Medical Malpractice Apparently Doyle's Fault, Too

In a recent op-ed, state Rep. Jeff Fitzgerald (R-Horicon) essentially blames Governor Doyle for a medical malpractice suit that awarded Jessica Greenfield of Waupun $4.25 million for pain and suffering after a surgery that left her unable to eat. Greenfield spends 12 hours a day with a feeding tube in order to get nurishment and must return to the hospital each month to empty her stomach. Needless to say, her life has been utterly changed since her surgery.

Pain and suffering awards are intended to compensate people for the alterations required in their life due to a product gone bad; in this case, that product was medical treatment. These awards are separate from economic expenses incurred through hospital bills and other direct charges resulting from injuries sustained through consuming a particular product. Indeed, an increase in medical bills isn't the only thing that's new in your life after undergoing an improper medical procedure.

Fitzgerald blames Doyle for these large medical malpractice awards because the governor vetoed legislation in December 2005 that would have capped pain and suffering awards at $450,000 for adults and $550,000 for children. What Fitzgerald does not mention in his op-ed is that in July 2005 the Wisconsin State Supreme Court found unconstitutional a state law that similarly limited pain and suffering awards to about $445,000 in 2005 (the cap was initially set at $350,000 in 1995 and rose annually with inflation).

If Fitzgerald thinks that increasing the acceptable award amount by $5,000 for adults and $105,000 for children would somehow make the law constitutional or even justifiable, then he obviously didn't care to read the WI Supreme Court decision handed down last July. According to the majority opinion (paragraph 113), "we conclude that the $350,000 ceiling adopted by the legislature is unreasonable and arbitrary because it is not rationally related to the legislative objective of lowering medical malpractice insurance premiums."

Medical malpractice suit amounts in excess of what's covered by private insurance are paid through the state's Injured Patients and Families Compensation Fund. The fund is basically an extra insurance program for physicians and other health care providers who pay into the fund and then are covered for liabilities that go above and beyond what private insurance will cover. Currently, state law requires private insurers to provide up to $1 million per occurrence or $3 million per year.

Conservatives, including Fitzgerald, have argued that removing the cap on medical malpractice will force health care costs to skyrocket and--in a worst case scenario--force doctors out of the state. To follow their logic, if medical malpractice suits are allowed to go unfettered, insurance premiums charged through the Compensation Fund will increase, thereby driving the cost of health care up as providers shift that cost to health care recipients. And if the costs get too high, doctors may just up and leave Wisconsin.

But as the majority opinion in the July 2005 case demonstrates, those fears are completely unfounded.

To be sure, there was not always a cap on medical malpractice suits in Wisconsin. From 1979 to 1985 there was no cap in place, from 1986 to 1991 there was a cap of $1 million, from 1992 to 1995 there was no cap once again, and from 1996 until the 2005 decision there was the $350,000-$445,000 cap. According to the majority opinion (paragraph 142), each year--whether there was a cap in place or not--"the actuaries have consistently overestimated the amount of losses the Fund would incur in any given year." In some years, that overestimation was nearly $200 million.

In other words, whether there was a cap in place or not, medical malpractice suits have never come close to overwhelming the Compensation Fund in the past 15-plus years. In fact, the Compensation Fund has been riding an annual surplus that averages nearly $130 million since 1989--this includes years when there was no cap, years when the cap was $1 million, and years when the cap was $350,000 to $445,000. Based upon this evidence, the court rightfully concluded that the cap set forth by the legislature was arbitrary and therefore unconstitutional.

This does not mean that medical malpractice suits should never again be an issue. But the evidence clearly points to the fact that these suits are not currently bankrupting the health care system, at least in Wisconsin. Legislators like Jeff Fitzgerald need to put aside the election year rhetoric and start dealing with the real issues driving up health care costs.