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.