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.
@thumbnail.jpg "Mark M. Bello")
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Legal Thriller Series. The series features super-trial lawyer Zachary Blake handling "ripped from the headlines" legal and political issues of the day. The series currently consists of Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, and Betrayal High, with a sixth Zachary Blake novel due out later this year. To learn more about these topical social justice legal thrillers. please visit markmbello.com. Mark is 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.
31 Comments
jc
As readers of this column know, I strongly SUPPORT TORT REFORM! Wisconsin caps pain and suffering damages at $750K, and her $16.5 million "pain and suffering" award will be reduced if the court of appeals follows the law as written. Besides, Mark, you know and I know that the average doc carries about a million in medical malpractice insurance. After that is gone and the plaintiff's attorney takes his 40-50% cut off the top! the patient isn't going to get much--certainly no where near $25 million!
Which gets us to the real purpose of "pain and suffering" damages. The real reason is not to compensate the rare victim of medical malpractice. The real reason is to try and try and force doctors into settling non-meritorious cases. In 2012, in Ohio, according to state insurance statistics, plaintiff attorneys lost 92.3% of cases decided by a judge or jury. So plaintiff attorneys are frequently stuck with cases that are going to be a big out of pocket expense to them. Their only way of recouping their expenses is to try and get the doctor to settle the case, otherwise, if they go to court, they lose! So in non-tort reform states, the plaintiff attorney will prevail upon the doctor to settle the case before trial because the trial jury May award some outlandish figure like this case illustrates and, after browbeating the doctor, the doctor often settles. Keep the caps, make the plaintiff attorneys work for a living!
Mark Bello
Doctor Cox: If there is already a policy limits cap and the "patient isn't going to get much", why the need for a statutory cap? How will a lady with no limbs live for the rest of her life on $750,000 or $1,000,000? If the doctor was negligent and caused these damages, why shouldn't he and his insurance company pay to support her rather than the taxpayers through public assistance?
I don't understand why you prefer a taxpayer funded bailout for the medical profession, other than the fact that you are a doctor and benefit from such a bailout. I'm not arguing liability issues, here; that is for another day and another post. This is not a lost case; it is a SUCCESSFUL one. This is a case where malpractice has been proven, horrendous, life altering, injuries have occurred as a result, and tort reform advocates like you want to restrict recovery from doctor and insurance company and pass responsibility to victim and taxpayer. Why? How does this woman support herself without lifetime benefits from her litigation? How is that fair?
jc
Now it is time to refute Mark and his many liberal arguments for Democrats. I vote against Democrats because I believe in smaller government and more liberty. Democrats think I am too stupid to make my own decisions. Well let's look at how some of their programs work. We have spent $10 trillion to fight the War on Poverty and Poverty Won! More poor people and broken homes today then in the 1960s. Members of the Obama Adinistration (Gruber) are coming out and telling the public that Obama and the Democrats purposely lied in order to pass Obamacare--THE WORST LEGISLATION EVER ENACTED IN US HISTORY! My health insurance rates have increased from $1,041 in 2009 to $1,861 in 2014 for a decrease in coverage! So I vote Republican so I can protect my interests.
Michael End
Dr. Cox, Wisconsin doctors not only carry a mandatory $1 million of medical professional liability insurance coverage, but also contribute to Wisconsin's Injured Patients and Families Compensation Fund, which pays any judgment or settlement that is more than the $1 million of primary insurance coverage. To give you an idea of how difficult it is for a patient to recover compensation in a medical malpractice case in Wisconsin, Injured Patients and Families Compensation Fund now has $1,180,000,000 in its coffers. Over the past four years, the Fund has only paid a total of 17 claims. The Fund SURPLUS is now $580.9 million! That means that if the Fund shut down today and paid every case of malpractice in full for injuries suffered until today, there would be more than $580 million left over. The Fund currently has $200 million more than it has paid to all claimants since the Fund was established in 1975. In Wisconsin last year, there were only 41 people who recovered compensation for injuries or death caused by doctor negligence. That equates to one payment for every 140,066 people living in Wisconsin. If you think the goal of our civil justice system is to "make the plaintiff lawyers work for a living," then Wisconsin is the place to be. Contrary to your statements, there is no incentive for an insurer in Wisconsin to settle a case, since the most the insurer ever has to pay is the $1 million of liability coverage. The Fund cannot settle a case unless the primary insurer has paid its $1 million of coverage. Since there is no point in the primary insurer voluntarily paying the full amount of its insurance coverage, cases with damages of more than $1 million rarely settle. Thus, the Fund has only paid, on average, four claims a year for the past four years. Extrapolating from an article published in April 2011 in the medical journal Health Affairs, there are 27,060 people who die or are injured in Wisconsin every year as a result of medical negligence. The 41 people who received compensation in Wisconsin last year represent less than one-sixth of one percent of the people actually injured. Is that your concept of a just system?
