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Last Thursday, February 4, 2010, the Illinois Supreme Court declared the Illinois medical malpractice law unconstitutional because it unfairly and unjustly took away an injured person’s right to have a jury determine the extent of his or her pain and suffering. The high court in Illinois decided that the law passed by the legislature violated the Illinois State Constitution’s separation of powers clause by overreaching into the deliberations of juries and the decisions of judges.

Separation of powers? Sounds familiar.

The Michigan Constitution (PDF) reads:

Section 2. The powers of government are divided into three branches; legislative, executive and judicial. No person belonging to one department shall exercise
the powers properly belonging to another, except in the cases
expressly provided in this constitution.

Guess what, it also expressly talks about a jury trial.

The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil cases tried by 12 jurors a verdict shall be received when 10 jurors agree.

What kind of jury determinations are we talking about here? Well, in this case, the jury will be able to decide what a child’s pain and suffering is worth when that child was injured and suffered irreversible brain damage due to medical negligence and no fault of her own. That’s the type of questions our nation has always left in the hands of jurors, who take in all the evidence at trial. It’s not the decision of a distant legislator who got big time donations from hospitals and insurance companies. Michigan’s Supreme Court should take notice of the logic and reason utilized by the Illinois Supreme Court. That’s the kind of justice our nation needs.

If it can be unconstitutional in Illinois, why can’t it be unconsitutional in Michigan? We’re only separated by a lake.


  1. Gravatar for Jim O'Hare AIC AIS VP med mal claims
    Jim O'Hare AIC AIS VP med mal claims

    Many states have found caps, for just the pain and suffering cause of action, as constitutional. What could be cleaner and more pure than Illinois politics and cap discussions!!!

    How do you measure pain exactly? Do we use a scale or a ruler? A childs pain! Who wants to see a child suffer? Awards for P&S are based on emotion, subjectively, all other causes or action are objective. Is this not a colossal difference?

    I appreciate your attempts to persuade, but you leave out important considerations. A "jury of peers" is different than a jury. A lay jury can get the thug cracking the old lady on the head and running off with her wallet case. Not so much with the subtleties of antibiotic interactions and sensativities with bacterial infections.

    Docs never get them. I am not suggesting a jury of docs, maybe a college degree requirement? You want the jury to understand the case, i do and that has the element of fairness.

    regards Jim O'Hare

  2. Gravatar for Devon Glass


    I've read your comments, and the dozens of other comments you've left at other sites on the subject of medical malpractice injury claims. From what I can see, you have been adjusting claims for a long time, but I don't think this gives you the insight you might think it does.

    You say that some states have found the use of caps constitutional. I guess this means to you every state should find them constitutional. But that's not what it means at all. There used to be laws on the books in some states, Virginia for instance, making it was illegal for couples of different races to marry. Some other states did not have these laws on the books, but by your logic the fact that some states allowed this to be "legal" means that all states should have it be legal. Unfortunately for you, the United States Supreme Court disagreed with such logic.

    The fact is, some states have decided it is unconstitutional to put limits on the amount of money an individual can recover for their pain and suffering. This pain and suffering is difficult to quantify, I agree, but it is pain and suffering that is the result of someone else's fault. This pain and suffering is supposed to help make that person whole after suffering an injury caused by someone else, who are you to say what amount is too much? If someone lost the use of their legs for the rest of their life, do you honestly believe $250,000 (inflation adjusted this year to $408,200) is sufficient to compensate that person?

    You ask rhetorically how pain can be measured, and the point is that it cannot be measured. That is why a person has the opportunity to go before a jury and tell his or her story, and the jury gets to decide whether that person is being sincere or not, and the jury decides what level of compensation the person deserves, if any. The jury is not aware of the caps that exist, so they base their award on what they hear from the plaintiff, nothing else. If a jury determines an award, why should the law prohibit an award in accordance with the juries determination? How can we entrust the jury to determine fault but not to determine damages? It begs the question of why we have a jury system at all if we cannot trust them to make sound decisions. You apparently don't trust a jury to make the decision you would agree with, so you take away their ability to make decisions contrary to your opinion. How is that fair?

    As for a jury of peers, doctors are not the only specialty that would request such preferential jurors if it were allowed. This would create separate types of justice for people based upon who did the harm. What doctor would willingly a) sit on a jury and then b) determine another doctor was at fault? That would make no sense. Furthermore, one of the best aspects of the American civil justice system is that everyone is treated the same no matter what your background or education. Doctors should not get preferential treatment any more than lawyers should if they are sued. Why do you think doctors are so special?

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