Category Archives: Wisconsin

December 2017 Newsletter

Year-end report sheds light on “Judicial Hellholes” The American Tort Reform Association (ATRA) end-of-year “Judicial Hellholes” report offers a public glimpse at the most unfriendly jurisdictions for those defending themselves against civil litigation, including medical liability lawsuits. At the top of the list this year was Florida, where once-strong medical liability reforms have been continuously rolled back at the expense of patients seeking affordable and accessible care. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes…” said American Tort Reform Association president Tiger Joyce. Also high on the list was St. Louis, where “antiquated rules have made it a favorite of personal-injury lawyers shopping for big-money verdicts” resulting in $300 million in awards since 2015. However, recent changes in state government, including a governor in support of changes to the liability system, do hold promise for much-needed reform in the coming year. To read more about ATRA’s “Judicial Hellholes” executive summary and report on the where physicians and defendants fare the worst when it comes to…

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High Court’s Contempt for Lawmakers’ Authority, Lawsuit Rackets Place Florida atop Latest ‘Judicial Hellholes’ List

WASHINGTON, D.C., December 5, 2017 – The American Tort Reform Foundation issued its 2017-2018 Judicial Hellholes® report today, naming courts in Florida, California, Missouri, New York, Pennsylvania, New Jersey, Illinois and Louisiana among the nation’s “most unfair” in their handling of civil litigation. “With both this annual report and a year-round website, our Judicial Hellholes program since 2002 has been documenting troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” began American Tort Reform Association president Tiger Joyce. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes, even as authorities have begun to crack down on some of the lawsuit industry’s most obviously fraudulent rackets. “Ranked #2 is perennial hellhole California, where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing,” Joyce explained. “The good news is the U.S. Supreme Court in June reversed a…

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July 2017 Newsletter

  Ailing liability system not fair to deserving patients Even as the prospects for larger efforts to reform our nation’s health care system remain uncertain, there’s hope that medical liability reform could make incremental progress on reducing costs and restoring fairness to deserving patients. An editorial this month highlights the progress made by the House of Representatives in passing the Protecting Access to Care Act in order to align a patchwork of state liability laws and ensure full compensation of medical bills and lost wages to patients who are the victims of medical negligence. Unfortunately, personal injury attorneys continue to stand in the way of full passage of medical liability reform by the Senate. According to the editorial, “fairness is elusive,” particularly to patients, who are subject to a system that adds billions of dollars in health care spending each year, lost to defensive medicine and sky-high premiums that reduce access to care. With the ball now in the court of the Senate, “lawmakers who say they’re committed to addressing ‘affordable’ health care need to stop dancing around malpractice tort reform and address what’s grown into a significant, if not inordinate, cost driver,” the editorial concludes. To read more about…

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Wisconsin’s cap on medical malpractice awards unconstitutional, courts rules

Ruling that Wisconsin’s $750,000 cap on medical malpractice claims is unconstitutional, an appellate court said Wednesday that a Milwaukee woman who lost all four limbs should collect the $16.5 million for pain and suffering awarded to her and her husband. “We conclude that the statutory cap on non-economic damages is unconstitutional on its face,” Judge Joan Kessler wrote in the 19-page unanimous opinion by the three-judge First District Court of Appeals panel. Kessler added that “Wisconsin’s cap on non-economic medical malpractice damagesalways reduces non-economic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.” The appeal involves the $25.3 million award given in 2014 to Ascaris Mayo, a 57-year-old mother of four who had her limbs amputated in 2011 after a Strep A infection — the kind that causes strep throat — went undetected, leading to septic shock. The damage caused by the infection led to the amputations.  Wisconsin law caps non-economic damages in medical malpractice cases at $750,000 but does not put a ceiling on the amount that could be awarded for economic damages, such as medical costs, which in Mayo’s case was awarded at $8.8…

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Malpractice premiums flat in 2015, but changes could be ahead

Physicians paid about the same in liability insurance premiums in 2015 as in 2014, and analysts don’t see costs changing anytime soon. A nationwide survey of insurers by the Medical Liability Monitor shows that 71% of insurance premiums did not change this year, while 17% of rates rose and 12% fell. Internists experienced an average premium increase of 0.6% in 2015, while general surgeons saw a 0.2% average rate decrease, and ob.gyns experienced an average 0.5% rate increase. The static premium market is being largely driven by the low number of lawsuits filed by patients and family members in recent years, said survey coauthor Paul Greve Jr., executive vice president/senior consultant for the Willis Health Care Practice, a global risk management consultant firm. “It’s amazing to see the continuing stability in claim frequency,” Mr. Greve said in an interview. “The claims counts are just not rising. Its great for the industry, and it’s great for physicians, but it is puzzling because you wonder what has caused what amounts to a sea change in the attitudes of the general public toward malpractice litigation such that the claim counts were drop off.” Premiums continue to vary geographically. Southern Florida internists for example,…

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Wisconsin last among states for malpractice claim payments, analysis shows

