I.
General Information
Medical malpractice claims are usually among the most hard
fought and expensive of all types of personal
injury cases. Almost all malpractice claims
against health care providers require expert
testimony by physicians, nurses or other
professionals in the same field of specialty as
the defendant. Procedural and substantive law
provides that a sufficient case is not
established simply by submitting the injured
patient’s story to the jury. Instead, expert
witnesses must be hired to review all the
records of past treatment, scrutinize the care
that was provided, and testify whether the
defendant was causally negligent. The standard
of care that is required of all Wisconsin health
care providers is defined as the degree of
skill, care, and judgment which reasonable
healthcare providers who practice the same
specialty as the defendant would exercise in the
same or similar circumstances, having due regard
for the state of medical science at the time the
plaintiff was treated. The burden of proof is on
the patient to convince the jury by expert
testimony that the defendant was negligent by
failing to live up to that standard, and that
such failure was a cause of injury.
The requirement of expert testimony creates
the expense problem. The last thing most
physicians or other health care
professionals want to do in their free time
is to review claims against their
colleagues, and to testify against them.
Such activity is often seen as traitorous,
and as potentially raising the insurance
premiums for all similarly situated
professionals. It has long been said that
there is a so-called "conspiracy of silence"
in regard to the mere mention of malpractice
among health care professionals. It is
obvious that physicians who are acquainted
with each other, live in the same community,
or are members of the same professional
associations would be reluctant to criticize
each other publicly. Such physicians will
often refuse to speak to malpractice victims
or their attorneys about the merits of their
claims against other local physicians. For
this reason, patients are usually resorted
to consulting physicians from far away, who
have no organizational or personal ties to
the defendant, for the expert testimony
required in a lawsuit.
In addition to the difficulty encountered by
injured patients in locating willing expert
witnesses, the matter of cost is a
deterrent. Competent, successful, and busy
medical practitioners ordinarily make an
excellent living practicing their trade.
They enjoy what they are doing in their
offices or hospitals. They often are
compensated at an annual rate well into six
figures. A lawyer’s office or courtroom is
foreign territory to them, fraught with the
dangers of the unknown. They are loath to
wander there. If they do venture forth into
forensic medicine at all, they customarily
charge at an hourly rate that would shock
the conscience of the uninitiated (i.e., it
is not unusual for a malpractice plaintiff's
attorney to have to pay $500 per hour or
more to obtain expert review of records and
testimony by qualified physicians).
Mainly because of the high cost of eliciting
expert testimony, the total out-of- pocket
expense, excluding attorney’s fees, of
preparing a medical malpractice case from
start to finish is usually not less than
$50,000.00.
Most experienced personal injury attorneys
charge a contingent fee for medical
malpractice cases, with the percentage
ranging from 25% - 40%, depending on the
stage at which the case is resolved. The
fees are usually taken from the gross
recovery, and are in addition to
reimbursement for disbursements discussed
above.
It is easy to see why malpractice cases
with minor injuries simply cannot be pursued
economically, no matter how strong the
liability case may be. If we assume a
$100,000 recovery, a 33 1/3% attorney fee,
and $50,000 in costs, the patient would have
a net recovery of only $16,667 [$100,000
minus $83,333]. Personal injury attorneys
who specialize in malpractice cases
customarily decline to prosecute any case
unless there is a verdict potential of
substantially more than $100,000.
The verdict trend of the last few decades
reveals that the percentage chance of recovering
money by a person claiming medical malpractice
is less than 50%. In fact, the most recent
state statistics from the Medical Mediation
Panels show only three of 21 verdicts in 2005
were decided in favor of the plaintiff (i.e.,
86% were defense verdicts). The current
jury sentiment against personal injury
claimants, fostered by insurance companies,
heightens in medical malpractice cases. When
this reality is coupled with the cost of
prosecution, it becomes evident that only a very
few medical malpractice cases meet the criteria
for a good chance of a substantial net recovery.
