Saturday, July 30, 2005

More on the WI Supreme Court Med Mal Ruling

Excerpted from the ABA Journal eReport

Wisconsin Damage Cap Wiped Out in Rational Basis Review

As any constitutional law student knows, rational basis review is the lowest of the low.

But it was high enough for the Wisconsin Supreme Court to wipe out as an equal protection violation a cap on some medical malpractice damages. And it was enough to leave the state’s medical establishment reeling.

The court also cut off federal appeals by deciding the case solely under the Wisconsin Constitution, effectively painting physicians and their legislative allies into a corner as they pondered a fix.

"We had just figured out how to deal with the legislative branch, and now the supreme court comes along," complains Mark M. Grapentine, a lobbyist for the Wisconsin Medical Society, which filed an amicus brief along with the American Medical Association.

Moreover, the highly detailed and carefully crafted opinion also caught the attention of plaintiffs lawyers outside Wisconsin who are searching for arguments to fend off looming homegrown damage limits that doctors say will curb their malpractice insurance premiums.

"This is huge," says medical malpractice plaintiffs lawyer Thomas A. Demetrio in Chicago, where a cap Illinois lawmakers passed this spring awaits Gov. Rod Blagojevich’s signature.


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