(735 ILCS 5/Art. II Pt. 17 heading)
Part 17.
Healing Art Malpractice
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(735 ILCS 5/2-1701) (from Ch. 110, par. 2-1701)
Sec. 2-1701.
Application.
Subject to the provisions of Section
2-1705, in all medical malpractice actions the provisions of this Act shall
be applicable.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1702) (from Ch. 110, par. 2-1702)
(Text of Section WITH the changes made by P.A. 89-7, which has been held
unconstitutional)
Sec. 2-1702.
Economic/Non-Economic Loss.
As used in this Part, "economic
loss" and "non-economic loss" are defined as in Section 2-1115.2.
(Source: P.A. 89-7, eff. 3-9-95 .)
(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held
unconstitutional)
Sec. 2-1702.
Economic/Non-Economic Loss.
As used in this Part :
(a) "Economic loss" means all pecuniary harm for which damages
are recoverable.
(b) "Non-economic loss" means loss of consortium and all nonpecuniary
harm for which damages are recoverable, including, without limitation,
damages for pain and suffering, inconvenience, disfigurement, and
physical impairment.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1703) (from Ch. 110, par. 2-1703)
Sec. 2-1703.
Past/Future Damages.
As used in this Part:
(a) "Past damages" means damages that have accrued when the damages
findings are made.
(b) "Future damages" includes all damages which the trier of fact finds
will accrue after the damages findings are made, including, without
limitation, damages for future medical or health treatment, care or
custody, loss of future earnings, loss of bodily function, future pain and
suffering, and future physical impairment and inconvenience.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1704) (from Ch. 110, par. 2-1704)
Sec. 2-1704.
Medical Malpractice Action.
As used in this Part,
"medical malpractice action" means any action, whether in tort, contract or
otherwise, in which the plaintiff seeks damages for injuries or death by
reason of medical, hospital, or other healing art malpractice.
The term "healing art" shall not include care and
treatment by spiritual means through prayer in accord with the tenets and
practices of a recognized church or religious denomination.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1704.5)
Sec. 2-1704.5. (Repealed).
(Source: P.A. 94-677, eff. 8-25-05. Repealed by P.A. 97-1145, eff. 1-18-13.)
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(735 ILCS 5/2-1705) (from Ch. 110, par. 2-1705)
Sec. 2-1705.
Election for Periodic Payment.
(a) In order to
invoke the provisions of Section 2-1706 through 2-1718, a party to
a medical malpractice action must make an effective election in
accordance with this Section.
(b) The election must be made by motion not less than 60 days before
commencement of a trial involving issues of
future damages unless leave of court is obtained. Any objection to the
election must be made not more than 30 days after the election.
(c) An election is effective if:
(1) all parties have consented; or
(2) no timely objection is filed by any party; or
(3) a timely objection is filed, but:
(i) the electing party is a plaintiff and shows there is a good faith
claim that future damages will exceed $250,000, or
(ii) the electing party is responding to a claim for future damages in
excess of $250,000 and shows both that security in the amount of the claim
for past and future damages or $500,000, whichever is less, can be provided
and that future damages are likely to accrue over more than one year.
(d) If an effective election is made prior to the commencement of trial, all
actions, including third-party claims, counterclaims, and actions
consolidated for trial, must be tried under Sections 2-1706 through 2-1718,
unless the court finds that the purposes of these Sections would not be
served by doing so or in the interest of justice a separate trial or
proceeding should be held on some or all of the claims that are not subject
of the election.
(e) An effective election can be withdrawn only by consent of all
parties to the claim to which the election relates.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1706) (from Ch. 110, par. 2-1706)
Sec. 2-1706.
Special findings required.
(a) If liability is found in
a trial under Sections 2-1706 through 2-1718, the trier of fact, in addition
to other appropriate findings, shall make separate findings for each plaintiff
specifying the amount of:
(1) any past damages; and
(2) any future damages for each of the following types:
(i) medical and other costs of health care;
(ii) other economic loss; and
(iii) non-economic loss.
(b) If the trier of fact finds that certain future damages will accrue
for a definite number of years, the amount of periodic payments for those
damages must be calculated based on that definite number of years. Payment
for such damages shall be made periodically for that number of years.
