Two weeks ago, we wrote a blog post giving an overview of medical malpractice in Illinois. As part of that, we mentioned two past efforts by the Illinois General Assembly to impose damages caps in medical malpractice lawsuits. The Illinois courts struck both of those efforts down, meaning that Illinois has no damage caps in medical malpractice lawsuits currently.

That’s an important fact about Illinois law, because it makes us a prime target for a new federal effort at medical malpractice reform, the Protecting Access to Care Act of 2017 (PACA), H.R. 1215. PACA passed the U.S. House of Representatives last month, and is currently pending in the Senate. Here are three ways PACA would change medical malpractice in Illinois if enacted:

1. What law applies could depend on how the plaintiff paid for medical treatment.

PACA technically would only apply to medical malpractice claims in which coverage was provided “in whole or in part via a Federal program, subsidy or tax benefit.” It would apply regardless of whether a claim was filed in state court, federal court, or through some process of alternative dispute resolution.

So, PACA would definitely apply to claims by individuals covered by Medicare, Medicaid, or the VA, to name a few. If its application is that limited, then there would be two separate kinds of medical malpractice claims: those involving federal coverage, which would be governed by PACA, and all others, which would be governed by preexisting state law.

But its application might not be that limited. It is worded in such a way that courts will have to interpret the full scope of the law. Until they do so, many plaintiffs could only guess whether their case is governed by PACA or Illinois law.

2. The statute of limitations would be shortened.

As we discussed in our last post, Illinois generally gives plaintiffs two years to file a medical malpractice lawsuit. PACA would create its own statute of limitations, and then say that whichever is shorter between the state and federal statute would apply. PACA’s limitations period ends on the earliest of three dates:

• One year after a person discovers, or through the use of reasonable diligence should have discovered, the injury;
• Three years after the date the injury was caused; or
• Three years after the date when the medical treatment during which the injury was caused is completed.

For example, the statute of limitations in Illinois is normally two years after the plaintiff discovers (or should have discovered) an injury caused by medical malpractice. Under PACA, that would be cut to one year.

3. Noneconomic damages would be limited to $250,000.

PACA divides total damages into two categories: economic and noneconomic. Noneconomic damages include things like pain and suffering, and commonly make up the bulk of medical malpractice recoveries. But under PACA, they would be limited to only $250,000 in Illinois.

PACA does allow states to raise or lower that cap on noneconomic damages; the only thing they can’t do is have no cap. That presents an issue for us here in Illinois, because the Supreme Court has consistently held that the General Assembly lacks the authority to cap damages. So, if PACA passes, the General Assembly might not be able to pass higher caps.

Conclusion

If passed, PACA would dramatically change medical-malpractice law in Illinois and throughout the country. It could apply different laws to different plaintiffs, and would reduce the time for filing a claim and cap noneconomic damages. Fortunately, it isn’t the law yet, but it has passed one house of Congress, and President Trump has said he would sign it if the Senate passes it. Only time will tell if he’ll have the chance.