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 Sentinel last year reported that a series of state laws limiting who could file medical malpractice lawsuits and how much they collect has caused the number of suits filed to fall as the insurance fund grew larger. Awards for noneconomic damages, such as pain and suffering, are capped at $750,000 in Wisconsin.
A unique state law limits who can file a medical malpractice wrongful death suit in Wisconsin. Only spouses and minor children can sue for loss of companionship in those cases — 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.
Sen. Nikiya Harris Dodd (D-Milwaukee) has said she would likely sponsor a bill this year that would allow parents of children who die as the result of medical malpractice before age 27 to file a wrongful-death suit.
Meanwhile, the insurance companies that provide medical malpractice insurance continue to post strong profits — a trend that dates back to 2005, said Michael Matray, editor of Medical Liability Monitor, a Chicago-based trade journal that follows the malpractice insurance agency.
“This is the longest soft market we’ve ever had,” Matray said, explaining that in a soft market, insurance profits are up and premiums charged tend to stay flat or decrease.
ProAssurance Casualty Company, which writes more malpractice insurance in Wisconsin than any other firm, posted national net income of $81.4 million last year, up from $72 million the prior year, according to reports filed with state regulators.
Meanwhile, premiums paid by doctors for coverage by the state Injured Patients and Families Compensation Fund are scheduled to fall by an average of 34% this summer — the second consecutive year that rates are being lowered. The fund, which is the largest such fund in the country, has nearly doubled in size since 2009, when it held $645 million in assets. The fund paid out $13 million on three claims during the 12-month period that ended June 30, 2014, and an additional $6.3 million in the second half of last year.
Ted Nickel, who as state insurance commissioner chairs the board that oversees the fund, declined to be interviewed for this story.
Matray said medical malpractice lawsuits are down throughout the country because of laws that cap potential awards, the expense of bringing a suit and the tendency of juries to side with physicians, who win more than 90% of the cases that go to trial.
“Plaintiff attorneys are only taking the slam dunks,” Matray said.
Plaintiff lawyers are generally paid a contingency fee — that is, they collect a portion of the winnings in a case — and cover the cost of the upfront expenses incurred to bring a case. In contingency cases, lawyers are not paid if they lose the case.
Medical malpractice cases are expensive to bring, often costing more than $100,000 in expenses to cover items such 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 End, the Milwaukee plaintiff’s attorney.
Michael Malone, a Milwaukee defense lawyer, declined to predict when — or if — the decline in medical malpractice suits would reverse.”If (plaintiff lawyers) feel they could make money for themselves and their clients, they’ll file,” he said.
Frank O’Neil, a ProAssurance Corp. senior vice president, brushed off the complaints of plaintiff lawyers, saying they are simply making a business decision by rejecting cases.
“It’s a little disingenuous when you see all the advertising (plaintiff lawyers are) doing,” O’Neil said. “It’s hard for me to imagine that they’re hurting.”
Though the number of medical malpractice suits filed across the country is down, it appears that cases that provide the opportunity for a huge financial award are still being filed, O’Neil said.
“Maybe instead of going through the expense of filing a lawsuit against six doctors in the hope of finding a needle in the haystack,” attorneys are taking better aim and filing a single large suit, O’Neil said.
Last year, a Milwaukee County jury awarded a 53-year-old mother of four $25.3 million after finding she lost all four limbs as the result of malpractice. The award is being appealed.
Mark Grapentine, lobbyist for the Wisconsin Medical Society, said having a large insurance fund and laws that limit medical malpractice suits is good for the doctors and patients.
“It is important that physicians and the medical community have the opportunity to practice health care in the way they” see as best for the patient, Grapentine said adding he often hears from medical associations in other states. “They wish they had as stable an environment as we do in Wisconsin.”