Wisconsin has experienced a drop of more than one-half in the number of medical malpractice lawsuits filed since 1999: in 2013, only 140 medical malpractice lawsuits were filed in Wisconsin. While the Wisconsin health care industry groups contend that the drop in medical malpractice filings represents better medical care in the state, Wisconsin medical malpractice lawyers argue that draconian medical malpractice tort reforms (barriers) have resulted in Wisconsin medical malpractice victims being deprived of their right to fair and just compensation for their injuries and harms caused by medical negligence.
The Wisconsin health care industry’s contention of “better care” as the reason for fewer medical malpractice filings may be dispelled, in part, by statistics from the National Practitioner Data Bank that show that there was an increase from 38 adverse actions (due to medical errors, loss of privileges, and disciplinary actions) against Wisconsin doctors in 2003, to 105 adverse actions in 2013.
Has Wisconsin’s Medical Malpractice Tort Reform Measures Gone Too Far?
One measure that may indicate that Wisconsin medical malpractice tort reform efforts have gone too far, thereby greatly harming Wisconsin medical malpractice victims, is the bloated balance in the state-operated Wisconsin Injured Patients and Families Compensation Fund that is in excess of $1.15 billion (which is more than all of the money paid out by the Fund in its 39-year history). The Fund was created in 1975 in response to unjustified fears that medical malpractice insurance premiums would become prohibitively expensive if the Fund was not created, which would cause doctors in Wisconsin to flee the state.
Private medical malpractice insurers are protected from medical malpractice verdicts in excess of $1 million because the Fund is liable for the amount greater than $1 million; this acts as an incentive to private medical malpractice insurers to doggedly fight serious medical malpractice claims even when the malpractice is clear, because their exposure for payment is limited to $1 million. Add to that the statistic from an insurance industry survey that found that medical malpractice defendants won 94.47% of all medical malpractice cases that went to verdict nationwide from 2008 to 2012.
The result? Wisconsin medical malpractice victims find it almost impossible to find malpractice lawyers willing to represent them in the smaller cases (Wisconsin medical malpractice plaintiffs won medical malpractice jury awards in 4 out of 18 cases in 2013; the largest award was for $1.8 million, which was reduced to $250,000 because of Wisconsin’s limit on damages involving state employees).
Wisconsin medical malpractice payouts are the lowest in the United States — while the national average of paid medical malpractice claims fell 39% from 2003 to 2013, Wisconsin experienced a much more dramatic decrease: 66%.
Another of Wisconsin’s medical malpractice “reforms” restricted those entitled to sue for loss of companionship in a medical malpractice death case, to spouses and minor children only; in all other Wisconsin wrongful death claims, adult children may sue for their loss of companionship.
How important is this distinction? In a situation involving an adult child of a woman who died due to emergency room medical malpractice (an emergency room doctor called the adult child three years after the incident, to advise of his malpractice that occurred when a breathing tube was mistakenly placed in her mother’s esophagus), she and her two adult siblings (one was 18 years old at the time of her mother’s death due to medical malpractice) are precluded from seeking compensation due to their mother’s death — however, if their mother’s death was caused by a drunk driver or other non-medical negligent wrongdoer, they would have been entitled to seek compensation from the drunk driver (or other non-medical wrongdoer) for their loss of companionship.
It may be too late for Wisconsin medical malpractice victims to receive fair and adequate compensation for their injuries and losses caused by medical malpractice in their state, due to infringing “reforms,” but victims of medical malpractice in other U.S. states must be constantly vigilant and proactive in protecting their rights from being trampled on by the powerful health care industry in their states.
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