Wisconsin doctors paid fewer medical malpractice claims per capita last year than their peers in any other state — and physicians here are consistently at the bottom nationwide when it comes to paying such claims, according to a Milwaukee Journal Sentinel analysis of federal data. Only six of every 1 million Wisconsin residents collected a medical malpractice claim last year, compared with a national rate of 27 per 1 million of population, according to the analysis of records filed with the National Practitioner Data Bank. That amounted to 37 total payouts in Wisconsin last year. The Wisconsin payment rate was last among the states in three of the past five years, and it has ranked 47th or lower 20 times since 1992, according to the analysis. Meanwhile, the analysis shows, the number of claims paid to victims of doctor error has been dropping in Wisconsin and nationally. “People ought to be worried about a system that doesn’t police bad actors,” said Ann Jacobs, a Milwaukee attorney and president of the state trade group for plaintiff’s lawyers. “Does anybody really believe that only 37 doctors (in Wisconsin) made mistakes?’ she added. James Gutglass, a veteran Milwaukee defense lawyer who specializes in…

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Facing legal roadblocks, medical malpractice claims dwindle

The number of medical malpractice claims fell to a record low in Wisconsin last year as the state-managed insurance fund for the doctors grew to more than $1.2 billion, newly released records show. Only 84 medical malpractice suits were filed in Wisconsin last year — down from 140 the previous year — according to new statistics compiled by the Director of State Courts. For comparison, there were 294 actions filed in 1999. “Ninety-nine percent of lawyers … just don’t want to take medical malpractice cases,” said Michael End, a veteran Milwaukee medical malpractice attorney. “The cases are very expensive, very time consuming and so many are lost that ought to be won.” The state Medical Mediation Panels received 118 complaints last year — the lowest number in the agency’s history — down from 161 the previous year, agency administrator Randy Sproule said Friday. By comparison, there were 410 requests for mediation filed in 1987, the first full year of the agency’s operation. State law requires that plaintiffs file with the mediation panel before they can bring a suit in court. About one-third of the mediation complaints filed in 2013 and 2014 were done without lawyers, Sproule said. The Milwaukee Journal…

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Malpractice Insurance Premiums Nudge Down Again

For the seventh straight year, malpractice insurance premiums have decreased for three bellwether specialties, and even for sticker-shocked obstetrician-gynecologists on Long Island in New York, according to an annual premium survey released this week by Medical Liability Monitor (MLM). Rates quoted by a malpractice carrier called Physicians’ Reciprocal Insurers for obstetrician/gynecologists in the New York counties of Nassau and Suffolk, east of Queens, went from $227,899 in 2013 to $214,999 in 2014, a decrease of almost 6%. However, this rate continues to be the highest quoted by any carrier in any state for this specialty. Overall, malpractice premiums decreased on average by 1.5% in 2014 for obstetrician/gynecologists, internists, and general surgeons, which is slightly less than the 1.9% decrease in 2013. By specialty, rates fell 1.6% for internists, 1.3% for general surgeons, and 1.7% for obstetrician/gynecologists. Since 2008, overall rates for the three specialties have fallen by 13%, MLM said. To many physicians, this slow decline represents little comfort because it was preceded by an era of rate spikes: Premiums increased more than 20% in both 2003 and 2004, and about 9% in 2005 (rate increases in 2006 and 2007 were less than 1%). “We haven’t come down as far…

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‘Apology Bill’ Shields Health Care Providers’ Apologies from Malpractice Suits in Wisconsin

Apologies by health care workers are protected from being used against them in court by a new law enacted in Wisconsin, which is one of more than 35 states to enact such a law. The law, Assembly Bill 120, was signed by Governor Scott Walker on April 8 in Madison. The intent of the law is to make statements of apology or condolence by health care providers inadmissible as evidence. The legislation could foster more conversations between health care providers and patients/family members when such interaction is needed most. The bill includes statements, gestures, and conduct that express “apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or his or her relative or representative.” These type of statements will not risk being admissible in civil action, administrative hearing, disciplinary proceedings, mediation, or arbitration as evidence of liability. Speaking for the Wisconsin Medical Society, Society President Richard A. Dart, MD, said, “The Society has been a strong proponent of legislation that promotes conversations between a physician and a patient or patient’s family following an unexpected or a negative outcome. AB 120 will foster more patient-physician interactions exactly when they’re needed most.” This law protects both apologetic statements…

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‘I’m Sorry’ Bill Gets Assembly Approval (UPDATE)

The state Assembly approved on a voice vote Tuesday on a bill that would let doctors and other medical providers apologize or express fault for botched medical procedures without having to worry their words would be used against them in court. Similar “I’m sorry” bills have gone before the Legislature several times in the past few years, only to meet with opposition from critics who contend that legal immunity should not be extended to those who admit fault, liability or responsibility for a medical mishap. The author of the current version, Erik Severson, a Republican from Star Prairie and a doctor, said the proposal is meant to ensure medical providers can have “honest conversations” with patients when things go awry. “If something happened in a surgery or something happened in the ER, or a patient just dies of natural causes, people want to have a true, honest conversation,” Severson said, “instead of having a guarded conversation where their words right now might be used to say, ‘You are guilty of malfeasance or malpractice in this case.’” Assembly Democrats proposed an amendment that would only prevent doctors and other medical providers from being held liable for statements of apology, sympathy and…

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