The Poster Child for Medical Malpractice Injustice

If you’re looking for a model of how to deprive people of their rights after they’ve suffered from medical malpractice, go to Wisconsin. As reported last week in the Milwaukee Journal Sentinel, companies that provide medical malpractice insurance in that state are reaping huge profits while the number of medical malpractice claims have fallen to record lows because lawyers can’t afford to take cases that are so burdened by legal handcuffs.

Only 84 medical malpractice suits were filed in Wisconsin in 2014, down from 140 in 2013. In 1999, 294 claims were filed. But last year, the state-managed insurance fund for doctors grew to a bountiful $1.2 billion.

According to one longtime medical malpractice attorney in the state, “Ninety-nine percent of lawyers … just don’t want to take medical malpractice cases. The cases are very expensive, very time consuming and so many are lost that ought to be won.”

Why are things so obviously upside down in Wisconsin?

Because state law prohibits harmed patients from filing a lawsuit in court until after they have filed with a state Medical Mediation Panel. About 1 in 3 mediation complaints in 2013 and 2014 were filed without lawyers.

Because state laws limit who may file medical malpractice lawsuits and how much they may receive in damages. Judgments for noneconomic damages, such as pain and suffering, are capped at $750,000 in Wisconsin.

Because state law limits who may file a medical malpractice wrongful death suit. “Only spouses and minor children can sue for loss of companionship in those cases,” reported the Journal Sentinel, “and parents who lose an 18-year-old child to medical error are locked out of the court system, as is a child of the same age who loses a parent.”

The mediation panels received 118 complaints in 2014, the fewest in the agency’s history (there were 161 in 2013).

So the number of suits filed decline as the insurance fund grew. The company that underwrites more malpractice insurance in Wisconsin than any other posted national net income of $81.4 million in 2014, an increase of more than $9 million from 2013.

And doctors are getting a better deal, too; their premiums for coverage by the state Injured Patients and Families Compensation Fund are scheduled to decline an average of 34% in a few months, the second consecutive year that rates have fallen. Wisconsin’s fund is the largest of its kind in the U.S., nearly doubling its assets since 2009, when it had $645 million.

But it has paid out only $13 million on three – three! – claims during the 12-month period ending June 30, 2014. It paid harmed patients only $6.3 million in the second half of 2014.

Is anyone surprised that Ted Nickel, the state insurance commissioner who chairs the board that oversees the fund, declined to be interviewed by the Journal Sentinel?

Michael Matray, editor of a malpractice insurance trade journal, told the newspaper that medical malpractice lawsuits are down throughout the U.S. because so many states have laws that cap potential judgments, because it’s so expensive to bring a lawsuit and because juries tend to side with physicians, who win more than 9 in 10 cases that go to trial.

“Plaintiff attorneys are only taking the slam dunks,” he said.

As we’ve explained in previous blogs, plaintiff lawyers generally are paid only when the verdict goes their clients’ way – that is, they receive a portion of the judgment, so they must cover the cost of all the expenses upfront. The Journal Sentinel said that such expenses can exceed $100,000, for such things as hiring experts to review the thousands of pages of medical records.

“Who is going to spend $130,000 and 500 hours of their life for a case that has little chance of winning?” said one plaintiff’s attorney.

The saddest thing is that the chances of winning have so little to do with the merits of the case, especially when the state stacks the deck against you.

If there’s anything remotely hopeful here, it’s that one Wisconsin state senator has said she probably would sponsor a bill this year to allow parents of children younger than 27 who die from medical malpractice to file a wrongful-death suit.

It’s better than nothing, but not much.

Read the Journal Sentinel’s investigation last year into the impediments of bringing legitimate claims of medical malpractice to account.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm
Contact Information