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Abstract

On August 2023, Illinois Governor J.B. Pritzker signed a bill into law that, for the first time, allows the imposition of punitive damages in torts cases that originate in someone’s death. Unfortunately, the law is flawed because it still unjustifiably bans the imposition of punitive damages in medical and legal malpractice cases. In doing so, by looking to minimize the extent of possible liability in malpractice cases, the legislature focused too much on protecting tortfeasors who act egregiously and too little on creating incentives to reduce the incidence of conduct that constitutes malpractice. As it is, the state of the law favors the wrongdoers and, more importantly, leaves the most severely injured victims without a complete means of redress. In theory, the more wrongful the tortfeasor’s conduct is, the more public policy calls for the imposition of punitive damages. The current state of the law in Illinois undermines this public policy. For this reason, this Article argues that, even though we must celebrate the adoption of the new policy, we must denounce its implementation and continue to advocate for change so that it is amended to become fully inclusive and fair. The Article discusses the recently adopted new approach to punitive damages in personal injury cases and concludes that it is important that the General Assembly eliminate the ban on punitive damages in medical and legal malpractice cases so we can finally bring death actions into complete harmony with the general body of law governing other types of tortious conduct.

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