(c) If the trier of fact finds that certain future damages will accrue for
the remainder of the plaintiff's life, the trier of fact shall make a
specific finding specifying the remaining life expectancy of the plaintiff
and the amount of periodic payments for those damages must be calculated
based on the remaining life expectancy of the plaintiff. Payment for such
damages shall be made periodically and shall continue until the plaintiff's
remaining life expectancy is reached or the plaintiff dies, whichever is later.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1706.5)
Sec. 2-1706.5. (Repealed).
(Source: P.A. 94-677, eff. 8-25-05. Repealed by P.A. 97-1145, eff. 1-18-13.)
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(735 ILCS 5/2-1707) (from Ch. 110, par. 2-1707)
Sec. 2-1707.
Calculation of future damages.
(a) In all trials under
Sections 2-1706 through 2-1718, future damages must be calculated by the
trier of fact without discounting future damages to present value.
(b) In all jury trials in which special damages findings are required
under Sections 2-1706 through 2-1718, the jury must be informed that with
respect to future damages:
(1) the law takes into account the fact that those payments may be made
in the future rather than in one lump sum now; and
(2) the jury will make their findings on the assumption that appropriate
adjustments for the present value of those payments will be made later and
that the jury should not discount those payments to present value.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1708) (from Ch. 110, par. 2-1708)
Sec. 2-1708.
Basis for determining judgment to be entered.
In order to
determine what judgment is to be entered on a verdict requiring findings
of special damages under Sections 2-1706 through 2-1718, the court shall
proceed as follows:
(1) The court shall apply to the findings of past and future damages any
applicable rules of law, including set-offs, comparative fault, additurs,
and remittiturs, in calculating the respective amounts of past and future
damages each plaintiff is entitled to recover and each party is obligated
to pay.
(2) The court shall calculate the equivalent lump sum value of future
damages in accordance with Section 2-1712.
(3) Any contingent attorneys' fees shall be calculated based on the sum
of the past damages recoverable and equivalent lump sum value of future
damages recoverable. Any judgment for periodic installments must specify
payment of attorneys' fees and litigation expenses in lump sum, separate
from the periodic installments payable to the plaintiff, pursuant to an
agreement entered into between the plaintiff and his or her attorney.
(4) Upon election of a subrogee, including an employer or insurer who
provides workers' compensation, filed within 10 days after verdict, any
part of future damages allocable to reimbursement of payments previously
made by the subrogee is payable in equivalent lump sum to the subrogee.
(5) The court shall determine the amount of future damages to be awarded
in equivalent lump sum. This amount shall be that part of the equivalent
lump sum value of future damages which does not exceed $250,000.
In the event that the equivalent lump sum value of the total amount
of future damages recoverable is $500,000 or more, the court may, upon a
showing by the plaintiff that he will incur greater expenses for future
damages immediately after judgment in order to secure appropriate
necessities including, but not limited to, equipment, supplies, medication,
residence or other items, allow additional amounts of future damages to be
awarded in equivalent lump sum value so that the total amount awarded in
equivalent lump sum is sufficient to secure the aforementioned items, but in
no event shall any increase under this sentence cause more than 50% of the
equivalent lump sum value of total future damages recoverable to be
awarded in lump sum. The amount of future damages awarded in equivalent
lump sum shall be added to the total amount of past damages recoverable and
this total shall be known as the present award. The periodic award shall
consist of the total amount of future damages without reduction to
an equivalent lump sum value, reduced in the proportion that the equivalent
lump sum value of the amount of future damages included in the lump sum
present award bears to the equivalent lump sum value of the total amount of
future damages.
(6) Any attorneys' fees and litigation expenses shall be allocated
proportionately between the amount of the present award and the amount of
the periodic award.
(7) The court shall enter judgment in lump sum for the present award
including that portion of attorneys' fees and litigation expenses allocable
to the present award,
for amounts payable under subsection (4), and for that portion of attorneys'
fees and litigation expenses allocable to the periodic award.
(8) The court shall enter judgment in accordance with Section 2-1709 for
the payment in installments of the periodic award, less that part of
future damages allocable to reimbursement of payments previously made by a
subrogee under subsection (4), and less that portion of attorney's fees and
litigation expenses allocable to the periodic award.
(9) In an action for wrongful death, the calculation of all amounts,
values, and awards under this Section must be based on the total recovery
for all beneficiaries of the action.
