Constitutional Amendment May be Remedy to Court Ruling Against

Last updated on May 13th, 2019 at 02:35 pm

Some Wisconsin legislators are considering a plan to amend the state constitution to reestablish a cap on non-economic damages for medical malpractice lawsuits. The state Supreme Court recently ruled that the state’s cap on non-economic damages was unconstitutional. The court said the cap was arbitrary and failed to provide victims with equal protection under the law.
Several legislators say the court decision is a serious problem and will result in rising medical malpractice costs for doctors and physicians in the state. Some say at least a portion of those increased insurance costs will be passed on to consumers in the form of even higher costs for medical care.
"This is another example of an activist court overstepping its authority," said Assembly Speaker John Gard (R-Peshtigo). "This shortsighted ruling jeopardizes quality health care for every resident in the state, especially for folks in rural areas. Fixing this ruling will be a top priority for Assembly Republicans."
In 1995, the legislature capped pain and suffering awards for medical malpractice lawsuits at $350,000, and allowed the cap to increase with inflation. The cap reached about $445,000 this year before it was overturned by the court. No cap was placed on economic damages, which include medical costs and lost wages.
Supporters of the cap said it was one of two major factors that have kept medical malpractice insurance low for doctors and hospitals in Wisconsin, compared with most other states.
The other factor is the Patients Compensation Fund. Health care providers in the state are required to pay annual fees that are contributed to the fund. That money is used to pay for any awards from medical malpractice lawsuits in excess of $1 million.
Anecdotal evidence indicates that some doctors have moved their practices to Wisconsin in recent years to avoid escalating medical malpractice insurance costs in other states, such as Illinois.
Now that Wisconsin’s cap on non-economic damages has been ruled unconstitutional, some say malpractice insurance rates in the state will increase, forcing some doctors to retire and others to move out of state. Some doctors might decide not to move here from other states.
"We were one of the six best states to practice medicine in before the (court) decision," said Rep. Sheldon Wasserman (D-Milwaukee), an obstetrician gynecologist (OBGYN). "It was working well. We have this nice, stable environment, and all of a sudden the ship has been rocked."
Legislators are just beginning to analyze the court’s decision and form a strategy to limit non-economic medical malpractice awards. They could pass a bill establishing another cap, but that cap might also be ruled unconstitutional by the court.
In addition, some Republican legislators say they fear that Gov. Jim Doyle might veto a bill to create a new cap.
"He’s very close to the trial attorneys in the state, and this was a huge victory for them," said Sen. Scott Fitzgerald (R-Juneau).
Doyle’s staff is still evaluating
the Supreme Court decision, according to Ethnie Groves, spokeswoman for
the governor.
"This will add costs," Wasserman said. "This one 4-3 (Supreme Court) vote has tremendous effect on every one of us."
"Health care costs will go up," said Rep. Curt Gielow (R-Mequon). "Dramatically? I don’t think so."
Insurance companies will use the court decision as an "excuse" to increase medical malpractice premiums, said Senate Minority Leader Judith Robson (D-Beloit). "Insurance companies are laughing all the way to the bank," she said.
Some legislators are considering pursuing a constitutional amendment to reestablish a cap on non-economic medical malpractice damages. The court could not overturn a constitutional amendment, and the governor could not veto it.
However, establishing a constitutional amendment is a lengthy and arduous process. It must be passed twice by the legislature and approved by a statewide referendum.
"I don’t know if that is what we are going to do," said Bob Delaporte, communications director for Gard. "We’ve talked about that. We’re considering all options here. I doubt we will do anything legislatively until this fall."
Gielow predicts Republicans will try to pass a bill for a new cap that will withstand legal challenges, while at the same time starting the lengthy process for amending the constitution, to keep all options open.
Amending the constitution to
create a cap is a legitimate option, Wasserman said.
"The only thing we can do to counter the Supreme Court is a constitutional amendment," he said. "This is a major problem that needs to be fixed."
However, some Democrats say
the constitution should not be tampered with.
"Every time the majority party can’t win in the legislative process, they run to amend the constitution," said Robson, a registered nurse. "They abuse the constitution."
The insurance industry, trial lawyers and health care providers should sit down together at the bargaining table and work out a compromise for a fair cap, Robson said.
"I’d like to find some middle ground where everyone would be at the table and talking so we can iron this out," she said. "But I fear partisan politics will intervene and the majority party will rush (a cap) through, then the governor will veto it, and then they will blame the governor for rising malpractice insurance costs and they will use that to raise campaign contributions from doctors."
A new cap on non-economic medical malpractice damages between $500,000 and $1 million might be able to withstand a court challenge, Wasserman said.
But some don’t think a cap is needed at all.
"The cap had imposed enormous hardships on our most severely harmed victims of medical negligence," said David Skoglind, president of the Wisconsin Academy of Trial Lawyers. "The cap directly overrode the decisions of Wisconsin juries, fundamentally undermining citizens’ right to trial by jury."
Rep. Jon Richards (D-Milwaukee), who is an attorney, also says no cap
is needed.
"In extraordinary cases resulting in death or lifelong injury, I think we should leave it up to the juries, which are made up of ordinary people like you and me, to decide what is appropriate compensation," Richards said.
There is no hard evidence proving that the cap held malpractice insurance rates down in Wisconsin, Richards said.
"This is more of a perception than a reality," he said.
Insurance rates go up for a lot of reasons, Richards said, including a drop in the stock market.
Very few non-economic medical malpractice damage awards have been close to or over the cap since it was established, Richards said.
"Considering the very few number of cases, there is no evidence that this should change the landscape," he said. "There should be no rush to reinstate the cap. There is no reason for medical malpractice rates to go up."
"Juries are not instructed about the caps," Robson said. "Few have awarded damages higher than the cap. It isn’t really abused."

August 5, 2005, Small Business Times, Milwaukee, WI

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