Joseph Falk


This Comment reviews the history of legislation capping damages stemming from medical malpractice claims in Illinois, and ultimately proposes a new piece of damage cap legislation that would evade the Illinois Supreme Court's concerns in striking down such legislation on three separate occasions. In 1976, the Illinois Supreme Court first addressed the constitutionality of legislation capping recoverable damages from medical malpractice claims in the case Wright v. Central Du Page Hospital Ass'n. The Court struck down the legislation, holding that the cap was entirely arbitrary and, therefore, violative of the Illinois Constitution as a special law. Subsequent to Wright, the General Assembly enacted damage cap legislation on two separate occasions. The most recent occurrence was in 2004. Both pieces of legislation were struck down as unconstitutional. This comment engages in a general discussion of the underlying purpose of damage caps, and reviews the efficacy of non-economic medical malpractice damage cap legislation in alternative jurisdictions with active caps. It then proposes a piece of legislation that would pass constitutional muster in the Illinois judiciary without compromising the General Assembly’s goals in enacting damage cap legislation. Next, the Comment explores the applicability of bifurcated proceedings to the revised legislation, wherein issues of liability and damages are tried separately in multi-phased litigation. It concludes with a discussion of the impact of the proposed legislation, including its ancillary potential to promote judicial economy.