Answer 1- affirmative defenses and counterclaim for declarative relief in med mal suit - Part 2

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ANSWER, Paragraph 40 of Count II of plaintiff's complaint at law contains conclusions of law rather than averments of fact; therefore no answer is required. To the extent that an answer may be required, this defendant denies the allegations set forth in paragraph 40 of Count II of plaintiff's complaint at law.

41. That the requirements in 735 ILCS 5/2-622 further arbitrarily and unnecessarily impose on this screening mechanism certain expert standards that will impose additional expenses and burdens, without justification, on plaintiffs, which will deter the filing of meritorious lawsuits or otherwise limit a plaintiff's ability to obtain a complete remedy.

ANSWER, Paragraph 41 of Count II of plaintiff's complaint at law contains conclusions of law rather than averments of fact; therefore no answer is required. To the extent that an answer may be required, this defendant denies the allegations set forth in paragraph 41 of Count II of plaintiff's complaint at law.

42. That, so as to preserve the issue of whether 735 ILCS 5/2-622 is constitutional without jeopardizing this Court's jurisdiction in this matter, plaintiff DUSTY ALEXANDER attaches the report without disclosing the reviewing health care professional's name, address, current license number, and state licensure pending a motion plaintiff intends to make that this missing information be provided to the Court but not to opposing counsel and that it be sealed in accordance with a protective order pursuant to Sup. Ct. Rules, Rule 201(c)(1).

ANSWER, This defendant admits that plaintiff has attached to the complaint reports that purport to have been prepared by a board certified physician; however, these reports do not disclose any identifying information about the individual who allegedly prepared them and therefore fail to meet the statutory prerequisites set forth in section 2-622 of the Code of Civil Procedure, 735 ILCS 5/2-622 (West 2006). The remaining allegations in paragraph 42 of Count II of plaintiff's complaint at law require no answer.

43. That the evidentiary rule codified at 735 ILCS 5/8-1901 regulating the admissibility of a health care provider's acknowledgement of liability constitutes a form of special legislation in violation of Article IV, § 13 of the Illinois Constitution because, at the expense of plaintiff, DUSTY ALEXANDER, the rule specially and without just cause grants evidentiary privilege to health care providers when no other parties receive such special consideration, and denies its use to those injured by the negligence of health care providers when no other plaintiffs are so denied.

ANSWER, Paragraph 43 of Count II of plaintiffs complaint at law contains conclusions of law rather than averments of fact; therefore no answer is required. To the extent that an answer may be required, this defendant denies the allegations set forth in paragraph 43 of Count II of plaintiff's complaint at law.

44. That Public Law 94-677 violates Art. IV, § 8(d) of the Illinois Constitution, which provides that “[b]ills, except bills for appropriations and for the codification, revision or rearrangement of laws, shall be confined to one subject.” The Act does not comply with this requirement. It is an omnibus collection covering many different subjects, whose provisions were cobbled together in a single bill only because they all advance the agenda of the special interests behind the Act.

ANSWER, Paragraph 44 of Count II of plaintiff's complaint at law contains conclusions of law rather than averments of fact; therefore no answer is required. To the extent that an answer may be required, this defendant denies the allegations set forth in paragraph 44 of Count II of plaintiff's complaint at law.

45. That a judicial determination is necessary and appropriate at this time because the uncertainty as to whether Public Law 94-677 can be applied constitutionally has a direct and immediate impact on how plaintiff DUSTY ALEXANDER should prepare for trial and that the future course of this litigation will be controlled by resolution of these constitutional challenges, which portend the ripening seeds of litigation. In addition, whether the damages cap will apply to a jury trial award affects the overall value of the case should there be any discussion of settlement, the types of experts that plaintiff DUSTY ALEXANDER will choose to hire to prepare for trial, and the trial strategies and court costs at any future trial of this matter.

