Posted on 07/15/2005 4:04:36 PM PDT by Diana in Wisconsin
Republican lawmakers are promising fast action to reverse the effects of a state Supreme Court ruling that overturned the state's caps on malpractice awards for non-economic damages such as pain and suffering.
"This is another example of an activist court overstepping its authority," Assembly Speaker John Gard, R-Peshtigo, said in a statement following the court's ruling on Thursday.
"Fixing this ruling will be a top priority for Assembly Republicans."
The court determined that the Legislature's rationale for putting an upper limit on non-economic damages was too broad and speculative to accept, and ruled the law violated the Wisconsin Constitution's equal protection guarantees.
The 4-3 ruling was decided by the three justices traditionally viewed as liberals - Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and Louis Butler - plus Justice Patrick Crooks.
Crooks usually votes with the court's conservative majority of Justices Jon Wilcox, David Prosser and Pat Roggensack.
Rep. Terri McCormick, R-Appleton, specifically blamed Butler, who was appointed to the high court by Democratic Gov. Jim Doyle last year, for the decision.
Butler, who replaced conservative Justice Diane Sykes, "has blown apart the balance that has existed since the Injured Patients (and Families) Compensation Fund," which pays malpractice claims, "was created back in 1987," McCormick said in a statement.
The Wisconsin ruling throws out a judge's decision to reduce a jury award to Matthew Ferdon of Abrams, whose right arm was permanently disabled when he was born in 1996.
"This is a huge victory for Matthew. It's a huge victory for the jury system. It's a huge victory for Wisconsin," said attorney Vincent Petrucelli, who represented Matthew.
The Supreme Court said its decision does not strike down all caps under Wisconsin law in medical malpractice cases.
Rather, its decision applies only to those for noneconomic damages, awards meant to compensate for mental distress, loss of enjoyment of normal activity, and loss of society and companionship. Just last year, the court upheld a similar limit on wrongful death awards in medical malpractice cases.
But Republicans - as well as those in the health care industry - seized on the ruling and warned that Wisconsin residents could soon lose access to medical care because of skyrocketing malpractice insurance costs. President Bush and Republicans in Congress want to enact federal limits on noneconomic damages.
"There is a reason President Bush is championing" those limits, McCormick said. "Wisconsin citizens have been put in a terrible situation. Trial attorneys will have a field day at patients' expense and physicians will end up closing their doors."
While Bush has pushed for limits on malpractice awards because he contends that rising insurance costs limit patient access to care, there has also been a political component to those arguments because trial lawyers traditionally have been among the biggest donors to Democrats.
David Skoglind, president of the Wisconsin Academy of Trial Lawyers, hailed the decision.
"This is a decision that balances the scales of justice after 10 years of watching our state's legal system be blatantly tilted in favor of insurance companies against ordinary citizens," he said in a statement released by the academy.
Skoglind said that "the cap prevented Wisconsin's Injured Patients and Families Compensation Fund from living up to its name," adding that the state-run fund has more than $700 million in assets but paid out only seven claims in the 2004-2005 fiscal year.
But Eric Borgerding, senior vice president for the Wisconsin Hospital Association, warned that the ruling could jeopardize patients' access to medical services.
He noted that Illinois has just adopted noneconomic damage caps largely due to a malpractice insurance crisis in the state.
"We have members who have hospitals in both Illinois and Wisconsin, and their premiums in Illinois were five times what they are here," he said.
Borgerding said the impact of the ruling will likely not be felt immediately, "but this could be a disaster in one or two years."
Borgerding said the ruling "was structured in a way that essentially precludes either review by the (U.S.) Supreme Court or a legislative remedy" short of amending the State Constitution.
In 1995, the Legislature approved a $350,000 limit on noneconomic damages for medical practice awards. The law also included an annual adjustment on the cap for inflation. The limit is currently $445,775.
Matthew, now 8, was injured when he was born, leaving him with a right arm that will never function properly. During delivery, the doctor pulled on Matthew's head, leaving him with an injury called obstetric brachial plexus palsy. That left his right arm paralyzed and deformed.
His parents sued, and Matthew was awarded $403,000 for future medical expenses and $700,000 in noneconomic damages. His parents received $87,600 for the personal care they will render for Matthew until he is 18.
But a Brown County Circuit Court reduced Matthew's award for noneconomic damages to comply with the state-imposed limits, which had increased to $410,322 by 2002 when the verdict came down.
Matthew's family appealed and an appeals court upheld the decision. The Supreme Court overruled that decision and sent the case back to circuit court.
Abrahamson wrote for the majority that the court is cautious about substituting its opinion for the will of the Legislature. Still, she said, to find a rational basis for the cap on non-economic damages would "amount to applying a judicial rubber stamp to an unconstitutional statute."
But Prosser, a former Republican lawmaker, wrote in his dissent that the Legislature implemented the caps as part of a broad strategy to keep health care affordable. The ruling lays the ground work to undermine other caps, he said.
Is it Kentucky? That the GOP are challenging another Court abo;ut its demand they raise taxes? Seems like we have a trend brewing here of Republicans in Legislatures starting to reassert their constitutional roles.
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