Wisconsin appeals court rejects legal changes that GOP seeks nationally

kessler-203x300Even as congressional Republicans advance their counter-factual campaign to strip patients who have been harmed while seeking medical services of their rights to seek legal redress, another state appeals court has rejected key GOP arguments about medical malpractice lawsuits.

An appellate court in Wisconsin has declared unconstitutional that state’s $750,000 cap on non-economic damages, reinstating a jury’s decision that a Milwaukee woman and her husband should be paid $16.5 million for their pain and suffering after emergency doctors failed to inform her fully about the severity of a strep infection she had and that led to the amputation of her arms and legs.

The jury assessed total damages against the doctors and their insurers of $25.3 million, including $8 million for the medical and other care the 57-year-old mother of four will require for the rest of her life. But the defendants appealed the total, arguing the couple, under Wisconsin law, should get no more than $750,000 for non-economic harms like pain and suffering.

But three appellate judges in Milwaukee disagreed. With Judge Joan Kessler writing for the panel, the appellate court ruled that the state caps forced those patients who had suffered the greatest medical harms to bear the brunt of lawmakers’ unfounded efforts to deal with a state “crisis” with malpractice insurance for doctors and hospitals.

The appellate judges found no evidence of such severe circumstance, and they said harmed patients should not be deprived of constitutional rights in state attempts to mollify doctors, hospitals, and insurers. They also noted that non-economic caps had not been shown to keep doctors practicing in Wisconsin or to improve the accessibility, quality, safety, or delivery of medical care.

The Wisconsin decision, which may end up before the state’s supreme court, echoes a recent ruling from the Florida Supreme Court. The Sunshine State’s justices also have rejected as unconstitutional noneconomic damage caps in medical malpractice cases, while also finding an absence of a malpractice insurance crisis.

In my practice, I see not only the harms that patients suffer while seeking medical services but also the economic havoc they must struggle with, often for a lifetime, due to wrongful or negligent acts by doctors and hospitals. Independent, authoritative voices have decried congressional Republicans’ so-called “tort reforms,” finding no real evidence to support them or their falsely proclaimed public benefit. The House has passed some of the wrong-minded measures and sent them to the Senate. They should get tossed there into a legislative trash can.

Milwaukee Journal Sentinel photo by Rick Wood

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