsection (c), the
plaintiff may bring an | 20 | | action within 2 years after the date on which the
claimant | 21 | | knew, or through the use of reasonable diligence should have
| 22 | | known, of the existence of the personal injury, death or | 23 | | property damage,
but in no event shall such action be brought | 24 | | more than 8 years after the
date on which such personal injury, | 25 | | death or property damage occurred. In
any such case, if the | 26 | | person entitled to bring the action was, at the time
the |
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| 1 | | personal injury, death or property damage occurred, under the | 2 | | age of 18
years, or under a legal disability, then the period | 3 | | of limitations does not
begin to run until the person attains | 4 | | the age of 18 years, or the disability
is removed.
| 5 | | (e) Replacement of a component part of a product unit with | 6 | | a
substitute part having the same formula or design as the | 7 | | original part
shall not be deemed a sale, lease or delivery of | 8 | | possession or an
alteration, modification or change for the | 9 | | purpose of permitting
commencement of a product liability | 10 | | action based on any theory or
the
doctrine of
strict liability | 11 | | in tort to recover for injury or damage claimed to have
| 12 | | resulted from the formula or design of such product unit or of | 13 | | the
substitute part when such action would otherwise be barred | 14 | | according to
the provisions of subsection (b) of this Section.
| 15 | | (f) Nothing in this Section shall be construed to create a | 16 | | cause of
action or to affect the right of any person to seek | 17 | | and obtain indemnity
or contribution.
| 18 | | (g) The provisions of this Section 13-213 of this Act apply | 19 | | to any cause
of action accruing on or after January 1, 1979, | 20 | | involving any product which was
in or entered the stream of | 21 | | commerce prior to, on, or after January 1, 1979.
| 22 | | (h) This amendatory Act of 1995 applies to causes of action | 23 | | accruing
on or after its effective date.
| 24 | | (Source: P.A. 85-907; 86-1329; 89-7.)
| 25 | | (735 ILCS 5/13-214.3) (from Ch. 110, par. 13-214.3)
|
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| 1 | | Sec. 13-214.3. Attorneys.
| 2 | | (a) In this Section: "attorney" includes (i) an individual | 3 | | attorney,
together with his or her employees who are attorneys, | 4 | | (ii) a professional
partnership of attorneys, together with its | 5 | | employees, partners, and
members who are attorneys, and (iii) a | 6 | | professional service corporation of
attorneys, together with | 7 | | its employees, officers, and shareholders who are
attorneys; | 8 | | and "non-attorney employee" means a person who is not an
| 9 | | attorney but is employed by an attorney.
| 10 | | (b) An action for damages based on tort, contract, or | 11 | | otherwise (i)
against an attorney arising out of an act or | 12 | | omission in the performance of
professional services or (ii) | 13 | | against a non-attorney employee arising out
of an act or | 14 | | omission in the course of his or her employment by an attorney
| 15 | | to assist the attorney in performing professional services
must | 16 | | be commenced within 2 years from
the time the person bringing | 17 | | the action knew or reasonably should have
known of the injury | 18 | | for which damages are sought.
| 19 | | (c) Except as provided in subsection (d), an action | 20 | | described in
subsection (b) may not be commenced in any event | 21 | | more than 6 years after
the date on which the act or omission | 22 | | occurred.
| 23 | | (d) (Blank.)
When the injury caused by the act or omission | 24 | | does not
occur until
the death of the person for whom the | 25 | | professional services were rendered,
the action may be | 26 | | commenced within 2 years after the date of the person's
death |
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| 1 | | unless letters of office are issued or the person's will is | 2 | | admitted
to probate within that 2 year period, in which case | 3 | | the action must be
commenced within the time for filing claims | 4 | | against the estate or a
petition contesting the validity of the | 5 | | will of the deceased person,
whichever is later, as provided in | 6 | | the Probate Act of 1975.
| 7 | | (e) If the person entitled to bring the action is under the | 8 | | age of
majority or under other legal disability at the time the | 9 | | cause of action
accrues, the period of limitations shall not | 10 | | begin to run until majority is
attained or the disability is | 11 | | removed.
| 12 | | (f) The provisions of Public Act 86-1371 creating this | 13 | | Section apply
This Section applies to all causes of action | 14 | | accruing on or after
its effective date.
| 15 | | (g) This amendatory Act of 1995 applies to all actions | 16 | | filed on or after
its effective date. If, as a result of this | 17 | | amendatory Act of 1995, the action
is either barred or there | 18 | | remains less than 2 years to bring the action, then
the | 19 | | individual may bring the action within 2 years of the effective | 20 | | date of
this amendatory Act of 1995.
| 21 | | (Source: P.A. 86-1371; 89-7.)
| 22 | | (735 ILCS 5/13-217) (from Ch. 110, par. 13-217)
| 23 | | Sec. 13-217. Reversal or dismissal. In the actions | 24 | | specified in Article
XIII of this Act or any other act or | 25 | | contract where the time for commencing an
action is limited, if |
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| 1 | | judgment is entered for the plaintiff but reversed on
appeal, | 2 | | or if there is a verdict in favor of the plaintiff and, upon a | 3 | | motion
in arrest of judgment, the judgment is entered against | 4 | | the plaintiff, or the
action is voluntarily dismissed by the | 5 | | plaintiff, or the action is dismissed
for want of prosecution,
| 6 | | or the action is dismissed by a United States
District
Court | 7 | | for lack of jurisdiction, or the action is dismissed by a | 8 | | United States
District Court for improper venue, then, whether | 9 | | or not the time limitation for
bringing such action expires | 10 | | during the pendency of such action, the plaintiff,
his or her | 11 | | heirs, executors or administrators may commence a new
action | 12 | | within one year or within the remaining period of limitation,
| 13 | | whichever is greater, after such judgment is reversed or | 14 | | entered against
the plaintiff, or after the action is | 15 | | voluntarily dismissed by the
plaintiff, or the action is | 16 | | dismissed for want of prosecution, or the action
is dismissed | 17 | | by a United States District Court for lack of jurisdiction,
or | 18 | | the action is dismissed by a United States District Court for | 19 | | improper
venue. No action which is voluntarily dismissed by the | 20 | | plaintiff or
dismissed for want of prosecution by the court may | 21 | | be filed where the time for
commencing the action has expired.
| 22 | | This amendatory Act of 1995 applies to causes of action | 23 | | accruing on or
after
its effective date.
| 24 | | (Source: P.A. 87-1252.)
| 25 | | (735 ILCS 5/2-623 rep.) |
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| 1 | | (735 ILCS 5/2-624 rep.) | 2 | | (735 ILCS 5/2-1115.05 rep.) | 3 | | (735 ILCS 5/2-1115.1 rep.) | 4 | | (735 ILCS 5/2-1115.2 rep.) | 5 | | (735 ILCS 5/2-1706.5 rep.) | 6 | | (735 ILCS 5/Art. II Pt. 21 rep.) | 7 | | Section 25. The Code of Civil Procedure is amended by | 8 | | repealing Sections 2-623, 2-624, 2-1115.05, 2-1115.1, | 9 | | 2-1115.2, and 2-1706.5 and Part 21 of Article II.
| 10 | | Section 30. Sections 4 and 5 of the Joint Tortfeasor | 11 | | Contribution Act are re-enacted as follows:
| 12 | | (740 ILCS 100/4) (from Ch. 70, par. 304)
| 13 | | Sec. 4. Rights of Plaintiff Unaffected.