(10) Upon petition of a party before entry of judgment and upon a
finding of incapacity to post the required security, the court, at the
election of the plaintiff or beneficiaries in an action for wrongful
death, shall:
(i) enter a judgment in accordance with subsections (7) and (8); or
(ii) determine the equivalent lump sum value under Section 2-1712 in the
amount otherwise to be paid in periodic installments under subsection (8)
and enter judgment for that equivalent lump sum value and for those amounts
payable under subsection (7).
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1709) (from Ch. 110, par. 2-1709)
Sec. 2-1709.
Payment of periodic installment obligations.
(a) Except in
those cases specified in this Part concerning the death of the person
receiving periodic payments, the amount of periodic payments may not be
adjusted or otherwise modified following final judgment.
(b) Unless the court directs otherwise or the parties otherwise agree,
payments must be scheduled at one-month intervals. Payments for damages
accruing during the scheduled intervals are due at the beginning of the
intervals.
(c) If the trier of fact has found that different elements of future
damages will accrue over different periods of time the court shall direct
that amounts to be periodically paid in the future be proportionately
divided into the same periods of time.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1710) (from Ch. 110, par. 2-1710)
Sec. 2-1710.
Form of security.
(a) Security authorized or required for
payment of a judgment for periodic installments entered in accordance with
this Section must be in one or more of the following forms and approved as
to quality by the court:
(1) bond executed by a qualified insurer;
(2) annuity contract executed by a qualified insurer;
(3) evidence of applicable and collectible liability insurance with one
or more qualified insurers;
(4) an agreement by one or more qualified insurers to guarantee payment
of the judgment; or
(5) any other satisfactory form of security.
(b) Security complying with this Section serves also as a required
supersedeas bond.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1711) (from Ch. 110, par. 2-1711)
Sec. 2-1711.
Posting and maintaining security.
(a) If the court enters
a judgment for period installments, each party liable for all or a portion
of the judgment, unless found to be incapable of doing so under subsection
(10) of Section 2-1708, shall separately or jointly with one or more others
post security in an amount equal to the equivalent lump sum value of the
unpaid judgment, including past damages, in a form prescribed in Section
2-1710, within 30 days after the date the judgment is subject to
enforcement. A liability insurer having a contractual obligation and any
other person adjudged to have an obligation to pay all or part of a
judgment for periodic installments on behalf of a judgment debtor is
obligated to post security to the extent of its contractual or adjudged
obligation if the judgment debtor has not done so.
(b) A judgment creditor or successor in interest and any party having
rights under subsection (d) may move that the court find that security has
not been posted and maintained with regard to a judgment obligation owing
to the moving party. Upon so finding, the court shall order that security
complying with this Section be posted within 30 days. If the security is
not posted within that time, the court shall calculate the equivalent lump
sum value of the obligation and enter a judgment for that amount in favor
of the moving party.
(c) If a judgment debtor who is the only person liable for all or a
portion of a judgment requiring security under this Section fails to post
and maintain security, the right to lump sum payment described in
subsection (b) applies only against that judgment debtor and the portion of
the judgment so owed.
(d) If more than one party is liable for all or a portion of a judgment
requiring security and the required security is posted by one or more but
fewer than all of the parties liable, the security requirements are
satisfied and those posting security may proceed under subsection (b) to
enforce rights for security or lump sum payment to satisfy or protect
rights of reimbursement from a party not posting security.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1712) (from Ch. 110, par. 2-1712)
Sec. 2-1712.
Equivalent lump sum value.
When required to do so under
Part 17 of Article II of the "Code of Civil Procedure", the court shall
determine the equivalent lump sum value in accordance with this Section.
Non-economic loss shall not, under any Section of this Part, be subject
to discounting. The only portion of damages subject to discounting in this
Part is future economic loss.
The court shall determine the equivalent lump sum value of any future
economic loss by applying the discount factor, compounded annually, to
those elements of damages for future economic loss, and then adding,
without discounting, those elements of damages for future non-economic
loss. The discount factor shall be 6%.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1713) (from Ch. 110, par. 2-1713)
Sec. 2-1713.
Effect of death.
(a) For all future damages which the trier
of fact has determined will accrue for the remainder of the plaintiff's
life, payment for those damages shall continue until the later of the
plaintiff's death or the time when the remaining life expectancy is
reached. For all future damages which the trier of fact has determined will
accrue for a definite number of years, payment for those damages shall
continue for that number of years irrespective of the plaintiff's death.
