What Still Reduces Med Mal Damages in Illinois—and What No Longer Does
Excerpted from §§8.27 - 8.33 of Amelia S. Buragas ,Ch. 8, Damages in Medical Malpractice, MEDICAL MALPRACTICE (IICLE® 2026)
Collateral-Source Rule
While not a damages-reducing factor per se, the collateral-source rule continues to be an active area of litigation and one that practitioners should watch closely for developments because it directly impacts the amount of damages a plaintiff can claim for medical bills. Under the collateral-source rule, “benefits received by the injured party from a source wholly independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor.” Arthur v. Catour, 345 Ill.App.3d 804, 803 N.E.2d 647, 649, 281 Ill.Dec. 243 (3d Dist. 2004), quoting Wilson v. Hoffman Group, Inc., 131 Ill.2d 308, 546 N.E.2d 524, 530, 137 Ill.Dec. 579 (1989). The collateral-source rule has both evidentiary and substantive components. Wills v. Foster, 229 Ill.2d 393, 892 N.E.2d 1018, 1022, 323 Ill.Dec. 26 (2008). The evidence component prohibits the defendant from introducing any evidence that the plaintiff’s damages were paid by a collateral source, such as insurance. Id. Substantively, the rule “bars a defendant from reducing the plaintiff’s compensatory award by the amount the plaintiff received from the collateral source.” 892 N.E.2d at 1023, quoting Arthur v. Catour, 216 Ill.2d 72, 833 N.E.2d 847, 852, 295 Ill.Dec. 641 (2005), quoting in turn James M. Fischer, UNDERSTANDING REMEDIES §12(a), p. 77 (1999).
In most instances, the amount billed by medical providers is greater than the amount paid by insurance on behalf of the patient. This has led to a dispute as to whether the plaintiff is entitled to place into evidence the full amount of the bills or whether the plaintiff is limited solely to the amount actually paid. The “actual amount paid” approach has been criticized because it “results in a diminution of the tortfeasor’s liability vis-a-vis an insured victim when compared with the same tortfeasor’s liability vis-a-vis an uninsured victim.” Wills, supra, 892 N.E.2d at 1026, quoting Bozeman v. State, 897 So.2d 692, 703 (La. 2004). Some courts instead rely on the “benefit of the bargain” approach, which allows the plaintiff to recover the full amount of the medical expenses billed in instances in which the plaintiff has paid some consideration (e.g., insurance premiums) for the benefit of the write-off. Wills, supra, 892 N.E.2d at 1026. A criticism of this approach is that it undermines the collateral-source rule by using the plaintiff’s relationship with a third party to measure the tortfeasor’s liability. 892 N.E.2d at 1027.
The Illinois Supreme Court examined these divergent theories of recovery in Wills and adopted the “reasonable-value approach,” which focuses on whether the amount charged was reasonable and customary. 892 N.E.2d at 1030. In doing so, the court noted that the benefits provided by the collateral source were intended to benefit the plaintiff and a “benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor.” Id., quoting Arthur, supra, 833 N.E.2d at 852, quoting in turn RESTATEMENT (SECOND) OF TORTS §920A, cmt. b (1979). Thus, the defendant may not introduce evidence that the plaintiff’s bills were settled for a lesser amount because doing so would undermine the collateral-source rule. Wills, supra, 892 N.E.2d at 1033. However, the defendant is free to cross-examine any witness that the plaintiff calls to attack the reasonableness of the amount charged and may call its own witnesses to testify that the billed amounts do not reflect the reasonable value of the services. Id. Once the bills are put into evidence, it is up to the jury to consider whether to award all, part, or none of the bills as damages. Wills, supra, 892 N.E.2d at 1034.
Setoffs
Setoffs are entered post-verdict and reduce the amount paid to the plaintiff by the defendant.
Setoffs for Medical Payments
Section 2-1205 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., allows for reduction of the amount of the plaintiff’s medical bills that have been paid by any other “person, corporation, insurance company or fund.” This section applies only to actions premised in negligence and does not include intentional torts. Id. This reduction also does not apply to the extent that there is a right of recoupment through subrogation, trust agreement, lien, or otherwise. 735 ILCS 5/2-1205(2). Further, the reduction cannot reduce the judgment by more than 50 percent of the total verdict, and the damages awarded must be increased by the amount of any insurance premiums or direct costs paid by the plaintiff. 735 ILCS 5/2-1205(3), 5/2-1205(4). Application for reduction must be made within 30 days of the judgment. 735 ILCS 5/2-1205(1); Richter v. Northwestern Memorial Hospital, 177 Ill.App.3d 247, 532 N.E.2d 269, 126 Ill.Dec. 584 (1st Dist. 1988) (holding that defendant’s motion filed 30 days after entry of order denying posttrial motion and 6 months after return of jury verdict was untimely).
The courts have strictly interpreted the language of §2-1205, and the right to reduction applies only in instances in which payments are made by reason of a legal obligation. Thus, payments that are gifts or loans from a family member do not trigger the provisions of this statute. Longman v. Jasiek, 91 Ill.App.3d 83, 414 N.E.2d 520, 46 Ill.Dec. 636 (3d Dist. 1980) (finding that defendant was not entitled to reduction when plaintiff’s parents had paid their adult daughter’s medical bills). Section 2-1205 also only permits reduction of a medical expense award for amounts actually paid by an insurer and does not allow for reductions for portions of medical bills that are “written off” due to the contractual relationship between the insurer and the medical providers. Bajgrowicz v. Dev Medical Associates, S.C., 2024 IL App (1st) 230196-U, ¶183.