ANSWER, Paragraph 45 of Count II of plaintiff's complaint at law contains conclusions of law rather than averments of fact; therefore no answer is required. To the extent that an answer may be required, this defendant denies that it is necessary or appropriate for this Court to determine the constitutionality of each of the provisions of Public Act 94-677 at this time. This defendant lacks sufficient knowledge to form a belief as the truth of the remaining allegations set forth in paragraph 45 of Count II of plaintiff's complaint at law and on that basis denies them.

46. That plaintiff DUSTY ALEXANDER has been, and continues to be, seriously damaged and harmed by the negligent acts at issue.

ANSWER, This defendant denies the allegations set forth in paragraph 46 of Count II of plaintiff's complaint at law. Answering further, this defendant denies that any such injuries were directly or proximately caused by his acts or omissions.

47. That the inability to make fundamental strategy decisions and evaluations, due to the current uncertainty as to plaintiff DUSTY ALEXANDER'S legal rights, constitutes an actual controversy between the parties that is of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Plaintiff DUSTY ALEXANDER and his counsel are currently in the process of developing trial strategies, budgeting resources (both time and financial), and making other trial decisions that are directly governed by the provisions of Public Law 94-677 addressed herein.

ANSWER, Paragraph 47 of Count II of plaintiff's complaint at law contains conclusions of law rather than averments of fact; therefore no answer is required. To the extent that an answer may be required, this defendant lacks sufficient knowledge to form a belief as the truth of the allegations set forth in paragraph 47 of Count II of plaintiff's complaint at law; therefore said allegations are denied.

WHEREFORE, for the foregoing reasons, defendant, GREGORY NACOPOULOS, D.O., denies that plaintiff is entitled to an adjudication that any provision of Public Law 94-677 is unconstitutional.

First Affirmative Defense Lack of Standing

For his First Affirmative Defense to Count II of plaintiff's Complaint at Law, defendant, GREGORY NACOPOULOS, D.O., by his attorneys, DONOHUE BROWN MATHEWSON & SMYTH LLC and BROWN, HAY & STEPHENS LLP, alleges:

1. Plaintiff lacks standing to challenge the evidentiary provisions of 735 ILCS 5/8-1901(b). Section 8-1901(b) provides that an “expression of grief, apology, or explanation provided by a health care provider” shortly after an adverse medical outcome is “not admissible as evidence” in court. Plaintiff does not allege that section 8 --1901(b) will bar him from introducing any evidence that would otherwise be admitted. Nor does plaintiff allege that defendant provided an expression of grief, apology, or explanation covered by section 8-1901(b).

2. Plaintiff lacks standing to challenge the periodic payment provisions of 735 ILCS 5/2-1704.5. Section 2-1704.5 provides a mechanism by which the defendant in a medical malpractice suit can purchase an annuity to provide for a plaintiff's future medical expenses. These periodic payment provisions are triggered only if “either party in a medical malpractice action ... elects, or the court ... enter[s] an order, to have the payment of the plaintiff's future medical expenses and costs of life care made under this section.” § 2-1704.5(a). Neither party has elected to use section 2-1704.5(a), nor has the Court ordered them to do so. Moreover, plaintiff has not yet obtained any damages award requiring defendant to pay future medical expenses.

3. Plaintiff lacks standing to challenge the expert witness standards contained in 735 ILCS 5/8-2501. Section 8-2501 governs which experts “can testify on the issue of the appropriate standard of care” applicable to a medical professional. Plaintiff does not allege that the expert witness standards will likely prohibit him from obtaining the testimony of any particular expert witness at trial.

4. Plaintiff lacks standing to challenge the limitations on non-economic damages contained in 735 ILCS 5/2-1706.5. Section 2-1706.5(a) limits the amount of non-economic damages that can be awarded in “any medical malpractice action or wrongful death action based on medical malpractice.” It is purely a matter of speculation that plaintiff will be awarded non-economic damages that implicate the limitations.