(b) If, in an action for wrongful death, a judgment for periodic
installments provides payments to more than one person entitled to receive
benefits for losses that do not terminate under subsection (a) and one or
more but fewer than all of them die, the surviving beneficiaries succeed to
the shares of the deceased beneficiaries. The surviving beneficiaries are
entitled to shares proportionate to their shares in the periodic
installments not yet paid, but they are not entitled to receive payments
beyond the respective periods specified for them in the judgment.
(c) If, in an action other than one for wrongful death, a judgment for
period installments is entered and a person entitled to receive benefits for
losses that do not terminate under subsection (a) under the judgment dies
and is survived by one or more qualifying survivors, any periodic
installments not yet due at the death must be shared equitably by those survivors.
(d) "Qualifying survivor" means a person who, had the death been caused
under circumstances giving rise to a cause of action for wrongful death,
would have qualified as a beneficiary at the time of death according to the
law that would have applied in an action for wrongful death by the
jurisdiction under which the issue of liability was resolved in entering
the judgment for periodic installments.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1714) (from Ch. 110, par. 2-1714)
Sec. 2-1714.
Liability insurance policy limits.
(a) In determining
whether or to what extent a judgment for periodic installments exceeds limits
under a liability insurance policy, the present equivalent lump sum value
of future periodic payments must be added to the amount of the judgment
awarded in lump sum. The sum so calculated must be compared to applicable
limits under the policy.
(b) If the sum calculated under subsection (a) does not exceed
applicable policy limits when the judgment is entered, amounts due by
reason of future periodic payments are entirely within those limits.
(c) If the sum calculated under subsection (a) exceeds applicable
policy limits when the judgment is entered, the future periodic payments
must be allocated proportionately to amounts within and amounts in
excess of those limits.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1715) (from Ch. 110, par. 2-1715)
Sec. 2-1715.
Assignment of periodic installments.
An assignment of
or an agreement to assign any right to periodic installments for future
damages contained in a judgment is enforceable only as to amounts:
(1) to secure payment of alimony, maintenance, or child support;
(2) for the costs of products, services, or accommodations provided or
to be provided by the assignee for medical or other health care; or
(3) for attorney's fees and other expenses of litigation incurred
in securing the judgment.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1716) (from Ch. 110, par. 2-1716)
Sec. 2-1716.
Exemption of benefits.
Periodic installments for future
damages for loss of earnings are exempt from garnishment, attachment,
execution, and any other process or claim to the extent that wages or
earnings are exempt under any applicable law. Except to the extent that
they may be assigned under Section 2-1715, periodic installments for all
future damages are exempt from garnishment, attachment, execution, and any
other process or claim.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1717) (from Ch. 110, par. 2-1717)
Sec. 2-1717.
Settlement agreements and consent judgments.
(a) Parties
to a medical malpractice action may file with the clerk of the court in
which the action is pending or, if none is pending, with the clerk of a
court of competent jurisdiction over the claim, a settlement agreement for
future damages payable in periodic installments. The settlement agreement
may provide that one or more of Sections 2-1705 through 2-1718 apply to it.
(b) Upon petition of the parties, a court of competent jurisdiction
may enter a consent judgment adopting one or more of Sections 2-1705 through 2-1718.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1718) (from Ch. 110, par. 2-1718)
Sec. 2-1718.
Satisfaction of judgments.
If security is posted in
accordance with Section 2-1711 and approved under a final judgment, the
judgment is satisfied and the judgment debtor on whose behalf the security
is posted is discharged.
(Source: P.A. 84-7.)
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(735 ILCS 5/2-1719) (from Ch. 110, par. 2-1719)
Sec. 2-1719.
Duties of Director of Insurance.
The Director of
Insurance shall establish rules and procedures:
(1) for determining which insurers, self-insurers, plans, arrangements,
reciprocals or other entities under his or her regulation are financially
qualified to provide the security required under Section 2-1711 and to be
designated as qualified insurers;
(2) to require insurers to post security under Section 2-1711 if found
by the court to be obligated and capable of posting security; and
(3) for publishing prior to January 1 of each year the rate of discount
per annum set out in subsection (c) of Section 2-1709.
(Source: P.A. 84-7.)
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