Except as provided | 14 | | in Section 3.5
of this Act, A plaintiff's right to recover
the | 15 | | full amount of his judgment from any one or more defendants | 16 | | subject
to liability in tort for the same injury to person or | 17 | | property, or for wrongful
death, is not affected by the | 18 | | provisions of this Act.
| 19 | | (Source: P.A. 81-601; 89-7.)
| 20 | | (740 ILCS 100/5) (from Ch. 70, par. 305)
| 21 | | Sec. 5. Enforcement.
Other than in actions for healing art | 22 | | malpractice, A
cause of action for contribution among joint | 23 | | tortfeasors is not required to
be asserted during the pendency |
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| 1 | | of litigation brought by a claimant and
may be asserted by a | 2 | | separate action before or after payment of a settlement
or | 3 | | judgment in favor of the claimant , or may be asserted by | 4 | | counterclaim
or by third-party complaint in a pending action.
| 5 | | This amendatory Act of 1995 applies to causes of action | 6 | | filed on or after
its effective date.
| 7 | | (Source: P.A. 81-601; 89-7.)
| 8 | | (740 ILCS 100/3.5 rep.)
| 9 | | Section 35.
Section 3.5 of the Joint Tortfeasor | 10 | | Contribution Act is repealed.
| 11 | | Section 40.
Sections 9 and 10 of the Mental Health and | 12 | | Developmental Disabilities
Confidentiality
Act are re-enacted | 13 | | as follows:
| 14 | | (740 ILCS 110/9) (from Ch. 91 1/2, par. 809)
| 15 | | Sec. 9. In the course of providing services and after the | 16 | | conclusion of the
provision of services, a therapist may | 17 | | disclose a record or communications
without consent to:
| 18 | | (1) the therapist's supervisor, a consulting | 19 | | therapist, members of a
staff team participating in the | 20 | | provision of services, a record custodian,
or a person | 21 | | acting under the supervision and control of the therapist;
| 22 | | (2) persons conducting a peer review of the services | 23 | | being provided;
|
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| 1 | | (3) the Institute for Juvenile Research and the | 2 | | Institute for the
Study of Developmental Disabilities;
| 3 | | (4) an attorney or advocate consulted by a therapist or | 4 | | agency which
provides services concerning the therapist's | 5 | | or agency's legal rights or
duties in relation to the | 6 | | recipient and the services being provided; and
| 7 | | (5) the Inspector General of the Department of Children | 8 | | and Family
Services when such records or communications are | 9 | | relevant to a pending
investigation authorized by Section | 10 | | 35.5 of the Children and Family Services
Act where:
| 11 | | (A) the recipient was either (i) a parent, foster | 12 | | parent, or caretaker
who is an alleged perpetrator of | 13 | | abuse or neglect or the subject of a
dependency | 14 | | investigation or (ii) a non-ward victim of alleged | 15 | | abuse or
neglect, and
| 16 | | (B) available information demonstrates that the | 17 | | mental health of the
recipient was or should have been | 18 | | an issue to the safety of the child.
| 19 | | In the course of providing services, a therapist may | 20 | | disclose a record or
communications without consent to any | 21 | | department, agency, institution or
facility which has custody | 22 | | of the recipient pursuant to State statute or any
court order | 23 | | of commitment.
| 24 | | Information may be disclosed under this Section only to the | 25 | | extent that
knowledge of the record or communications is | 26 | | essential to the purpose for
which disclosure is made and only |
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| 1 | | after the recipient is informed that such
disclosure may be | 2 | | made. A person to whom disclosure is made under this
Section | 3 | | shall not redisclose any information except as provided in this | 4 | | Act.
| 5 | | (Source: P.A. 86-955; 90-512, eff. 8-22-97.)
| 6 | | (740 ILCS 110/10) (from Ch. 91 1/2, par. 810)
| 7 | | Sec. 10. (a) Except as provided herein, in any civil, | 8 | | criminal,
administrative, or legislative proceeding, or in any | 9 | | proceeding preliminary
thereto, a recipient, and a therapist on | 10 | | behalf and in the interest of a
recipient, has the privilege to | 11 | | refuse to disclose and to prevent the
disclosure of the | 12 | | recipient's record or communications.
| 13 | | (1) Records and communications may be disclosed in a | 14 | | civil, criminal
or administrative proceeding in which the | 15 | | recipient introduces his mental
condition or any aspect of | 16 | | his services received for such condition as an
element of | 17 | | his claim or defense, if and only to the extent the court | 18 | | in
which the proceedings have been brought, or, in the case | 19 | | of an administrative
proceeding, the court to which an | 20 | | appeal or other action for review of an
administrative | 21 | | determination may be taken, finds, after in camera
| 22 | | examination of testimony or other evidence, that it is | 23 | | relevant, probative,
not unduly prejudicial or | 24 | | inflammatory, and otherwise clearly
admissible; that other | 25 | | satisfactory evidence is demonstrably unsatisfactory
as |
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| 1 | | evidence of the facts sought to be established by such | 2 | | evidence; and
that disclosure is more important to the | 3 | | interests of substantial justice
than protection from | 4 | | injury to the therapist-recipient relationship or to
the | 5 | | recipient or other whom disclosure is likely to harm. | 6 | | Except in a criminal
proceeding in which the recipient, who | 7 | | is accused in that proceeding, raises
the defense of | 8 | | insanity, no record or communication between a therapist
| 9 | | and a recipient shall be deemed relevant for purposes of | 10 | | this subsection,
except the fact of treatment, the cost of | 11 | | services and the ultimate
diagnosis unless the party | 12 | | seeking disclosure of the communication clearly
| 13 | | establishes in the trial court a compelling need for its | 14 | | production.
