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2005 Illinois 735 ILCS 5/      Code of Civil Procedure. Part 17 - Healing Art Malpractice


      (735 ILCS 5/Art. II Pt. 17 heading)
PART 17. HEALING ART MALPRACTICE

    (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.)

    (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.)

    (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.)

    (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.)

    (735 ILCS 5/2‑1704.5)
    Sec. 2‑1704.5. Guaranteed payment of future medical expenses and costs of life care.
    (a) At any time, but no later than 5 days after a verdict in the plaintiff's favor for a plaintiff's future medical expenses and costs of life care is reached, either party in a medical malpractice action may elect, or the court may enter an order, to have the payment of the plaintiff's future medical expenses and costs of life care made under this Section.
    (b) In all cases in which a defendant in a medical malpractice action is found liable for the plaintiff's future medical expenses and costs of care, the trier of fact shall make the following findings based on evidence presented at trial:
        (1) the present cash value of the plaintiff's future
    
medical expenses and costs of life care;
        (2) the current year annual cost of the plaintiff's
    
future medical expenses and costs of life care; and
        (3) the annual composite rate of inflation that
    
should be applied to the costs specified in item (2).
    Based upon evidence presented at trial, the trier of fact may also vary the amount of future costs under this Section from year to year to account for different annual expenditures, including the immediate medical and life care needs of the plaintiff. The jury shall not be informed of an election to pay for future medical expenses and costs of life care by purchasing an annuity.
    (c) When an election is made to pay for future medical
    
expenses and costs of life care by purchasing an annuity, the court shall enter a judgment ordering that the defendant pay the plaintiff an amount equal to 20% of the present cash value of future medical expenses and cost of life care determined under subsection (b)(1) of this Section and ordering that the remaining future expenses and costs be paid by the purchase of an annuity by or on behalf of the defendant from a company that has itself, or is irrevocably supported financially by a company that has, at least 2 of the following 4 ratings: "A+ X" or higher from A.M. Best Company; "AA‑" or higher from Standard & Poor's; "Aa3" or higher from Moody's; and "AA‑" or higher from Fitch. The annuity must guarantee that the plaintiff will receive annual payments equal to 80% of the amount determined in subsection (b)(2) inflated by the rate determined in subsection (b)(3) for the life of the plaintiff.
    (d) If the company providing the annuity becomes unable
    
to pay amounts required by the annuity, the defendant shall secure a replacement annuity for the remainder of the plaintiff's life from a company that satisfies the requirements of subsection (c).
    (e) A plaintiff receiving future payments by means of an
    
annuity under this Section may seek leave of court to assign or otherwise transfer the right to receive such payments in exchange for a negotiated lump sum value of the remaining future payments or any portion of the remaining future payments under the annuity to address an unanticipated financial hardship under such terms as approved by the court.
    (f) This Section applies to all causes of action accruing on or after the effective date of this amendatory Act of the 94th General Assembly.
(Source: P.A. 94‑677, eff. 8‑25‑05.)

    (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.)

    (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.)

    (735 ILCS 5/2‑1706.5)
    Sec. 2‑1706.5. Standards for economic and non‑economic damages.
    (a) In any medical malpractice action or wrongful death action based on medical malpractice in which economic and non‑economic damages may be awarded, the following standards shall apply:
        (1) In a case of an award against a hospital and its
    
personnel or hospital affiliates, as defined in Section 10.8 of the Hospital Licensing Act, the total amount of non‑economic damages shall not exceed $1,000,000 awarded to all plaintiffs in any civil action arising out of the care.
        (2) In a case of an award against a physician and
    
the physician's business or corporate entity and personnel or health care professional, the total amount of non‑economic damages shall not exceed $500,000 awarded to all plaintiffs in any civil action arising out of the care.
        (3) In awarding damages in a medical malpractice
    
case, the finder of fact shall render verdicts with a specific award of damages for economic loss, if any, and a specific award of damages for non‑economic loss, if any.
    The trier of fact shall not be informed of the provisions of items (1) and (2) of this subsection (a).
    (b) In any medical malpractice action where an individual
    
plaintiff earns less than the annual average weekly wage, as determined by the Illinois Workers' Compensation Commission, at the time the action is filed, any award may include an amount equal to the wage the individual plaintiff earns or the annual average weekly wage.
    (c) This Section applies to all causes of action accruing on or after the effective date of this amendatory Act of the 94th General Assembly.
(Source: P.A. 94‑677, eff. 8‑25‑05.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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.)

    (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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