Any setoffs made pursuant to §2-1205 are to be made from the net recovery. Cohan v. Garretson, 282 Ill.App.3d 248, 667 N.E.2d 1325, 217 Ill.Dec. 749 (1st Dist. 1996).
Setoffs for Contribution
The Joint Tortfeasor Contribution Act, 740 ILCS 100/0.01, et seq., “seeks to promote two important public policies — the encouragement of settlements and the equitable apportionment of damages among tortfeasors.” Johnson v. United Airlines, 203 Ill.2d 121, 784 N.E.2d 812, 821, 271 Ill.Dec. 258 (2003). A settling joint tortfeasor who settles in good faith with the injured party is discharged from contribution liability and is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement. 740 ILCS 100/2(d).
Partial settlement of a claim does not extinguish the plaintiff’s cause of action or reduce the total amount recoverable. However, it may entitle the remaining defendants to a setoff against any judgment:
When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater. 740 ILCS 100/2(c).
Whether a settlement is made in good faith is to be determined by the trial court, which uses a totality-of-the-circumstances approach. Dubina v. Mesirow Realty Development, Inc., 197 Ill.2d 185, 756 N.E.2d 836, 840, 258 Ill.Dec. 562 (2001).
Failure To Mitigate
A medical malpractice verdict may be reduced to the extent that the plaintiff voluntarily fails to follow a doctor’s advice or to accept reasonable medical treatment. Newell v. Corres, 125 Ill.App.3d 1087, 466 N.E.2d 1085, 81 Ill.Dec. 283 (1st Dist. 1984). The failure to mitigate damages relates to the patient’s conduct only after the alleged malpractice occurred. Fisher v. Slager, 201 Ill.App.3d 480, 559 N.E.2d 118, 147 Ill.Dec. 118 (1st Dist. 1990). The failure to mitigate damages is an affirmative defense that a defendant must plead and prove. Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969). If a defendant pleads an affirmative defense and the evidence supports a finding that the patient failed to follow a doctor’s advice or failed to seek treatment, the court may use I.P.I. — Civil No. 105.08.
Mitigation of damages is a discrete concept from comparative negligence. Comparative negligence involves circumstances in which the plaintiff’s negligence is a legally contributing cause of harm. Mitigation of damages, on the other hand, recognizes a duty by the injured party to exercise reasonable diligence and ordinary care to minimize damages after the injury occurs. Jones v. Rallos, 384 Ill.App.3d 73, 890 N.E.2d 1190, 322 Ill.Dec. 271 (1st Dist. 2008).
Comparative Negligence
Comparative negligence is a damages-reducing factor and, ordinarily, a jury question. Gruidl v. Schell, 166 Ill.App.3d 276, 519 N.E.2d 963, 116 Ill.Dec. 748 (1st Dist. 1988). However, courts are somewhat skeptical of applying comparative negligence in medical malpractice cases and will not find comparative negligence merely because the plaintiff’s conduct placed the plaintiff in a position requiring medical treatment. See Owens v. Stokoe, 115 Ill.2d 177, 503 N.E.2d 251, 104 Ill.Dec. 694 (1986). Nonetheless, comparative negligence may be found in instances in which there is an allegation that the plaintiff failed to follow medical advice or to participate in care. See Malanowski v. Jabamoni, 332 Ill.App.3d 8, 772 N.E.2d 967, 265 Ill.Dec. 596 (1st Dist. 2002). When comparative negligence is a factor to be considered in a claim involving the Wrongful Death Act, use I.P.I. — Civil No. B31.08.
Preexisting Conditions/“Same Part of the Body” Rule
In some instances, the defendant may argue that the plaintiff was not harmed and that the injury is solely the result of a preexisting condition. Under the historical “same part of the body” rule, evidence of a prior injury was admissible without any showing that it was causally related to the present injury if both injuries affected the same part of the body. Brown v. Baker, 284 Ill.App.3d 401, 672 N.E.2d 69, 71, 219 Ill.Dec. 754 (5th Dist. 1996). If the injury was not to the same part of the body, the defendant was required to establish a causal connection between the current injury and the prior injury. Bailey v. Wilson, 299 Ill.App.3d 297, 700 N.E.2d 1113, 1116, 233 Ill.Dec. 405 (4th Dist. 1998).
In Voykin v. Estate of DeBoer, 192 Ill.2d 49, 733 N.E.2d 1275, 248 Ill.Dec. 277 (2000), the Illinois Supreme Court abandoned this distinction. The court explained that the “same part of the body” rule was built on the presumption that “if a plaintiff has previously suffered an injury to the same part of the body, then that previous injury is automatically relevant to the present injury simply because it affected the same part of the body.” 733 N.E.2d at 1279. The court noted that this was a conclusion with which it could no longer agree. Id. Under Voykin, supra, the defendant must establish a causal relationship between the current injury and the prior injury, regardless of the locations of the injuries. 733 N.E.2d at 1280, further held that, in most instances, the defendant must offer expert opinion testimony to support causation.