However, for purposes of this Act, in any | 15 | | action brought or defended under
the Illinois Marriage and | 16 | | Dissolution of Marriage Act, or in any action in
which pain | 17 | | and suffering is an element of the claim, mental condition | 18 | | shall
not be deemed to be introduced merely by making such | 19 | | claim and shall be
deemed to be introduced only if the | 20 | | recipient or a witness on his behalf
first testifies | 21 | | concerning the record or communication.
| 22 | | (2) Records or communications may be disclosed in a | 23 | | civil proceeding after
the recipient's death when the | 24 | | recipient's physical or mental condition
has been | 25 | | introduced as an element of a claim or defense by any party | 26 | | claiming
or defending through or as a beneficiary of the |
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| 1 | | recipient, provided the
court finds, after in camera | 2 | | examination of the evidence, that it is relevant,
| 3 | | probative, and otherwise clearly admissible; that other | 4 | | satisfactory evidence
is not available regarding the facts | 5 | | sought to be established by such evidence;
and that | 6 | | disclosure is more important to the interests of | 7 | | substantial justice
than protection from any injury which | 8 | | disclosure is likely to cause.
| 9 | | (3) In the event of a claim made or an action filed by | 10 | | a recipient, or,
following the recipient's death, by any | 11 | | party claiming as a beneficiary
of the recipient for injury | 12 | | caused in the course of providing services to such | 13 | | recipient, the therapist and other persons whose actions
| 14 | | are alleged
to have been the cause of injury may disclose | 15 | | pertinent records and
communications to an attorney or | 16 | | attorneys engaged to render advice about
and to provide | 17 | | representation in connection with such matter and to | 18 | | persons
working under the supervision of such attorney or | 19 | | attorneys, and may
testify as to such records or
| 20 | | communication in any administrative, judicial
or discovery | 21 | | proceeding for the purpose of preparing and presenting a
| 22 | | defense against such claim or action.
| 23 | | (4) Records and communications made to or by a | 24 | | therapist in the course
of examination ordered by a court | 25 | | for good cause shown may, if otherwise
relevant and | 26 | | admissible, be disclosed in a civil, criminal,
or |
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| 1 | | administrative proceeding in which the recipient is a party | 2 | | or in
appropriate pretrial proceedings, provided such | 3 | | court has found that the
recipient has been as adequately | 4 | | and as effectively as possible informed
before submitting | 5 | | to such examination that such records and communications
| 6 | | would not be considered confidential or privileged. Such | 7 | | records and
communications shall be admissible only as to | 8 | | issues involving the
recipient's physical or mental | 9 | | condition and only to the extent that these
are germane to | 10 | | such proceedings.
| 11 | | (5) Records and communications may be disclosed in a | 12 | | proceeding under
the Probate Act of 1975, to determine a | 13 | | recipient's competency or need for
guardianship, provided | 14 | | that the disclosure is made only with respect to that | 15 | | issue.
| 16 | | (6) Records and communications may be disclosed when | 17 | | such are made during
treatment which the recipient is | 18 | | ordered to undergo to render him fit to
stand trial on a | 19 | | criminal charge, provided that the disclosure is made only
| 20 | | with respect to the issue of fitness to stand trial.
| 21 | | (7) Records and communications of the recipient may be | 22 | | disclosed in any
civil or administrative proceeding | 23 | | involving the validity of or benefits
under a life, | 24 | | accident, health or disability insurance policy or | 25 | | certificate,
or Health Care Service Plan Contract, | 26 | | insuring the recipient, but only if
and to the extent that |
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| 1 | | the recipient's mental condition, or treatment or
services | 2 | | in connection therewith, is a material element of any claim | 3 | | or
defense of any party, provided that information sought | 4 | | or disclosed shall
not be redisclosed except in connection | 5 | | with the proceeding in which
disclosure is made.
| 6 | | (8) Records or communications may be disclosed when | 7 | | such are relevant
to a matter in issue in any action | 8 | | brought under this Act and proceedings
preliminary | 9 | | thereto, provided that any information so disclosed shall | 10 | | not
be utilized for any other purpose nor be redisclosed | 11 | | except in connection
with such action or preliminary | 12 | | proceedings.
| 13 | | (9) Records and communications of the recipient may be | 14 | | disclosed in
investigations of and trials for homicide when | 15 | | the disclosure relates directly
to the fact or immediate | 16 | | circumstances of the homicide.
| 17 | | (10) Records and communications of a deceased | 18 | | recipient may be
disclosed to a coroner conducting a | 19 | | preliminary investigation into the
recipient's death under | 20 | | Section 3-3013 of the Counties Code. However,
records and | 21 | | communications of the deceased recipient disclosed in an
| 22 | | investigation shall be limited solely to the deceased | 23 | | recipient's records
and communications relating to the | 24 | | factual circumstances of the incident
being investigated | 25 | | in a mental health facility.
| 26 | | (11) Records and communications of a recipient shall be |
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| 1 | | disclosed in a
proceeding
where a petition or motion is | 2 | | filed under the Juvenile Court Act of 1987 and
the | 3 | | recipient is
named as a parent, guardian, or legal | 4 | | custodian of a minor who is the subject
of a petition for | 5 | | wardship as
described in Section
2-3 of that Act or a minor | 6 | | who is the subject of a petition for wardship as
described | 7 | | in Section 2-4 of that
Act alleging the
minor is abused, | 8 | | neglected, or dependent or the recipient is named as a | 9 | | parent
of a child
who is the subject of
a petition, | 10 | | supplemental petition, or motion to appoint a guardian with | 11 | | the
power to consent to
adoption under Section 2-29 of the | 12 | | Juvenile Court Act
of 1987.
| 13 | | (12) Records and communications of a recipient may be
| 14 | | disclosed when disclosure is necessary to collect sums or | 15 | | receive
third party payment representing charges for | 16 | | mental health or
developmental disabilities services | 17 | | provided by a therapist or
agency to a recipient; however, | 18 | | disclosure shall be limited to
information needed to pursue | 19 | | collection, and the information so
disclosed may not be | 20 | | used for any other purposes nor may it be
redisclosed | 21 | | except in connection with collection activities.
Whenever | 22 | | records are disclosed pursuant to this subdivision (12), | 23 | | the
recipient of the records shall be advised in writing | 24 | | that any person who
discloses mental health records and | 25 | | communications in violation of this Act may
be subject to | 26 | | civil liability pursuant to Section 15 of this Act or to |
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| 1 | | criminal
penalties pursuant to Section 16 of this Act or | 2 | | both.
| 3 | | (b) Before a disclosure is made under subsection (a), any | 4 | | party to the
proceeding or any other interested person may | 5 | | request an in camera review
of the record or communications to | 6 | | be disclosed. The court or agency
conducting the proceeding may | 7 | | hold an in camera review on its own motion.