Second Affirmative Defense Lack of Ripeness

For his Second Affirmative Defense to Count II of plaintiff's Complaint at Law, defendant, GREGORY NACOPOULOS, D.O., by his attorneys, DONOHUE BROWN MATHEWSON & SMYTH LLC and BROWN, HAY & STEPHENS LLP, alleges:

1. Plaintiff's challenge to the evidentiary provisions of 735 ILCS 5/8-1901(b) is unripe. Section 8-1901(b) provides that an “expression of grief, apology, or explanation provided by a health care provider” shortly after an adverse medical outcome is “not admissible as evidence” in court. Plaintiff does not allege that section 8-1901(b) will bar them from introducing any evidence that would otherwise be admitted. Nor does plaintiff allege that defendant provided an expression of grief, apology, or explanation covered by section 8-1901(b).

2. Plaintiff's challenge to the periodic payment provisions of 735 ILCS 5/2-1704.5 is unripe. Section 2-1704.5 provides a mechanism by which the defendant in a medical malpractice suit can purchase an annuity to provide for a plaintiff's future medical expenses. These periodic payment provisions are triggered only if “either party in a medical malpractice action ... elects, or the court ... enter[s] an order, to have the payment of the plaintiff's future medical expenses and costs of life care made under this section.” § 2-1704.5(a). Neither party has elected to use section 2-1704.5(a), nor has the Court ordered them to do so. Moreover, plaintiff has not yet obtained any damages award requiring defendant to pay future medical expenses.

3. Plaintiff's challenge to the expert witness standards contained in 735 ILCS 5/8-2501 is unripe. Section 8-2501 governs which experts “can testify on the issue of the appropriate standard of care” applicable to a medical professional. Plaintiff does not allege that the expert witness standards will likely prohibit him from obtaining the testimony of any particular expert witness at trial.

4. Plaintiff's challenge to the limitations on non-economic damages contained in 735 ILCS 5/2-1706.5 is unripe. Section 2-1706.5(a) limits the amount of non-economic damages that can be awarded in “any medical malpractice action or wrongful death action based on medical malpractice.” It is purely a matter of speculation that plaintiff will be awarded non-economic damages that implicate the limitations.

Third Affirmative Defense

Failure to File Written Reports that Satisfy 735 ILCS 5/2-622 For his Third Affirmative Defense to plaintiff's Complaint at Law, defendant, GREGORY NACOPOULOS, D.O, by his attorneys, DONOHUE BROWN MATHEWSON & SMYTH LLC and BROWN, HAY & STEPHENS LLP, alleges:

1. Plaintiff's complaint at law alleges that defendant failed to provide adequate medical care in connection with the treatment of Dusty Alexander at Swedish Covenant Medical Center in July 2006.

2. Section 2-622 of the Code of Civil Procedure applies to this case because it is an “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.” 735 ILCS 5/2-622.

3. Under section 2-622(a)(l), a medical malpractice plaintiff must attach to his complaint a written report from a qualified health professional who concludes there is a “reasonable and meritorious cause” for filing the suit. This report must “includ[e] the reviewing health care professional's name, address, current license number, and state of license.” § 2-622(a)(l).

4. Plaintiff has attached to his complaint written reports that do not list the reviewing professionals' names, addresses, or license information.

5. Plaintiff failed to comply with section 2-622 because the written reports attached to his complaint do not contain the required identifying information.

6. Section 2-622(g) provides that “failure of the plaintiff to file [a] ... report in compliance with this Section shall be grounds for dismissal under Section 2-619.”

Counterclaim for Declaratory Relief

For his counterclaim to Count II of plaintiff's Complaint at Law, defendant-counterplaintiff, GREGORY NACOPOULOS, D.O., by his attorneys, DONOHUE BROWN MATHEWSON & SMYTH LLC and BROWN, HAY & STEPHENS LLP, complaining of plaintiff-counterdefendant, alleges:

1. The General Assembly adopted Public 94-677 in 2005 as a bipartisan reform to combat what it perceived as a “heath care crisis” that “endanger[ed] the public health, safety, and welfare of the citizens of Illinois.” Public Act 94-677, § 101(4).