There are numerous powerful defenses conjured up
by health care providers to defeat claims of
malpractice. These include the well-intentioned,
good-doctor-should-not-be-sued defense; the
recognized alternative treatment defense; the
no-causation defense that the natural
progression of a pre-existing condition would
have led to the same result, even if due care
had been administered; and the
error-in-judgment-does-not-equal-malpractice
defense. Doctors and hospitals have easy
access to defense experts who are eager to
thwart claims.
For all these reasons, malpractice insurers
often make no settlement offers at all when they
believe that they have a chance to win at trial.
They operate under the assumption that by making
it difficult for one plaintiff to recover, no
matter how legitimate the claim, the next
plaintiff may be deterred from prosecuting his
or her case.
Only the most egregious medical malpractice
liability cases involving clear liability and
catastrophic damages are now economically
feasible from the perspective of plaintiffs’
attorneys. Anyone who says otherwise has not
been there or done that.
II. Legal
Information
On July 14, 2005, the Wisconsin Supreme Court
ruled that the $350,000 cap on non-economic
damages in medical malpractice cases, Wis.
Stats., § 893.55(4)(d) violated the equal
protection clause of the Wisconsin Constitution
and was therefore void.
Ferdon v. Wisconsin Patients Compensation Fund,
2005 WI 125, 284 Wis.2d 573, 701 N.W.2d 440
(2005). This decision removed the cap on
non-economic damages in medical malpractice
cases that do not result in death.
Thereafter, the Wisconsin legislature
enacted a new cap for damages in medical
malpractice cases, which was signed by the
governor into law effective April 6, 2006,
creating a maximum limit of $750,000 for
non-economic damages. See Wis. Stat. §§
655.017 and
893.55(4)(d). If the malpractice
results in death, the old $350,000 cap
applicable under Wis. Stat. § 895.04 still
applies, subject to inflationary additions.
See Wis. Stat. § 893.55(4)(f).
On July 7, 2006, the Wisconsin Supreme court
overruled in part its earlier decision in
Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28,
682 N.W.2d 866 and held that that the cap on
non-economic damages in medical malpractice
cases that result in death should separately
be applied to: (1) the two types of
pre-death claims: (a) to the estate of the
decedent for the pain and suffering of the
decedent, and (b) to the surviving spouse
for the loss of society and companionship of
the decedent; and (2) the loss of society
and companionship of the spouse, children or
parents of the deceased, or to the siblings
of the deceased, if they were minors at the
time of the death.
Bartholomew v. Wisconsin Patients’
Compensation Fund, 2006 WI 91, 293
Wis.2d 38, 717 N.W.2d 216 (2006).
Therefore, under current law, for causes of
action that accrue prior to April 6, 2006,
there is no cap for non-economic damages in
medical malpractice cases, but if the
malpractice results in death, there is a
$350,000 cap for non-economic damages for
the death of an adult, and a $500,000 cap
for non-economic damages for the death of a
minor, subject to inflationary additions.
For causes of action that accrue on or after
April 6, 2006, there is $750,000 cap for
pre-death non-economic damages in medical
malpractice cases, but if the malpractice
results in death, there is still a $350,000
cap for non-economic damages for the death
of an adult, and a $500,000 cap for
non-economic damages for the death of a
minor, subject to inflationary additions.
On July 10, 2007, the Wisconsin Supreme
Court held that Wis. Stats. § 655.007 limits
the survival of a cause of action for
wrongful death arising from medical
malpractice to a spouse, parent, minor
sibling or minor child. Lornson v.
Siddiqui, 2007 WI 92, 735 N.W.2d 55 (2007).
Contrary to the hierarchical list of
wrongful death claimants in Wis. Stats. §
895.04(2), which includes adult children as
lineal heirs, an adult child lacks standing
to recover for a derivative claim, such as
loss of society and companionship, in a
wrongful death case involving medical
malpractice. The Supreme Court held
that the intended exclusivity of ch. 655,
Wis. Stats., prohibits the application of
Wis. Stats. § 895.04(2), governing other
wrongful death claims.
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