When, contrary to | 8 | | the express wish of the recipient, the therapist asserts
a | 9 | | privilege on behalf and in the interest of a recipient, the | 10 | | court may
require that the therapist, in an in camera hearing, | 11 | | establish that
disclosure is not in the best interest of the | 12 | | recipient. The court or
agency may prevent disclosure or limit | 13 | | disclosure to the extent that other
admissible evidence is | 14 | | sufficient to establish the facts in issue. The
court or agency | 15 | | may enter such orders as may be necessary in order to
protect | 16 | | the confidentiality, privacy, and safety of the recipient or of
| 17 | | other persons. Any order to disclose or to not disclose shall | 18 | | be
considered a final order for purposes of appeal and shall be | 19 | | subject to
interlocutory appeal.
| 20 | | (c) A recipient's records and communications may be | 21 | | disclosed to a
duly authorized committee, commission or | 22 | | subcommittee of the General
Assembly which possesses subpoena | 23 | | and hearing powers, upon a written
request approved by a | 24 | | majority vote of the committee, commission or
subcommittee | 25 | | members. The committee, commission or subcommittee may
request | 26 | | records only for the purposes of investigating or studying
|
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| 1 | | possible violations of recipient rights. The request shall | 2 | | state the
purpose for which disclosure is sought.
| 3 | | The facility shall notify the recipient, or his guardian, | 4 | | and therapist in
writing of any disclosure request under this | 5 | | subsection within 5 business
days after such request. Such | 6 | | notification shall also inform the
recipient, or guardian, and | 7 | | therapist of their right to object to the
disclosure within 10 | 8 | | business days after receipt of the notification and
shall | 9 | | include the name, address and telephone number of the
| 10 | | committee, commission or subcommittee member or staff person | 11 | | with whom an
objection shall be filed. If no objection has been | 12 | | filed within 15
business days after the request for disclosure, | 13 | | the facility shall disclose
the records and communications to | 14 | | the committee, commission or
subcommittee. If an objection has | 15 | | been filed within 15 business days after
the request for | 16 | | disclosure, the facility shall disclose the records and
| 17 | | communications only after the committee, commission or | 18 | | subcommittee has
permitted the recipient, guardian or | 19 | | therapist to present his objection in
person before it and has | 20 | | renewed its request for disclosure by a majority
vote of its | 21 | | members.
| 22 | | Disclosure under this subsection shall not occur until all | 23 | | personally
identifiable data of the recipient and provider are | 24 | | removed from the
records and communications. Disclosure under | 25 | | this subsection shall not
occur in any public proceeding.
| 26 | | (d) No party to any proceeding described under paragraphs |
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| 1 | | (1), (2),
(3), (4), (7), or (8) of subsection (a) of this | 2 | | Section, nor his or
her attorney, shall serve a subpoena | 3 | | seeking to obtain access to records or
communications under | 4 | | this Act unless the subpoena is accompanied by a
written order | 5 | | issued by a judge, authorizing the disclosure of the records
or | 6 | | the issuance of the subpoena. No such written order shall be | 7 | | issued without written notice of the motion to the recipient | 8 | | and the treatment provider. Prior to issuance of the order, | 9 | | each party or other person entitled to notice shall be | 10 | | permitted an opportunity to be heard pursuant to subsection (b) | 11 | | of this Section. No person shall comply with a subpoena for
| 12 | | records or communications under this Act, unless the subpoena | 13 | | is
accompanied by a written order authorizing the issuance of | 14 | | the subpoena or
the disclosure of the records. Each subpoena | 15 | | duces tecum issued by a court or administrative agency or | 16 | | served on any person pursuant to this subsection (d) shall | 17 | | include the following language: "No person shall comply with a | 18 | | subpoena for mental health records or communications pursuant | 19 | | to Section 10 of the Mental Health and Developmental | 20 | | Disabilities Confidentiality Act, 740 ILCS 110/10, unless the | 21 | | subpoena is accompanied by a written order that authorizes the | 22 | | issuance of the subpoena and the disclosure of records or | 23 | | communications."
| 24 | | (e) When a person has been transported by a peace officer | 25 | | to a mental
health facility, then upon the request of a peace | 26 | | officer, if the person is
allowed to leave the mental health |
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| 1 | | facility within 48 hours of arrival,
excluding Saturdays, | 2 | | Sundays, and holidays, the facility director shall notify
the | 3 | | local law enforcement authority prior to the release of the | 4 | | person. The
local law enforcement authority may re-disclose the | 5 | | information as necessary to
alert the appropriate enforcement | 6 | | or prosecuting authority.
| 7 | | (f) A recipient's records and communications shall be | 8 | | disclosed to the
Inspector General of the Department of Human | 9 | | Services within 10 business days
of a request by the Inspector | 10 | | General
(i) in the course of an investigation authorized by the | 11 | | Department of Human Services Act and applicable rule or (ii) | 12 | | during the course of an assessment authorized by the Abuse of | 13 | | Adults with Disabilities Intervention Act and applicable rule. | 14 | | The request
shall be
in writing and signed by the Inspector | 15 | | General or his or her designee. The
request shall state the | 16 | | purpose for which disclosure is sought. Any person who
| 17 | | knowingly and willfully refuses to comply with such a request | 18 | | is guilty of a
Class A misdemeanor. A recipient's records and | 19 | | communications shall also be disclosed pursuant to subsection | 20 | | (g-5) of Section 1-17 of the Department of Human Services Act | 21 | | in testimony at health care worker registry hearings or | 22 | | preliminary proceedings when such are relevant to the matter in | 23 | | issue, provided that any information so disclosed shall not be | 24 | | utilized for any other purpose nor be redisclosed except in | 25 | | connection with such action or preliminary proceedings.
| 26 | | (Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10; |
| | | SB1888 | - 56 - | LRB097 05170 AMC 45217 b |
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| 1 | | 96-1453, eff. 8-20-10.)
| 2 | | Section 45. Sections 2 and 3 of the Premises Liability Act | 3 | | are
re-enacted
as follows:
| 4 | | (740 ILCS 130/2) (from Ch. 80, par. 302)
| 5 | | Sec. 2. The distinction under the common law between | 6 | | invitees and licensees
as to the duty owed by an owner or | 7 | | occupier of any premises to such entrants
is abolished.
| 8 | | The duty owed to such entrants is that of reasonable care | 9 | | under the
circumstances
regarding the state of the premises or | 10 | | acts done or omitted on them.
The duty of reasonable care under | 11 | | the circumstances which an owner or
occupier
of land owes to | 12 | | such entrants does not include any of the following: a duty to
| 13 | | warn
of
or otherwise take reasonable steps to protect such | 14 | | entrants from
conditions on the
premises that are known to the | 15 | | entrant, are open and obvious, or can
reasonably be expected to | 16 | | be discovered by the entrant; a duty to warn of
latent defects | 17 | | or dangers or defects or dangers unknown to the owner or
| 18 | | occupier of the premises; a
duty to warn such entrants of any | 19 | | dangers resulting from misuse by the entrants
of the premises | 20 | | or anything affixed to or located on the premises; or a duty to
| 21 | | protect such entrants from their own misuse of the premises or | 22 | | anything affixed
to or located on the premises.
| 23 | | This amendatory Act of 1995 applies to causes of action | 24 | | accruing on or
after
its effective date.
|
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| 1 | | (Source: P.A. 83-1398; 89-7.)
| 2 | | (740 ILCS 130/3) (from Ch. 80, par. 303)
| 3 | | Sec. 3. Nothing herein
affects the law as regards any | 4 | | category of trespasser,
including the trespassing child | 5 | | entrant.
