WI: Medical Malpractice Legislation Heads to Governor’s Desk

From the Wisconsin Hospital Association

After clearing the Assembly two weeks ago, this week the Senate passed legislation reinstating caps for non-economic damages (pain and suffering) awarded in medical malpractice cases. AB 766 reinstates caps on non-economic damages at $450,000 for adults and $550,000 for children (18 and under). The legislation is in response to the Wisconsin Supreme Court striking down Wisconsin’s cap on non-economic damages in July.

In making the case for reinstating the cap, Senator Scott Fitzgerald (R-Juneau) was quick to point out to his colleagues that, unlike some other states that limit both economic and non-economic damages, Wisconsin currently has no cap on economic damages and there is no effort to change that.

Sen. Fitzgerald said the legislation is designed to address Supreme Court Justice Crooks’ concerns about the lack of rationale behind the previous cap, when he indicated that the number seemed to be "plucked out of the sky." Fitzgerald described to his colleagues the thoughtful process that was undertaken in crafting this legislation. "The numbers were arrived at by claims’ experience, comparison to other states and a study by Pinnacle Actuarial Resources that indicates these numbers are very close to where we need to be."

The bill also establishes a biennial review process (every odd numbered year) for determining whether the amount of the caps is still appropriate or whether it needs to be adjusted. While six Democrats in the Assembly joined all of their Republican counterparts in voting for the bill, the vote in the Senate was strictly along party lines. However, Senator Mark Miller (D-Madison) offered an amendment to reinstate a cap at $1 million. Though the $1 million cap was not supported by WHA, and failed, it was a strong, bipartisan signal of a desire to address the issue.

"All 33 senators, Democrat and Republican, voted for a cap on Tuesday (November 8), because they recognize that Wisconsin needs damage limits to maintain access to high quality physicians and hospital care," said WHA’s Senior Vice President Eric Borgerding. "While the cap amounts differed, I think these votes sent a very strong message, and am hopeful that a cap will eventually be reinstated in Wisconsin."

The disagreement that remains seems to be over determining what the amount of the cap should be. Wisconsin’s Governor, Jim Doyle, in early media reports has indicated he will veto the bill. However, WHA will be working with members and the public by running radio ads asking people to contact Governor Doyle urging him to sign AB 766.

WHA’s Vice President of Government Affairs Jodi Bloch added, "We need only look to our neighbors in Illinois to witness the devastating consequences that having no caps on non-economic damages can do to health care access. We have to fight to maintain this access that up until now Wisconsinites have taken for granted."