Mark Bello
And, Dr. Cox, your Donkey/Elephant response did not address a single one of my points. In Wisconsin, why shouldn't the doctor, his insurance company and the Compensation Fund that Mr. End describes pay to support this unfortunate victim rather than the taxpayer? How is making the taxpayer pay for that which others are responsible for and can afford a "Republican" concept or response? As always, you talk out of both sides of your mouth.
jc
Well, Mike, I practice in Ohio, not Wisconsin, so forgive me for not knowing about Wisconsin's insurance superfund. We don't have that in Ohio, so if I get hit with a large judgement, I guess I am just personally liable. But in Ohio, we do have "pain and suffering" caps of $350k which is supposed to protect me from an egregious jury verdict. My concern is that 'pain and suffering' is subjective and a jury could use it as a substitute for punitive damages, as apparently the jury did in Wisconsin. In Ohio, since caps have been in force since 2005, there have been 27,785 malpractice suits filed and the caps only affected 13 cases, but during that time my malpractice insurance rates have dropped from $32,000 per year to $20,000 a year. That is a strong argument for caps on 'pain and suffering'!
Mark Bello
So, Dr. Cox, let me see if I understand your arguments: A woman who loses all of her limbs because negligent doctors failed to prescribe a $25.00 medication should have her recovery severely limited (to levels that won't support her) at victim and taxpayer expense so that you can save $12,000 a year on your malpractice insurance premiums? And you think that giving a woman $25 million for the loss of all four limbs when a $25 medication would have prevented that tragic loss was "punitive"? Do I restate your arguments correctly?
By the way, if caps only affected 13 out of 28,000 cases in Ohio in nine years, that is a powerful argument AGAINST caps. Obviously, if only an infinitesimal number of verdicts reach a level where caps apply, juries are only giving awards to the catastrophically damaged victims. Contrary to your rants about "jackpots" and "runaway verdicts", juries are making sound judgments. You, on the other hand, believe that saving $12,000 a year is worth leaving under- compensated victims to live on public assistance. Shame on you.
jc
Mark, your arguments are laughable. There are about 30,000 doctors practicing in Ohio. If they all saved $12,000 a year in malpractice insurance expenses, like I have, that works out to a saving of $360,000,000 a year! Between 2005 and 2012, i.e., in 8 years, only 13 cases (according to the Ohio Department of Insurance) of 27,785, were subject to "pain and suffering" caps. $360 million a year is big time money and the cost has to be passed on to the consumer (patient) in one way or another. So you think that allowing less than 2 cases per year to have uncapped "pain and suffering" damages is worth adding $360 million to the health care costs of the citizens of Ohio. Do I restate your arguments correctly?
By the way, in previous blogs you stated that "90% of medical malpractice cases settled out of court are settled in favor of the patient!" According to the 0hio Dept of Insurance report in 2012, 2,197 claims (>79%) were closed without payment! Of the 2,773 cases resolved that year, 68.66% of cases closed when the patient dropped the lawsuit WITHOUT PAYMENT! Only 4.5% of cases were decided by a judge or jury and of those, doctors won 92.3% of the time! Mark, shame on you for providing false and misleading information to this blog!
Mark Bello
Dr. Cox: Seriously?! You miss the point. We are talking about the INSURANCE INDUSTRY! You, catastrophically injured people, and all of premium paying customers are being deceived by the insurance industry. Carriers have ALWAYS been able to deduce your rates; if the statistics you keep trotting out are accurate, your rates should be even LOWER. Their profits are at record levels. There is no correlation between caps and rates. Zero! By the way, have you and your brother and sister physicians reduced your fees to your patients because of your $12,000 annual savings? Are you kidding me? Your "statistics" are so absurd I don't need to comment. Get real. We should be allies in a crusade to stop insurance companies from ripping all of us off. Instead, they have naive doctors doing (and helping to pay for) their lobbying work for them. You are laughable, not to me, to them! They are laughing all the way to the bank!
jc
Insurance rates are built on risks. I have given you statistics from the Ohio Department of Insurance, a state agency which has no agenda. You may get this report at www.insurance.ohio.gov. All I know is that Ohio passed tort reform and my malpractice insurance rates dropped $12,000/yr. Texas has even more aggressive tort reform and the yearly malpractice premiums are about 60-70% less than Ohio's malpractice rates. I know that plaintiff attorneys don't agree, but I see a pattern here. Malpractice caps + tort reform = lower malpractice insurance rates. Lower malpractice insurance rates + office expenses = Lower cost of doing business. Lower cost of doing business means we can hold the line on fee increases or see an additional Medicaid patient. By the way, since we are talking about fees, we would be remiss to not talk about the 40% contingency fee ($10 Million) which the plaintiff attorney will reel in should the $25.3 Million verdict stand (Nice work if you can get it!). Should this stand, Wisconsin doctors will see an increase in their malpractice rates.
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