Malpractice Cap Rhetoric Isn’t Based on Facts

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

In waging their battle to restore the unfair cap on compensating the most severely injured victims of medical negligence, the Wisconsin Hospital Association (WHA) and its allies have shown a remarkable reluctance to discuss Wisconsin’s actual medical-malpractice environment.

So when concrete data about Wisconsin is injected into the debate over justice for injured victims, Eric Borgerding of the WHA simply dismissed "statistics from dubious sources (that are used) to claim that caps do not reduce insurance premiums or health care costs." Mr. Borgerding made that statement in a viewpoint in the Sept. 2 issue of Small Business Times.

Mr. Borgerding obviously does not like the conclusions of these studies by respected academics, insurance-industry statistical firms like Weiss Reports or the General Accounting Office (in a report requested by the Bush administration).

But however inconvenient for Mr. Borgerding’s case, the most authoritative studies strongly suggest that caps do not hold down either malpractice premiums for doctors or health care costs for patients.

Mr. Borgerding’s dire warnings about "increased costs and reduced access to timely care" cannot be reconciled with the facts. Consider the following:

A grand total of nine jury verdicts exceeded the cap over 10 years, in our state of 5.5 million people.

While Mr. Borgerding claims that Wisconsinites have "a propensity to sue," the fact remains that only 24 malpractice cases went to trial in Wisconsin in 2004.

After the cap of $1 million expired in 1990 and the potential for non-economic damages was potentially unlimited, the number of malpractice claims actually dropped 16 percent by 1994.

Medical-malpractice costs cannot possibly account for soaring health care costs. For example, Wisconsin has the second-highest health care premiums in the nation but the very lowest malpractice costs – amounting to under 40 cents of each $100 spent on health care.

Mr. Borgerding depicts a scary scenario of "skyrocketing" medical malpractice premiums. A very different picture has been painted by the vice president of PIC Wisconsin, the state’s largest medical malpractice insurer, who testified Sept. 8 that the elimination of the cap would result, at worst, in "single-digit" rate increases. The insurance executive added, "I don’t see any reason to panic."

Jack Lohman, a retired CEO, recently pointed out that this "sky is falling" rhetoric by the Wisconsin Manufacturers & Commerce and others will only serve to discourage businesses from coming to Wisconsin.

The debate on damage caps is a hot button topic. If Mr. Bergording wishes to discuss the issue, he should acknowledge the facts. There has been no study which suggests the elimination of caps will have any discernable impact on malpractice premiums or health care costs. That isn’t rhetoric. That is the fact.

The Supreme Court decision repealing the cap on pain and suffering caps is essential for justice, especially for those severely harmed by medical malpractice. The repeal restores justice for all, without posing any of the frightening risks contrived by the Hospital Association and its allies.

Jerome Hierseman is an attorney at Gray and End LLP, 600 N Broadway St., Suite 300, Milwaukee. He can be reached at (414) 224 1221.

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