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What the Wisconsin Supreme Court Can Teach the U.S. Congress

[Column 362, November 7, 2005] | Archived Columns

By Ken Suggs*

The state of Wisconsin recently became the 14th state to strike down as unconstitutional arbitrary limits on the compensation juries may provide for medical malpractice victims—limits some call "tort reform."

The Wisconsin Supreme Court called the state's cap on non-economic damages "unreasonable and arbitrary" because it negatively impacts the most severely injured patients and discriminates against children, seniors, stay-at-home parents, and others who are not significant wage earners.

In a lawsuit, a jury can award two types of damages. Economic damages are reimbursements to the victim for out-of-pocket expenses like medical bills, lost wages, the cost of adding a wheelchair ramp to a house, or funeral expenses paid by surviving family members.

Non-economic damages are the only compensation for the injury or wrongful death itself, as opposed to reimbursement of the victim for out-of-pocket expenses.

Those pushing to limit the authority of juries who have heard all the facts include lobbyists for the insurance industry and drug companies. They dismiss non-economic damages as "pain and suffering."

In truth, non-economic damages compensate victims for real losses that are not easily quantified by a dollar amount. This compensation covers the most severely injured patients, such as people who are paralyzed and can't use the bathroom without assistance, or a child who is brain damaged and will never have a chance to attend school, get married or work.

Wisconsin had capped non-economic damages at $350,000, no matter how severe the injury or how horrible the mistake by the doctor, hospital or drug manufacturer.

In striking down that law, the Court wrote that caps shift the burden of medical negligence from "insurance companies and negligent health care providers to a small group of vulnerable, injured patients," and do not even achieve their purported goal of forcing the insurance industry to lower premiums.

Despite the facts highlighted by the Wisconsin case, the U.S. House of Representatives passed a bill over the summer (H.R.5) that would enact just such an "unreasonable and arbitrary" cap nationwide for victims in medical malpractice cases and in cases where drug companies knowingly marketed dangerous or deadly drugs.

Adding insult to injury, the congressional bill does nothing to force the insurance industry to lower malpractice premiums for doctors.

Congress should listen to what the Wisconsin Court said in its decision:

"Victims of medical malpractice with valid and substantial claims do not seem to be the source of increased premiums for medical malpractice insurance, yet the $350,000 cap on noneconomic damages requires that they bear the burden by being deprived of full tort compensation."

"...a $350,000 cap on noneconomic damages is arbitrary and creates an undue hardship on a small unfortunate group of [injured] plaintiffs … many of whom are children."

Non-economic compensation is often more important to those who do not work outside the home, such as the children, seniors and homemakers. The "worth" of a homemaker's work inside the home or the "worth" of a child's life is not easily measured by a dollar amount, and can only be compensated through non-economic damages.

Consider what would happen if the congressional medical malpractice bill were to pass. Two patients go in for surgery. Both are killed by a preventable and egregious mistake by the hospital. One is a child. The compensation for his or her family—the compensation for his or her life—would be capped at $250,000, even lower than the cap the Wisconsin Court threw out.

The other patient is a CEO of an insurance company (an insurance company CEO's average salary is over $11 million per year). The compensation for his or her family—the compensation for his or her life—would be in the tens of millions of dollars. Is that justice? The Wisconsin Supreme Court says it's discrimination.

Congress should recognize that as well.

Consider the real case of 5-year-old Shay Maurin of Washington County, Wisconsin. Shay died from diabetes after the local clinic emergency room ignored signs and symptoms of diabetes. Instead of performing a 58-cent glucose finger stick test, the emergency room sent her home. Shay died the next day from diabetic ketoacidosis, a deadly condition that could have been prevented with insulin shots. Under the bill before Congress, the value of Shay's life would be "capped" at $250,000.

The irony is that caps on damages actually only affect the most meritorious cases - lawsuits like the one brought by the Maurin family—not frivolous lawsuits. Frivolous lawsuits should receive nothing, but juries should be allowed to decide what is appropriate compensation for the most severely injured victims of medical malpractice.

*Ken Suggs, president of the American Association for Justice, is a partner in the Columbia, SC, law firm of Janet, Jenner & Suggs.