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 defending doctors and other health care providers, attributed Wisconsin’s standing to state laws that make it difficult to win — or sometimes, to even file — a medical malpractice case.
Wisconsin caps noneconomic damages, such as pain and suffering, at $750,000. That ceiling affects fees paid to plaintiff attorneys, since they often collect a percentage of a court award.
“Most plaintiff firms don’t want to take medical malpractice cases anymore,” Gutglass said. The laws have “created an atmosphere where plaintiffs counsel are very likely to lose.”
Mark Grapentine, lobbyist for the Wisconsin Medical Society, which frequently spearheads efforts to limit medical malpractice suits, declined to comment.
The Journal Sentinel last year reported that a series of state laws limiting who can file medical malpractice lawsuits and how much they can collect has caused the number of suits filed to fall, even though a state-managed malpractice insurance fund has grown to more than $1.2 billion. Last year, 84 malpractice suits were filed in Wisconsin, a record low.
That decline mirrors a national trend.
“Med mal is going away everywhere,” said Bernard Black, a Northwestern University law professor who studies medical malpractice. He noted the drop in malpractice claims is greater in states such as Wisconsin that cap the amount of damages a jury could award in a malpractice case.
About 35 states have some sort of a damage cap.
“If you adopt a damage cap, you get an extra bump,” he said.
Why the drop?
Experts offer a variety of theories for the decline, including lobbying and marketing efforts aimed at limiting lawsuits, improved patient safety and caps on damages that can be paid in malpractice cases.
Ronen Avraham, a University of Texas law professor who studies malpractice, said there is no clear-cut reason for the decline in claims, though he said state laws that make it more difficult to file suits do reduce the number of actions filed. He discounted improved patient safety as a driving force.
“The trend is national; not unique to Wisconsin. … One would hope it is because doctors are getting better thanks to various patient safety programs,” Avraham said in an email. He added in a second email: “Unfortunately, there is no evidence that patient safety is part of the story. So, much of the decline, in bigger cases, is a puzzle.”
In 1992, 56 of every 1 million people nationwide collected on a medical malpractice claim, the federal data shows. That figure fell to 49 of every 1 million in 2004 and to 27 last year.
The decline in payments was more dramatic in Wisconsin — going from 35 per 1 million resident in 1992 to 16 in 2004 and six last year. The claim data covers negotiated payments and court-ordered awards.
People with smaller claims probably are having the toughest time filing suit or collecting on a claim, said Dov Apfel, a Baltimore malpractice lawyer who has worked on cases across the nation, including in Wisconsin.
Expenses incurred by lawyers can run into six figures, and the attorney generally recovers expenses and collects a fee only if the case is won.
“Doctors may be getting away with malpractice that they will never be held accountable for because the cases are not strong enough or the damages not significant enough to get a good lawyer,” Apfel said. “There are legitimate meritorious medical malpractice cases in the $500,000 range or $1 million range that are not being brought.”
Theories abound about why claims are paid in some states more frequently than others and why the number of claims paid out nationally is declining.
“You’ve hit upon one of the great mysteries of the (medical malpractice insurance) business,” said Frank O’Neil, a senior vice president at ProAssurance Corp., the largest provider of the coverage in Wisconsin. “If you’re in the (malpractice insurance) business in 50 states, you’re really in 50 different businesses … each state has widely different judicial climates, even within the states.”
Insurance industry gains
The insurance industry has benefited from the decline.
The malpractice insurance industry has posted an underwriting profit for nine consecutive years. By comparison, in the 28 years prior to 2006, the industry posted an underwriting profit only twice, according to Medical Liability Monitor, a trade publication that follows the industry.
In Wisconsin, plaintiff lawyers point to caps on damages, other laws that limit lawsuits and the state’s mammoth Injured Patients and Families Compensation Fund. The $1.2 billion fund pays all claims of more than $1 million and uses its financial muscle to fight virtually every malpractice claim, including those where a medical error is obvious, the attorneys say.
The fund removes any incentive for doctors, hospitals and their insurance companies to negotiate a claim, since they know their losses cannot exceed $1 million, said Michael End, a Milwaukee plaintiff’s lawyer.
State Insurance Commissioner Ted Nickel, a member of Gov. Scott Walker’s cabinet, declined to be interviewed. His agency oversees the fund and Nickel chairs the fund’s board.
Another cause for the decline in claims could be the extensive lobbying and marketing campaigns that promote “tort reform” — the phrase used to label laws aimed at limiting lawsuits and eliminating frivolous actions, said Michael Matray, editor of the Medical Liability Monitor.
“You can’t really underestimate the power of hot coffee,” he said, referring to the highly publicized 1994 case where a jury awarded a woman $2.9 million after she spilled hot coffee purchased from a McDonald’s on her lap. The case was used by tort reform advocates as a symbol of a court system run amok.
Plaintiff lawyers point out that the woman suffered serious burns and that the jury award was reduced to about $650,000 and the case later settled out of court. Regardless, attorneys say the tort reform campaign has had an effect even in states that have not adopted the measures.
An anti-litigation, pro-doctor attitude can be seen in jury boxes nationwide, said David Damick, a St. Louis plaintiff’s attorney who has worked on malpractice cases in numerous states.
“There’s been a hue and cry that lawsuits are driving doctors out of the state — every state,” Damick said. “It’s absurd. Where are all these doctors going if they’re leaving every state?
The Journal Sentinel analysis showed Wisconsin, Minnesota, Alabama and North Carolina have each been in the bottom 10 in payments in all but two years since 1998. On the other end of the spectrum, New York, Louisiana, Pennsylvania and New Jersey have finished in the top six each year since 2004.
Apfel noted that in New York, a state that has no caps on damages, juries often order large awards for pain and suffering. That reputation can help increase negotiated claim payments or hold them down in states where juries are known to be more conservative.
“If you are an insurance adjuster or a defense lawyer, you’re going to pay more money to settle those cases (in New York) because you know the cases may have more value in trial,” Apfel said.
But how does one explain the similar payment histories in Wisconsin, which has a damage cap, and Minnesota, which does not?
End, the Milwaukee plaintiff’s lawyer, said the answer may be found by simply looking at the attitudes of the jurors in both states.
“They tend to be conservative and let doctors off the hook,” End said. “They don’t like to think that doctors make mistakes.”