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CHICAGO-Constitutional litigators are joining the battle in an Illinois medical malpractice case that could end up overturning a 2005 state law that caps damages awards for pain and suffering. Gibson, Dunn & Crutcher attorney Theodore Olson, a former U.S. solicitor general who now works in the Los Angeles firm’s Washington office, will work with the defense team to fight the constitutional challenge to the state’s cap in a case that alleges that malpractice led to the delivery of a brain-damaged baby. The plaintiff has signed up Robert Peck, a veteran civil rights lawyer who is fighting against a similar law in Ohio. “This is going to gear up as a big battle,” said Peck, who calls his Washington firm the Center for Constitutional Litigation. The 2005 Illinois law was an attempt to limit noneconomic damages for victims of mistakes made by hospitals, doctors and health care workers. While insurance companies and health care providers favored it, saying it would help stem an exodus of Illinois doctors stung by high malpractice insurance rates, trial lawyers and the Illinois State Bar Association opposed it as an unconstitutional detriment for clients. ‘Landmark’ potential The lawsuit, brought by the baby’s mother in Cook County Circuit Court last November, contends that the Gottlieb Memorial Hospital and a doctor and nurse who work there didn’t act quickly enough to maintain the baby’s health amid signs of trouble. The suit also contends that damages “greatly exceed” the state limits. LeBron v. Gottlieb, No. 25399 (Cook Co., Ill., Cir. Ct. 2005). The law allows plaintiffs to recover damages of no more than $500,000 from a doctor and $1 million from a hospital. Gibson Dunn attorney Drew Tulumello said his firm will “mount a vigorous defense of the statute.” His teammates working on the medical malpractice aspects of the case said they expect their argument in favor of the cap to go before the Illinois Supreme Court. “It’s an important medical malpractice case, but it’s also the landmark tort reform case,” said David Hall, managing partner at Hall, Prangle & Schoonveld, who is representing the nurse, Florence Martinoz, and the hospital. In addition to Peck, lawyers for the mother of the baby include Jeffrey Goldberg of Chicago and attorneys from the Chicago personal injury firm Power, Rogers & Smith. The plaintiffs’ lawyers argue that the law infringes on the right of the judiciary to determine damages. It’s also unconstitutional because it limits liability for a select group of defendants, they say. “The precedent in Illinois is extremely strong-there’s no justification for it,” Peck said. The 2005 Illinois law resembles two prior laws that capped damages. In 1997, the Illinois Supreme Court ruled that a 1995 cap on damages was “unconstitutional special legislation” and that it violated the separation-of-powers doctrine. Best v. Taylor Machine Works, No. 81890-81893. The high court reached a similar conclusion in a 1976 ruling. Wright v. Central DuPage Hospital Association, 63 Ill.2d 313, 347 N.E.2d 736.

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