Wisconsin Tort Reform Slowly Creeps Back

In a landmark decision in 2005, the Supreme Court of Wisconsin struck down the state’s strict cap on non-economic damages, which limited plaintiffs’ recovery to $350,000. Finding this law to be unconstitutional on the grounds that it violated the equal protection clause, the Court’s decision explains that the cap placed “plaintiffs with the most severe injuries […] at the highest risk for inadequate compensation.” The document goes on to say that based on a decade of research and experience with the law, it simply did “not appear rational” and that “it is not reasonable to conclude that the $350,000 cap has [had] its intended effect of reducing medical malpractice premiums.” Despite these vociferous and convincing arguments from the highest court in the state, however, caps have found their way back into Wisconsin’s tort system.

The Milwaukee Journal Sentinel reports that under consistent pressure on the legislature from the insurance and medical lobbies, Wisconsin lawmakers (in 2006) set a $750,000 limit on recovery, but with additional caveats: plaintiffs would not be able to recover noneconomic damages (like pain and suffering) and punitive damages (a monetary amount designed as a deterrent for reckless behavior) would no longer be allowed. Complicating matters further, if a doctor is employed by the state (over 1,300 doctors are), a $250,000 cap on damages applies. The Journal Sentinel adds that this represents the maximum amount a victim of medical malpractice can recover “even if a doctor’s negligence results in a lifetime injury that will require millions of dollars of future treatment.”

But cases are coming to the public’s attention that may turn the tide against these caps. One such case involves a 53-year-old mother of four named Ascaris Mayo, whose Strep A infection went undetected by doctors and resulted in septic shock. After suffering through amputations to all four limbs, this woman sued the doctors who failed to diagnose her condition. A jury awarded her about $8 million for past and future medical costs, adding $15 million for pain and suffering and $1.5 million for her husband’s loss of companionship. Though she will collect the medical portion of her award, the other $16 million will be automatically lowered, in accordance with state law, to $750,000.

The Journal Sentinel article claims that due to these draconian limits–which continue to punish the most vulnerable of citizens–medical malpractice insurers are enjoying record profit margins, with the president of one such company stating, “The medical liability environment has been better than expected by anyone.” Accordingly, since 1999, medical malpractice cases in Wisconsin have dropped by half. The editor of a trade magazine that covers medical liability states plainly, “This is a boom time for physicians.” A Madison attorney who has spent years challenging this cap claims, “This is a great place to be a physician. They have de facto immunity.”

While it is clear to average citizens–like the ones who awarded Ascaris Mayo $15 million for her catastrophic pain and suffering–that these policies disproportionately disadvantage ordinary citizens in favor of corporations and insurance companies. This is yet another example of the civil justice system being hijacked by corporations that value profits over people. Hopefully, the people will elect legislators with their interests at heart and not the lobbyists who push legislation favorable only to corporate clients.