2. Before adopting Public Act 94--677, the General Assembly, through committees of both the House of Representatives and Senate, held numerous hearings during which legislators considered testimony and reports on the efficacy and reasonableness of the proposed reforms.

3. Public Act 94-677 addresses major issues affecting medical malpractice premiums by directly regulating medical insurance, attempting to reduce medical errors that lead to lawsuits, and reforming the medical malpractice litigation system, among other reforms.

4. Public Act 94-677 created section 2-1706.5 of the Code of Civil Procedure, see 735 ILCS 5/2-1706.5, which imposes limits on the amount of non-economic damages that can be awarded in “any medical malpractice action or wrongful death action based on medical malpractice in which economic and non-economic damages may be awarded,” § 2-1706.5(a).

5. In the General Assembly's considered view, non-economic damages awards in medical malpractice cases had caused malpractice insurers to increase the premiums they charged to physicians and other medical providers.

6. The increasing cost of malpractice insurance had, in turn, caused Illinois doctors to move their practices to other states, dissuaded doctors from beginning careers in Illinois, and caused doctors that remained in Illinois to increase the cost of their medical services. These developments reduced the availability of affordable medical care in Illinois.

7. The Legislature intended to stem the increase in malpractice insurance premiums, and thereby address this medical crisis, by setting a ceiling on non-economic damages.

8. Numerous studies have determined that the cost of medical malpractice insurance has increased sharply in recent years, along with a marked rise in jury awards for non-economic damages. There is, in addition, considerable data showing that this cost increase has reduced the availability of affordable medical care in Illinois. Moreover, a large body of research supports the General Assembly's conclusion that limiting non-economic damages is an effective means of combating escalating insurance premiums and keeping medical professionals in Illinois.

9. The limitations on non-economic damages contained in section 2-1706.5 do not violate the constitutional prohibition on special legislation. See Ill. Const, art. IV, § 13. The General Assembly rationally determined that limiting non-economic damages in medical malpractice cases would help resolve a statewide health care crisis.

10. The limitations on non-economic damages contained in section 2-1706.5 do not violate the Equal Protection Clause of the Illinois Constitution. See Ill. Const, art. IV, § 13. The General Assembly rationally decided to apply the damages limitations only in medical malpractice cases because it was addressing a pressing health care crisis caused by medical malpractice litigation.

11. The limitations on non-economic damages contained in section 2-1706.5 do not violate the Due Process Clause of the Illinois Constitution. See Ill. Const, art. I, § 2. The damages limitations are rationally related to the state's goal of ensuring that Illinois citizens have access to quality medical care at a reasonable cost. Moreover, plaintiff lacks any “property” interest protected by the clause because he does not have a vested right to receive unlimited non-economic damages.

12. The limitations on non-economic damages contained in section 2-1706.5 do not violate the Separation of Powers Clause of the Illinois Constitution. See Ill. Const, art. II, § 1. Section 2 -1706.5 does not deprive Illinois judges of their authority to correct excessive jury verdicts under the remittitur doctrine. Damages limitations are part of the substantive law that governs claims that may be brought in court, while the remittitur doctrine is concerned with ensuring a jury correctly applies the governing law in a particular case.

13. The limitations on non-economic damages contained in section 2-1706.5 do not infringe plaintiff's jury trial rights under the Illinois Constitution. See Ill. Const, art. 1,§ 13. The damages limitations establish, as a matter of law rather than fact, the outer limits of the remedy available to successful plaintiffs and thus do not interfere with the jury's right to make factual determinations. Moreover, the Illinois right to a jury trial does not extend to the assessment of damages.

14. The limitations on non-economic damages contained in section 2-1706.5 do not violate the Remedy Clause of the Illinois Constitution. See Ill. Const, art. I, § 12. Section 2 -1706.5 does not eliminate any cause of action that a plaintiff could otherwise bring but rather restricts the amount of damages recoverable.