An owner or occupier of land owes no duty of care to | 6 | | an
adult trespasser
other than to refrain from willful and | 7 | | wanton conduct that would endanger the
safety of a known | 8 | | trespasser on the property from a condition of the property
or
| 9 | | an activity conducted by the owner or occupier on the property.
| 10 | | This amendatory Act of 1995 applies only to causes of | 11 | | action accruing on or
after its effective date.
| 12 | | (Source: P.A. 83-1398; 89-7.)
| 13 | | Section 50. Sections 1 and 2 of the Wrongful Death Act
are | 14 | | re-enacted as follows:
| 15 | | (740 ILCS 180/1) (from Ch. 70, par. 1)
| 16 | | Sec. 1. Whenever the death of a person shall be caused
by | 17 | | wrongful act, neglect or default, and the act, neglect or | 18 | | default is
such as would, if death had not ensued, have | 19 | | entitled the party injured to
maintain an action and recover | 20 | | damages in respect thereof, then and in
every such case the | 21 | | person who or company or corporation which would have
been | 22 | | liable if death had not ensued, shall be liable to an action | 23 | | for
damages, notwithstanding the death of the person injured, |
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| 1 | | and although the
death shall have been caused under such | 2 | | circumstances as amount in law to
felony. No action may be | 3 | | brought under this Act if the decedent had brought
a cause of | 4 | | action with respect to the same underlying incident or | 5 | | occurrence
which was settled or on which judgment was rendered.
| 6 | | This amendatory Act of 1995 applies to causes of action | 7 | | accruing on or
after
its effective date.
| 8 | | (Source: Laws 1853, p. 97; P.A. 89-7.)
| 9 | | (740 ILCS 180/2) (from Ch. 70, par. 2)
| 10 | | Sec. 2. Every such action shall be brought by and in the | 11 | | names of
the personal representatives of such deceased person, | 12 | | and, except as
otherwise hereinafter provided, the amount | 13 | | recovered in every such
action shall be for the exclusive | 14 | | benefit of the surviving spouse and
next of kin of such | 15 | | deceased person. In every such action the jury
may give such | 16 | | damages as they shall deem a fair and just compensation
with | 17 | | reference to the pecuniary
injuries resulting from such death, | 18 | | including damages for grief, sorrow, and mental suffering, to
| 19 | | the surviving spouse and next of kin of such deceased person.
| 20 | | The amount recovered in any such action shall be | 21 | | distributed by the
court in which the cause is heard or, in the | 22 | | case of an agreed
settlement, by the circuit court, to each of | 23 | | the surviving spouse and
next of kin of such deceased person in | 24 | | the proportion, as determined by
the court, that the percentage | 25 | | of dependency of each such person upon
the deceased person |
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| 1 | | bears to the sum of the percentages of dependency of
all such | 2 | | persons upon the deceased person.
| 3 | | Where the deceased person left no surviving spouse or next | 4 | | of kin
entitled to recovery, the damages shall, subject to the | 5 | | following
limitations inure, to the exclusive benefit of the | 6 | | following persons, or
any one or more of them:
| 7 | | (a) to the person or persons furnishing hospitalization or | 8 | | hospital
services in connection with the last illness or injury | 9 | | of the deceased
person, not exceeding $450;
| 10 | | (b) to the person or persons furnishing medical or surgical | 11 | | services
in connection with such last illness or injury, not | 12 | | exceeding $450;
| 13 | | (c) to the personal representatives, as such, for the costs | 14 | | and
expenses of administering the estate and prosecuting or | 15 | | compromising the
action, including a reasonable attorney's | 16 | | fee. In any such case the
measure of damages to be recovered | 17 | | shall be the total of the reasonable
value of such | 18 | | hospitalization or hospital service, medical and surgical
| 19 | | services, funeral expenses, and such costs and expenses of
| 20 | | administration, including attorney fees, not exceeding the | 21 | | foregoing
limitations for each class of such expenses and not | 22 | | exceeding $900 plus
a reasonable attorney's fee.
| 23 | | Every such action shall be commenced within 2 years after | 24 | | the death
of such person but an action against a defendant | 25 | | arising from a crime committed
by the defendant in whose name | 26 | | an escrow account was established under the
"Criminal Victims' |
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| 1 | | Escrow Account Act" shall be commenced within 2 years
after the | 2 | | establishment of such account. For the purposes of this Section
| 3 | | 2, next of kin includes
an adopting parent and an adopted | 4 | | child, and they shall be treated as a
natural parent and a | 5 | | natural child, respectively. However, if a person
entitled to | 6 | | recover benefits under this Act, is, at the time the cause
of | 7 | | action accrued, within the age of 18 years, he or she may cause | 8 | | such
action to be brought within 2 years after attainment of | 9 | | the age of 18.
| 10 | | In any such action to recover damages, it
shall not be a | 11 | | defense that the death was caused in whole or in part by
the | 12 | | contributory negligence of one or more of the beneficiaries on
| 13 | | behalf of whom the action is brought, but the amount of
damages | 14 | | given shall
be reduced in the following manner.
| 15 | | The trier of fact shall first determine the decedent's
| 16 | | contributory fault in accordance with Sections 2-1116 and | 17 | | 2-1107.1 of the Code
of Civil Procedure. Recovery of damages | 18 | | shall be barred or diminished
accordingly. The trier of fact | 19 | | shall then determine the contributory fault, if
any, of each | 20 | | beneficiary on behalf of whom the action was brought:
| 21 | | (1) Where the trier of fact finds that the contributory | 22 | | fault of a
beneficiary on whose behalf the action is | 23 | | brought is
not more than 50% of the proximate cause of the | 24 | | wrongful death of the
decedent, then the damages allowed to | 25 | | that beneficiary shall be
diminished in proportion to the
| 26 | | contributory fault attributed to that beneficiary. The |
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| 1 | | amount of the reduction
shall not be
payable by any | 2 | | defendant.
| 3 | | (2) Where the trier of fact finds that the contributory | 4 | | fault of a
beneficiary on whose behalf the action is | 5 | | brought is
more than 50% of the proximate cause of the | 6 | | wrongful death of the decedent,
then the beneficiary shall | 7 | | be barred from recovering damages and the amount of
damages | 8 | | which would have been payable to that beneficiary, but for | 9 | | the
beneficiary's contributory fault, shall not inure to | 10 | | the benefit of the
remaining beneficiaries and shall not be | 11 | | payable by any defendant.
