Eminent Constitutional Expert Discusses Reform Law Defense
Mutual Interests is pleased to feature a conversation with former U.S. Solicitor General Theodore B. Olson, who will lead the defense for ISMIE Mutual and ISMS in the fight to uphold the constitutionality of the 2005 reform law that includes caps on non-economic damage awards in medical liability lawsuits.
What is the basic process for defending a constitutional law?
There is a strong presumption that statutes passed by the General Assembly are constitutional. Although the issues vary from case to case, the key to defending any statute is to explain convincingly why the legislature had authority to do what it did. Our argument in this case is that the 2005 reforms are constitutional because the General Assembly adopted them in response to a well documented, pressing health care crisis caused by out-of-control medical malpractice litigation.
Why do you believe the 2005 medical liability reforms are constitutional, and can you comment on basic strategies to be employed in this case?
The constitutional test is whether the General Assembly had a “rational basis” to enact the reforms. The General Assembly sought and obtained information and views from all interested groups, including patients, physicians, hospitals, insurance providers, insurance regulators – and the plaintiff’s bar. Our strategy is to demonstrate for the courts how carefully, reasonably, and deliberately the General Assembly acted.
Please describe the importance of a cohesive and prepared defense team, and what your specific role will be. How will you draw on and apply your past experience as U.S. Solicitor General to the case?
In high-stakes cases such as this one, it is crucial to have a legal team that works well together. I am proud of the working relationship we have with the ISMIE/ISMS legal team, which includes brilliant and experienced lawyers who have been working on these issues for decades.
While Solicitor General, I was frequently called upon to defend the constitutionality of statutes enacted by Congress. In doing so, I carefully studied and relied upon many of the same types of arguments that we will make in this case.
Discuss public perception and the role, if any, it plays in upholding the medical litigation reform law.
It is very important. To begin with, the General Assembly acted because of the widespread public perception and understanding that something had to be done about the health care crisis. The General Assembly heard terrible stories about physicians who were forced to leave Illinois because the malpractice litigation system was broken. It is both heartbreaking and outrageous that the tort lottery has prevented these qualified doctors from practicing the profession they love in the state of their choice.
Please comment on the general nature of your work and why you find it satisfying.
I have dedicated my professional life to resolving difficult questions of constitutional law. Defending legislation adopted by the people’s representatives is one of the highest callings a lawyer can have, and I am honored to be working on this case.
While you’re fighting for doctors and patients in the courts, what can ISMIE policyholders and Illinois citizens do to help?
While the battle plays out in the courts, I encourage policyholders and Illinois citizens to support ISMIE and to take a strong stand on behalf of doctors throughout the state.
Theodore B. Olson
In addition to being Solicitor General of the United States from 2001-2004, Mr. Olson is a partner in the firm of Gibson, Dunn & Crutcher, and a Fellow of both the American College of Trial Lawyers and the American Academy of Appellate Lawyers. The National Law Journal has repeatedly listed him as one of America’s Most Influential Lawyers. Mr. Olson also has written and lectured extensively on legal issues ranging from constitutional law to civil justice reform.