A couple months ago, we received a heartbreaking note from a Wisconsin patient who was a clear victim of breast reconstruction malpractice at the University of Wisconsin hospital, but has been blocked from suing because of the state’s severe cap on malpractice compensation. Then I wondered, “have I been asleep for the last decade? Didn’t Wisconsin produce in 2005 one of the best state Supreme Court decisions ever striking down that state’s $350,000 non-economic damage cap?"
Indeed it did. In 2005, the Wisconsin Supreme Court found caps to be unconstitutional because, among other things:
Caps limit the claims of those who can least afford it; that is, the claims of those who have suffered the greatest injuries.
Because an injured patient shares the cap with family members, the cap has a disparate effect on patients with families.
[W]hen the legislature shifts the economic burden of medical malpractice from insurance companies and negligent health care providers to a small group of vulnerable, injured patients, the legislative action does not appear rational. Limiting a patient's recovery on the basis of youth or how many family members he or she has does not appear to be germane to any objective of the law.
It is a major contradiction to legislate for quality health care on one hand, while on the other hand, in the same statute, to reward negligent health care providers.…
Based on the available evidence from nearly 10 years of experience with caps on noneconomic damages in medical malpractice cases in Wisconsin and other states, it is not reasonable to conclude that the $350,000 cap has its intended effect of reducing medical malpractice insurance premiums.
The available evidence indicates that health care providers do not decide to practice in a particular state based on the state's cap on noneconomic damages.
I may not have slept through the last decade but I guess my snoozing through meetings and baseball games (like this guy) was enough to have missed all the damage Wisconsin’s medical and insurance lobbies have caused patients since that great decision. Luckily, the Milwaukee Journal Sentinel recently did me a solid and explained some of the problems:
A $350,000 cap was enacted in 1995, which with inflation adjustments rose to $445,775 before it was struck down by the state Supreme Court in 2005 as being arbitrary and violating the equal protection provision of the state constitution.
State lawmakers led by then-Rep. Curt Gielow (R-Mequon), a former hospital administrator, then approved a $450,000 cap that was vetoed by then-Gov. Jim Doyle. The Democratic governor ultimately approved the $750,000 cap in 2006.
The state also caps noneconomic damages in any wrongful death case at $500,000, and it bans punitive damages in medical malpractice cases.
The cap on malpractice damages is even lower if the doctor is employed by the state, a category that includes the more than 1,350 who practice at Madison's University of Wisconsin Hospital and Clinics or associated facilities. Because the UW doctors are state employees — all state employees are covered by the cap — the ceiling on damage awards of any type is $250,000 per defendant, a cap that applies even if a doctor's negligence results in a lifetime injury that will require millions of dollars of future treatment. …
"This is a great place to be a physician," said Farnsworth, the Madison lawyer, who is challenging the $250,000 cap in appellate court. "They have de facto immunity."
So what about the patients who are unconstitutionally victimized by caps in Wisconsin? Oh, they’re still out there.
The paper is reporting on a $25.3 million jury award for a 53-year-old mother of four who “lost all four of her limbs as the result of medical malpractice.” The jury believed she deserved $15 million for pain and suffering and $1.5 million for her husband's loss of companionship - damages that are subject to the state’s $750,000 cap. Those responsible for causing her horrendous injuries are now going to ask that the cap be applied.
"This is a great case to challenge the cap — there is a significant physical loss and a substantial damage award," said Paul Scoptur, a Milwaukee plaintiffs' attorney and jury consultant who was not involved in the case. …
"One way or the other, this will likely get to the (Wisconsin) Supreme Court," said Daniel Rottier, the attorney for Mayo and her husband, Antonio Mayo.
And this time, the Court will have the Florida Supreme Court’s findings for back-up. This year, Florida's highest Court struck down that state's wrongful death cap, finding is unconstitutional. The Court found no support for a legislative scheme that imposes such a severe burden “upon the shoulders of the persons and families who have been most severely injured and died as a result of medical negligence,” and which leads to huge insurance industry profits. Any judge honestly looking at the facts couldn’t possibly find otherwise.