| 12 | | The trial judge shall conduct a hearing to determine the | 13 | | degree of
dependency of each beneficiary upon the decedent. The | 14 | | trial judge shall
calculate the amount of damages to be awarded | 15 | | each beneficiary, taking into
account any reduction arising | 16 | | from either the decedent's or the beneficiary's
contributory | 17 | | fault.
| 18 | | This amendatory Act of the 91st General Assembly applies to | 19 | | all actions
pending
on or filed after the effective date of | 20 | | this amendatory Act.
| 21 | | This amendatory Act of the 95th General Assembly applies to | 22 | | causes of actions accruing on or after its effective date.
| 23 | | (Source: P.A. 95-3, eff. 5-31-07.)
| 24 | | (745 ILCS 10/Art. VIA heading rep.)
| 25 | | (745 ILCS 10/6A-101 rep.)
|
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| 1 | | (745 ILCS 10/6A-105 rep.)
| 2 | | Section 55. Article VIA of the Local Governmental and | 3 | | Governmental Employees
Tort Immunity
Act is repealed.
| 4 | | Section 60. Section 10b of the Consumer Fraud and Deceptive | 5 | | Business
Practices Act is re-enacted as follows:
| 6 | | (815 ILCS 505/10b) (from Ch. 121 1/2, par. 270b)
| 7 | | Sec. 10b. Nothing in this Act shall apply to any of the | 8 | | following:
| 9 | | (1) Actions or transactions specifically authorized by | 10 | | laws administered
by any regulatory body or officer acting | 11 | | under statutory authority of this
State or the United States.
| 12 | | (2) The provisions of "An act to protect trademark owners, | 13 | | distributors,
and the public against injurious and uneconomic | 14 | | practices in the
distribution of articles of standard quality | 15 | | under a trademark, brand or
name," approved July 8, 1935, as | 16 | | amended.
| 17 | | (3) Acts done by the publisher, owner, agent, or employee | 18 | | of a
newspaper, periodical or radio or television station in | 19 | | the publication or
dissemination of an advertisement, when the | 20 | | owner, agent or employee did
not have knowledge of the false, | 21 | | misleading or deceptive character of the
advertisement, did not | 22 | | prepare the advertisement, or did not have a direct
financial | 23 | | interest in the sale or distribution of the advertised product | 24 | | or
service.
|
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| 1 | | (4) The communication of any false, misleading or deceptive | 2 | | information,
provided by the seller of real estate located in | 3 | | Illinois, by a real estate
salesman or broker licensed under | 4 | | "The Real Estate Brokers License Act",
unless the salesman or | 5 | | broker knows of the false, misleading or deceptive
character of | 6 | | such information. This provision shall be effective as to any
| 7 | | communication, whenever occurring.
| 8 | | (5) (Blank).
This item (5)
| 9 | | (6) The communication of any false, misleading, or | 10 | | deceptive information by
an insurance producer, registered | 11 | | firm, or limited insurance representative,
as those terms are | 12 | | defined in the Illinois Insurance Code, or by an insurance
| 13 | | agency or brokerage house concerning the sale, placement, | 14 | | procurement, renewal,
binding, cancellation of, or terms of any | 15 | | type of insurance or any policy of
insurance unless the | 16 | | insurance producer has actual knowledge of
the false, | 17 | | misleading, or deceptive character of the information. This
| 18 | | provision shall be effective as to any communications, whenever | 19 | | occurring.
This item (6) applies to all causes of action that | 20 | | accrue on or after the
effective date of this amendatory Act of | 21 | | 1995.
| 22 | | (Source: P.A. 84-894; 89-152, eff. 1-1-96; revised 1-22-98.)
| 23 | | Section 65.
Section 5 of the Workers' Compensation Act is | 24 | | re-enacted as follows:
|
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| 1 | | (820 ILCS 305/5) (from Ch. 48, par. 138.5)
| 2 | | Sec. 5. (a) No common law or statutory right to recover | 3 | | damages from the
employer, his insurer, his broker, any service | 4 | | organization retained by the
employer, his insurer or his | 5 | | broker to provide safety service, advice or
recommendations for | 6 | | the employer or the agents or employees of any of them
for | 7 | | injury or death sustained by any employee while engaged in the | 8 | | line of
his duty as such employee, other than the compensation | 9 | | herein provided, is
available to any employee who is covered by | 10 | | the provisions of this Act, to
any one wholly or partially | 11 | | dependent upon him, the legal representatives
of his estate, or | 12 | | any one otherwise entitled to recover damages for such
injury.
| 13 | | However, in any action now pending or hereafter begun to | 14 | | enforce a
common law or statutory right to recover damages for | 15 | | negligently causing
the injury or death of any employee it is | 16 | | not necessary to allege in the
complaint that either the | 17 | | employee or the employer or both were not
governed by the | 18 | | provisions of this Act or of any similar Act in force in
this | 19 | | or any other State.
| 20 | | Any illegally employed minor or his legal representatives | 21 | | shall, except
as hereinafter provided, have the right within 6 | 22 | | months after the time of
injury or death, or within 6 months | 23 | | after the appointment of a legal representative,
whichever | 24 | | shall be later, to file with the Commission a rejection of his
| 25 | | right to the benefits under this Act, in which case such | 26 | | illegally employed
minor or his legal representatives shall |
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| 1 | | have the right to pursue his or
their common law or statutory | 2 | | remedies to recover damages for such injury or death.
| 3 | | No payment of compensation under this Act shall be made to | 4 | | an illegally
employed minor, or his legal representatives, | 5 | | unless such payment and the
waiver of his right to reject the
| 6 | | benefits of this Act has first
been approved by the Commission | 7 | | or any member thereof, and if such payment
and the waiver of | 8 | | his right of rejection
has been so approved such payment is a | 9 | | bar to a subsequent rejection of the
provisions of this Act.
| 10 | | (b) Where the injury or death for which compensation is | 11 | | payable under
this Act was caused under circumstances creating | 12 | | a legal liability for
damages on the part of some person other | 13 | | than his employer to pay damages,
then legal proceedings may be | 14 | | taken against such other person to recover
damages | 15 | | notwithstanding such employer's payment of or liability to pay
| 16 | | compensation under this Act. In such case, however, if the | 17 | | action against
such other person is brought by the injured | 18 | | employee or his personal
representative and judgment is | 19 | | obtained and paid, or settlement is made
with such other | 20 | | person, either with or without suit, then from the amount
| 21 | | received by such employee or personal representative there | 22 | | shall be paid to
the employer the amount of compensation paid | 23 | | or to be paid by him to such
employee or personal | 24 | | representative including amounts paid or to be paid
pursuant to | 25 | | paragraph (a) of Section 8 of this Act.
