A Milwaukee County judge has ruled that the state’s onerous tort reform statute does not apply in the case of a $25.3 million recovery for a woman who lost her arms and legs due to medical malpractice.
On May 24, 2011, a 53-year-old mother of four was admitted to Columbia St. Mary’s Hospital with acute abdominal pain accompanied by a fever. After spending nearly nine hours at the hospital, she was discharged and told to contact her gynecologist in the morning. Upon returning home, the woman reportedly collapsed and was taken to another hospital where she was diagnosed with a septic infection caused by Strep A — the kind that causes strep throat. Due to the spread of infection, she needed all four of her limbs amputated to survive. The woman requires round the clock care; her future mobility will ultimately depend on her ability to adapt to prosthetic limbs.
According to the medical malpractice lawsuit, the doctors who treated the woman recognized signs of infection and included it in her diagnosis, but failed to share this information with the patient. The suit claims that a $25 antibiotic treatment could have prevented the septic infection. At the end of a three week trial, the jury awarded the woman $25.3 million, more than $8.2 million in past and anticipated health care costs and approximately $16.5 million consisted of non-economic damages despite Wisconsin’s statutory damage cap of $750,000. The verdict hinged on a state law, since changed, stating that doctors were required to disclose treatment options that a reasonable patient would want to know. Last year, Gov. Scott Walker signed an informed consent bill lowering the bar for what a doctor must tell a patient. The new law requires that doctors disclose only what a reasonable physician would tell a patient. Had that law been in affect when the woman was treated, it may have been much more difficult, if not impossible, for her to win a medical malpractice case.
The defense asked that the non-economic damages award be lowered to reflect the statute, but Judge Jeffrey Cohen ruled the cap unconstitutional in this case. “It is unreasonable to require [this woman] and her husband, whose lives have been so drastically altered, to bear the brunt of the legislature’s intended ‘tort reform,'” Cohen wrote. An appeal is expected.
According to Wisconsin law, the goal in implementing the cap was to “ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to victims of medical malpractice.” What is “adequate compensation” for giving up all four of your limbs? Who would trade all four limbs for $25 million? Why would the governor of all of the citizens of Wisconsin sign a bill that drastically restricts recoveries to citizens who are so seriously victimized? Why would the citizens of Wisconsin re-elect him (Walker)? Is the state electorate, indeed, the national electorate THAT misinformed?
This outrageously low damage cap underscores the horrors of so-called tort reform. In the past two decades, powerful insurance lobbies have convinced the public to support tort reform claiming that it would weed out frivolous lawsuits and lower healthcare costs. But this case shows that it does the exact opposite. Here we have a woman who suffered unimaginable loss—she is a quadruple amputee. Her case is anything but frivolous. If there is an appeal and the Wisconsin Supreme Court sides with the Scott Walker’s of the world, this woman will become victimized again, this time by tort reform.
The legislature decided years ago, before this woman had her day in court, that $750,000 was enough to make her whole. It’s hard to believe that the citizens of Wisconsin would consider this enough to make up for living a life limbless. Tort reform is a combination of lies and misrepresentations to suit the needs of big business and the insurance industry. Damage caps do not solve a health-care system in crisis, but rather punishes those with the most serious injuries, costing the victim more than just lost earning potential or unpaid medical bills. Many legislators, in many Republican led states, have passed similar legislation; done similar damage to your right to pursue justice.
Many of you voted for Republican leadership in this election, including Wisconsin’s re-election of Scott Walker. This is true despite the fact that corporate profits are at record highs. We are adding approximately 200,000 jobs per month, unemployment is below 6%, and the gross national product growth is through the roof. It is true despite the fact that the dollar is stronger than it has been in years. Interest rates are historically low (haven’t been lower in 30 + years), gas prices are falling, the stock market is at record highs, there is little of no inflation, oil imports are declining, and domestic oil production is increasing rapidly. The wealthiest among us are still making tons of money and there is virtually no inflation. Democratic candidates ran from the President who has presided over this economic boon; some treated him like he had Ebola. His popularity is at an all-time low. CAN SOMEONE EXPLAIN THIS TO ME?
We seem to have a burning desire to vote against our own best interests. Politicians aren’t helping us in the slightest. The Republicans care only about the pocketbooks of their wealthy corporate contributors (the same is true of many Dems) and the Dems do not seem willing to embrace progressive policies, progressive political philosophies, and progressive candidates, many of whom lost elections last Tuesday and many whom helped bring us the terrific post 2008 recovery statistics previously cited. Most of those same Republicans are pro-life, anti-justice/pro tort reform, pro-corporation/anti-citizen, against marriage equality, and “dumb and dumber” on most important issues. They are absolutely contrary to what most polls show America wants, yet we keep voting for these guys. We keep voting against our own interests and agendas. Why? The best example is what the polls show – that the vast majority of citizens are happy with “ObamaCare,” yet we went out and voted for Republicans who swear to repeal it. Huh?!
Despite what you may hear, juries are, typically, conservative in their awards. Given the outrageous failure here (failure to prescribe a $25 medication) and the terrible result of that failure (the loss of all of this woman’s limbs), this jury did the right thing. Why should this victim’s burden of care fall to the taxpayers?
Any attempt to take power away from a jury is an attempt to take power from the citizens of Wisconsin. Placing the reins of justice in the hands of the US Chamber of Commerce and special interest groups only encourages corporations and insurance companies to continue to put profits over safety. And why does a significant majority (some “Tea Party” Repubs are 7th Amendment advocates, but they are a party minority) of Republicans support these anti-citizen reforms? I thought they were the “hands off” party, the party of personal responsibility, the strict support of the constitution party, the party of no-bailouts. Why are they for “bailing out” the insurance and medical industries at taxpayer expense? Why isn’t the 7th Amendment as important as the 2nd? Wouldn’t it be easier to stop the reason for the lawsuits? Wouldn’t it be easier to fix the problem rather than restricting recovery and court access to victims?
The citizens of Wisconsin, with only themselves to blame, should ask their legislators to fix this substantial injustice. They, and ALL citizens affected by these important issues, should pay more attention to the issues and what their elected officials are doing about them. If these officials are acting in a manner contrary to the interests of the average citizen, have the guts and common sense to vote them out of office.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.