15. Public Act 94-677 also created section 2-1704.5 of the Code of Civil Procedure, see 735 ILCS 5/2-1704.5, which provides a mechanism by which the defendant in a medical malpractice suit can purchase an annuity to provide for a plaintiff's future medical expenses.

16. The General Assembly believed that the periodic payment provisions of section 2-1704.5 would reduce the cost of malpractice litigation, and thus help lower malpractice insurance premiums, by allowing the cost of large awards for future damages to be spread over time.

17. The periodic payment provisions of section 2-1704.5 do not violate the constitutional prohibition on special legislation. See Ill. Const, art. IV, § 13. The General Assembly rationally decided to apply the periodic payment provisions only in medical malpractice cases because it was addressing a pressing health care crisis caused by medical malpractice litigation.

18. The periodic payment provisions of section 2-1704.5 do not deny equal protection. See Ill. Const, art. I, § 2. The General Assembly rationally decided to apply the periodic payment provisions only in medical malpractice cases because it was addressing a pressing health care crisis caused by medical malpractice litigation.

19. The periodic payment provisions of section 2-1704.5 do not violate the Due Process Clause. See Ill. Const, art. I, § 2. The periodic payment provisions are rationally related to the Legislature's interest in combating the medicalmalpractice crisis. In addition, the periodic payment provisions are rationally related to the government's interest in ensuring that malpractice victims have access to funds when they need them to pay for future medical expenses.

20. The periodic payment provisions of section 2-1704.5 do not violate the Separation of Powers Clause. See Ill. Const, art. II, § 1. In exercising its concurrent authority to enact procedural rules, the General Assembly has adopted a number of statutes that, like the periodic payment provisions, govern when and under what circumstances a successful plaintiff may obtain his judgment. The periodic payment provisions are firmly in line with these other examples of legislatively created procedural rules.

21. The periodic payment provisions of section 2-1704.5 do not violate plaintiff's right to a jury trial, see Ill. Const, art. 1, § 13, because they do not remove any factual issue from the jury. Rather, section 2-1704.5 merely prescribes an optional procedure by which a plaintiff may recover whatever damages the jury decides to award.

22. Public Act 94--677 also reenacted and amended section 8-2501 of the Code of Civil Procedure, see 735 ILCS 5/8-2501, the provision that governs which experts “can testify on the issue of the appropriate standard of care” applicable to a medical professional, id.

23. The expert witness standards contained in section 8-2501 do not violate the Equal Protection Clause. See Ill. Const, art. I, § 2. The General Assembly rationally chose to apply heightened expert witness standards to cases involving the medical standard of care because medical judgments involve unique expertise and specialization, which health care professionals develop through years of education and formal training.

24. The expert witness standards contained in section 8-2501 do not contravene due process. See Ill. Const, art. I, § 2. The General Assembly rationally chose to adopt expert witness standards for medical malpractice cases in order to ensure that witnesses who testify about a medical professional's standard of care are actually qualified to do so.

25. The expert witness standards contained in section 8-2501 are consistent with the Separation of Powers Clause.See Ill. Const, art. II, § 1. The General Assembly has virtually absolute power to prescribe or alter rules of evidence and has adopted numerous statutes that, like the expert witness standards, limit those who can testify about particular matters.

26. Public Act 94-677 also reenacted and amended section 2-622 of the Code of Civil Procedure, see 735 ILCS 5/2-622, which, as relevant in this case, requires a medical malpractice plaintiff to attach to his complaint a written report from an identified health professional who concludes there is a “reasonable and meritorious cause” for filing the suit, § 2-622(a)(l).

27. The report requirement set forth in section 2-622 does not violate the Equal Protection Clause. See Ill. Const, art. I, § 2. The General Assembly rationally concluded that the report requirement advances the State's legitimate goal of curtailing frivolous medical malpractice lawsuits--and that it does so at an early stage, before the expenses of litigation have mounted.

