Med Mal Damage Caps

Published July 15, 2005

Dear Editor:

Wisconsin’s insurance commissioner concluded earlier this year that the state’s 10-year-old cap on non-economic medical malpractice damages has been successful in making malpractice insurance “available and affordable” and has “resulted in the stable medical malpractice environment and the availability of health care in Wisconsin.”

At the same time, the commissioner noted a state Patient Compensation Fund makes sure patients who are harmed by medical negligence are fully compensated for their economic losses such as medical expenses, physical therapy, and losses of earnings and earning capacity.

This was exactly what the Wisconsin legislature had in mind when it enacted a cap of $350,000, indexed to inflation, on non-economic damages such as pain and suffering and loss of consortium.

So how could the Wisconsin Supreme Court decide this week that the legislation lacked “a rational basis?” It was a classic case of judicial activism.

The majority substituted its judgment for that of the legislature by concluding the caps had not performed as predicted by the legislature. The court was able to reach this conclusion only by ignoring or distorting the “mountain of evidence supporting the effectiveness of caps,” data that was fully set forth by the dissent.

Today, Wisconsin is one of only six states in the country found by the American Medical Association not to be in or near a medical malpractice crisis. But look for Wisconsin to join the “in crisis” states soon.

Maureen Martin
Green Lake, WI 54941
[email protected]

Attorney Maureen Martin ([email protected]) is senior fellow for legal affairs for the Chicago-based Heartland Institute and managing editor of its Lawsuit Abuse Fortnightly newsletter.