If the employee or | 26 | | personal representative brings an action against
another |
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| 1 | | person and the other person then brings an action for | 2 | | contribution
against the employer, the amount, if any, that | 3 | | shall be paid to the employer by
the
employee or personal | 4 | | representative pursuant to this Section shall be reduced
by an | 5 | | amount equal to the
amount found by the trier of fact to be the | 6 | | employer's pro rata share of the
common liability in the | 7 | | action.
| 8 | | Out of any reimbursement received by the employer pursuant | 9 | | to this
Section the employer shall pay his pro rata share of | 10 | | all costs and
reasonably necessary expenses in connection with | 11 | | such third-party claim,
action or suit and where the services | 12 | | of an attorney at law of the employee
or dependents have | 13 | | resulted in or substantially contributed to the
procurement by | 14 | | suit, settlement or otherwise of the proceeds out of which
the | 15 | | employer is reimbursed, then, in the absence of other | 16 | | agreement, the
employer shall pay such attorney 25% of the | 17 | | gross amount of such
reimbursement.
| 18 | | If the injured employee or his personal representative | 19 | | agrees to receive
compensation from the employer or accept from | 20 | | the employer any payment on
account of such compensation, or to | 21 | | institute proceedings to recover the
same, the employer may | 22 | | have or claim a lien upon any award, judgment or
fund out of | 23 | | which such employee might be compensated from such third party.
| 24 | | In such actions brought by the employee or his personal | 25 | | representative,
he shall forthwith notify his employer by | 26 | | personal service or registered
mail, of such fact and of the |
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| 1 | | name of the court in which the suit is
brought, filing proof | 2 | | thereof in the action. The employer may, at any time
thereafter | 3 | | join in the action upon his motion so that all orders of court
| 4 | | after hearing and judgment shall be made for his protection. No | 5 | | release or
settlement of claim for damages by reason of such | 6 | | injury or death, and no
satisfaction of judgment in such | 7 | | proceedings shall be valid without the
written consent of both | 8 | | employer and employee or his personal
representative, except in | 9 | | the case of the employers, such consent is not
required where | 10 | | the employer has been fully indemnified or protected by
Court | 11 | | order.
| 12 | | In the event the employee or his personal representative | 13 | | fails to
institute a proceeding against such third person at | 14 | | any time prior to 3
months before such action would be barred, | 15 | | the employer may in his own name
or in the name of the | 16 | | employee, or his personal representative, commence a
| 17 | | proceeding against such other person for the recovery of | 18 | | damages on account
of such injury or death to the employee, and | 19 | | out of any amount recovered
the employer shall pay over to the | 20 | | injured employee or his personal
representatives all sums | 21 | | collected from such other person by judgment or
otherwise in | 22 | | excess of the amount of such compensation paid or to be paid
| 23 | | under this Act, including amounts paid or to be paid pursuant | 24 | | to paragraph
(a) of Section 8 of this Act, and costs, | 25 | | attorney's fees and reasonable
expenses as may be incurred by | 26 | | such employer in making such collection or
in enforcing such |
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| 1 | | liability.
| 2 | | This amendatory Act of 1995 applies to causes of action | 3 | | accruing on or
after
its effective date.
| 4 | | (Source: P.A. 79-79; 89-7.)
| 5 | | Section 70.
Section 5 of the Workers' Occupational | 6 | | Diseases Act is re-enacted as follows:
| 7 | | (820 ILCS 310/5) (from Ch. 48, par. 172.40)
| 8 | | Sec. 5.
(a) There is no common law or statutory right to | 9 | | recover
compensation or damages from the employer, his insurer, | 10 | | his broker, any
service organization retained by the employer, | 11 | | his insurer or his broker
to provide safety service, advice or | 12 | | recommendations for the employer or
the agents or employees of | 13 | | any of them for or on account of any injury
to health, disease, | 14 | | or death therefrom, other than for the compensation
herein | 15 | | provided or for damages as provided in Section 3 of this Act.
| 16 | | This Section shall not affect any right to compensation under | 17 | | the
"Workers' Compensation Act".
| 18 | | No compensation is payable under this Act for any condition | 19 | | of
physical or mental ill-being, disability, disablement, or | 20 | | death for
which compensation is recoverable on account of | 21 | | accidental injury under
the "Workers' Compensation Act".
| 22 | | (b) Where the disablement or death for which compensation | 23 | | is payable
under this Act was caused under circumstances | 24 | | creating a legal liability
for damages on the part of some |
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| 1 | | person other than his employer to pay
damages, then legal | 2 | | proceedings may be taken against such other person
to recover | 3 | | damages notwithstanding such employer's payment of or
| 4 | | liability to pay compensation under this Act. In such case, | 5 | | however, if
the action against such other person is brought by | 6 | | the disabled employee
or his personal representative and | 7 | | judgment is obtained and paid or
settlement is made with such | 8 | | other person, either with or without suit,
then from the amount | 9 | | received by such employee or personal
representative there | 10 | | shall be paid to the employer the amount of
compensation paid | 11 | | or to be paid by him to such employee or personal
| 12 | | representative, including amounts paid or to be paid pursuant | 13 | | to
paragraph (a) of Section 8 of the Workers' Compensation Act | 14 | | as required under
Section 7 of this Act.
If the employee or | 15 | | personal representative brings an action against
another | 16 | | person and the other person then brings an action for | 17 | | contribution
against the employer, the amount, if any, that | 18 | | shall be paid to the employer by
the
employee or personal | 19 | | representative pursuant to this Section shall be reduced
by an | 20 | | amount equal to the
amount found by the trier of fact to be the | 21 | | employer's pro rata share of the
common liability in the | 22 | | action.
| 23 | | Out of any reimbursement received by the employer, pursuant | 24 | | to this
Section the employer shall pay his pro rata share of | 25 | | all costs and
reasonably necessary expenses in connection with | 26 | | such third party claim,
action or suit, and where the services |
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| 1 | | of an attorney at law of the
employee or dependents have | 2 | | resulted in or substantially contributed to
the procurement by | 3 | | suit, settlement or otherwise of the proceeds out of
which the | 4 | | employer is reimbursed, then, in the absence of other
| 5 | | agreement, the employer shall pay such attorney 25% of the | 6 | | gross amount
of such reimbursement.
| 7 | | If the disabled employee or his personal representative | 8 | | agrees to
receive compensation from the employer or accept from | 9 | | the employer any
payment on account of such compensation, or to | 10 | | institute proceedings to
recover the same, the employer may | 11 | | have or claim a lien upon any award,
judgment or fund out of | 12 | | which such employee might be compensated from
such third party.
