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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