28. The report requirement set forth in section 2-622 does not violate the Due Process Clause, see Ill. Const, art. I, § 2, because it is rationally related to the Legislature's goal of reducing frivolous medical malpractice suits.

29. The report requirement set forth in section 2-622 does not violate the Remedy Clause, see Ill. Const, art. I, § 12, because it is a reasonable condition on access to the courts. Section 2-622 is no more burdensome than the parallel requirement that a medical malpractice plaintiff must present expert testimony to establish the relevant standard of care and its breach.

30. The report requirement set forth in section 2-622 does not violate the Separation of Powers Clause. See Ill. Const, art. II, § 1. Nothing in section 2-622 requires a plaintiff to disclose the identities of his consultants.

31. Public Act 94-677 also created section 8-1901(b) of the Code of Civil Procedure, see 735 ILCS 5/8-1901 (b), which provides that “expression[s] of grief, apology, or explanation provided by a health care provider” shortly after an adverse medical outcome are “not admissible as evidence,” id.

32. The evidentiary provisions of section 8-1901 (b) do not constitute special legislation. See Ill. Const, art. IV, § 13. The General Assembly rationally chose to limit section 8 --1901(b) to health care providers because that section addresses problems unique to health care. In particular, section 8-1901 (b) improves patient care by encouraging candid communication between doctors and patients, allowing doctors to speak freely with patients regarding the outcome of medical procedures without the fear that their candor will prove harmful in court. Moreover, the General Assembly could rationally have concluded that the admissibility rules would reduce the cost of medical malpractice litigation by preventing unnecessary lawsuits.

33. Finally, Public Act 94--677 does not violate the Single Subject Clause of the Illinois Constitution. See Ill. Const, art. IV, § 8 (d). Each of the provisions of Public Act 94--677 advances a single, unifying purpose: combating the pressing health care insurance crisis in Illinois.

For the foregoing reasons, defendant-counterplaintiff, GREGORY NACOPOULOS, D.O., requests judgment against plaintiff-counterdefendant, DUSTY ALEXANDER, as follows:

A. Declaring that the limitations on non-economic damages contained in 735 ILCS 5/2-1706.5 are consistent with the Special Legislation Clause, Equal Protection Clause, Due Process Clause, Separation of Powers Clause, Jury Trial Clause, and Remedy Clause of the Illinois Constitution;

B. Declaring that the periodic payment provisions of 735 ILCS 5/2-1704.5 are consistent with the Special Legislation Clause, Equal Protection Clause, Due Process Clause, Separation of Powers Clause, and Jury Trial Clause of the Illinois Constitution;

C. Declaring that the expert witness standards contained in 735 ILCS 5/8-2501 are consistent with the Equal Protection Clause, Due Process Clause, and Separation of Powers Clause of the Illinois Constitution;

D. Declaring that the report requirements set forth in 735 ILCS 5/2-622 are consistent with the Equal Protection Clause, Due Process Clause, Remedy Clause, and Separation of Powers Clause of the Illinois Constitution;

E. Declaring that the evidentiary provisions of 735 ILCS 5/8--1901(b) are consistent with the Special Legislation Clause of the Illinois Constitution;

F. Declaring that Public Law 94--677 comports with the Single Subject Clause of the Illinois Constitution;

G. Dismissing Count II of Plaintiff's Complaint at Law;

H. Awarding Defendant his costs of suit, including attorneys' fees; and

I. Granting such further and additional relief as this Court deems just and equitable.

Respectfully submitted,

DONOHUE BROWN MATHEWSON & SMYTH LLC

By: <<signature>>

Richard H. Donohue, One of the Attorneys for Defendant, GREGORY NACOPOULOS, D.O.
I.D. 32878
Richard H. Donohue
Karen Kies DeGrand
Kristin M. Gruss
Edward E. Fu
DONOHUE BROWN MATHEWSON & SMYTH LLC
140 South Dearborn Street, Suite 800
Chicago, IL 60603
(312) 422-0900

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