| 13 | | In such actions brought by the employee or his personal
| 14 | | representative, he shall forthwith notify his employer by | 15 | | personal
service or registered mail, of such fact and of the | 16 | | name of the court in
which the suit is brought, filing proof | 17 | | thereof in the action. The
employer may, at any time thereafter | 18 | | join in the action upon his motion
so that all orders of court | 19 | | after hearing and judgment shall be made for
his protection. No | 20 | | release or settlement of claim for damages by reason
of such | 21 | | disability or death, and no satisfaction of judgment in such
| 22 | | proceedings, are valid without the written consent of both | 23 | | employer and
employee or his personal representative, except in | 24 | | the case of the
employers, such consent is not required where | 25 | | the employer has been
fully indemnified or protected by court | 26 | | order.
|
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| 1 | | In the event the employee or his personal representative | 2 | | fails to
institute a proceeding against such third person at | 3 | | any time prior to 3
months before such action would be barred | 4 | | at law the employer may in his
own name, or in the name of the | 5 | | employee or his personal representative,
commence a proceeding | 6 | | against such other person for the recovery of
damages on | 7 | | account of such disability or death to the employee, and out
of | 8 | | any amount recovered the employer shall pay over to the injured
| 9 | | employee or his personal representative all sums collected from | 10 | | such
other person by judgment or otherwise in excess of the | 11 | | amount of such
compensation paid or to be paid under this Act, | 12 | | including amounts paid
or to be paid pursuant to paragraph (a) | 13 | | of Section 8 of the Workers'
Compensation Act as required by | 14 | | Section 7 of this Act, and
costs, attorney's fees and | 15 | | reasonable expenses as may be incurred by
such employer in | 16 | | making such collection or in enforcing such liability.
| 17 | | This amendatory Act of 1995 applies to causes of action | 18 | | accruing on or
after
its effective date.
| 19 | | (Source: P.A. 81-992; 89-7.)
| 20 | | Section 99. Effective date. This Act takes effect upon | 21 | | becoming law. | | | | SB1888 | - 72 - | LRB097 05170 AMC 45217 b |
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| 1 | |
INDEX
| 2 | |
Statutes amended in order of appearance
| | 3 | | 430 ILCS 105/Act title | | | 4 | | 430 ILCS 105/0.01 | from Ch. 121, par. 314.01 | | 5 | | 430 ILCS 105/1 | from Ch. 121, par. 314.1 | | 6 | | 430 ILCS 105/2 | from Ch. 121, par. 314.2 | | 7 | | 430 ILCS 105/3 | from Ch. 121, par. 314.3 | | 8 | | 430 ILCS 105/4 | from Ch. 121, par. 314.4 | | 9 | | 430 ILCS 105/5 | from Ch. 121, par. 314.5 | | 10 | | 430 ILCS 105/6 | from Ch. 121, par. 314.6 | | 11 | | 430 ILCS 105/7 | from Ch. 121, par. 314.7 | | 12 | | 430 ILCS 105/8 | from Ch. 121, par. 314.8 | | 13 | | 710 ILCS 45/Act rep. | | | 14 | | 730 ILCS 5/5-5-7 | from Ch. 38, par. 1005-5-7 | | 15 | | 735 ILCS 5/2-402 | from Ch. 110, par. 2-402 | | 16 | | 735 ILCS 5/2-604.1 | from Ch. 110, par. 2-604.1 | | 17 | | 735 ILCS 5/2-621 | from Ch. 110, par. 2-621 | | 18 | | 735 ILCS 5/2-1003 | from Ch. 110, par. 2-1003 | | 19 | | 735 ILCS 5/2-1107.1 | from Ch. 110, par. 2-1107.1 | | 20 | | 735 ILCS 5/2-1109 | from Ch. 110, par. 2-1109 | | 21 | | 735 ILCS 5/2-1116 | from Ch. 110, par. 2-1116 | | 22 | | 735 ILCS 5/2-1117 | from Ch. 110, par. 2-1117 | | 23 | | 735 ILCS 5/2-1118 | | | 24 | | 735 ILCS 5/2-1205.1 | from Ch. 110, par. 2-1205.1 | | 25 | | 735 ILCS 5/2-1702 | from Ch. 110, par. 2-1702 | |
| | | SB1888 | - 73 - | LRB097 05170 AMC 45217 b |
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| 1 | | 735 ILCS 5/8-802 | from Ch. 110, par. 8-802 | | 2 | | 735 ILCS 5/8-2001 | from Ch. 110, par. 8-2001 | | 3 | | 735 ILCS 5/8-2501 | from Ch. 110, par. 8-2501 | | 4 | | 735 ILCS 5/13-213 | from Ch. 110, par. 13-213 | | 5 | | 735 ILCS 5/13-214.3 | from Ch. 110, par. 13-214.3 | | 6 | | 735 ILCS 5/13-217 | from Ch. 110, par. 13-217 | | 7 | | 735 ILCS 5/2-623 rep. | | | 8 | | 735 ILCS 5/2-624 rep. | | | 9 | | 735 ILCS 5/2-1115.05 rep. | | | 10 | | 735 ILCS 5/2-1115.1 rep. | | | 11 | | 735 ILCS 5/2-1115.2 rep. | | | 12 | | 735 ILCS 5/2-1706.5 rep. | | | 13 | | 735 ILCS 5/Art. II Pt. 21 | 14 | | rep. | | | 15 | | 740 ILCS 100/4 | from Ch. 70, par. 304 | | 16 | | 740 ILCS 100/5 | from Ch. 70, par. 305 | | 17 | | 740 ILCS 100/3.5 rep. | | | 18 | | 740 ILCS 110/9 | from Ch. 91 1/2, par. 809 | | 19 | | 740 ILCS 110/10 | from Ch. 91 1/2, par. 810 | | 20 | | 740 ILCS 130/2 | from Ch. 80, par. 302 | | 21 | | 740 ILCS 130/3 | from Ch. 80, par. 303 | | 22 | | 740 ILCS 180/1 | from Ch. 70, par. 1 | | 23 | | 740 ILCS 180/2 | from Ch. 70, par. 2 | | 24 | | 745 ILCS 10/Art. VIA | 25 | | heading rep. | | | 26 | | 745 ILCS 10/6A-101 rep. | | |
| | | SB1888 | - 74 - | LRB097 05170 AMC 45217 b |
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| 1 | | 745 ILCS 10/6A-105 rep. | | | 2 | | 815 ILCS 505/10b | from Ch. 121 1/2, par. 270b | | 3 | | 820 ILCS 305/5 | from Ch. 48, par. 138.5 | | 4 | | 820 ILCS 310/5 | from Ch. 48, par. 172.40 |
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