The Real Challenges to the Medical Malpractice Bill

The Journal-Sentinel reports this morning that the bill capping pain and suffering awards in medical malpractice suits is making its way swiftly through the state legislature.

Governor Doyle vetoed the last bill of this kind proposed by the Republican legislature because the Wisconsin Supreme Court determined that arbitrary caps on awards from medical malpractice suits are unconstitutional.

The law deemed unconstitutional by the Supreme Court started the cap at $350,000 in 1995 and set it to increase with inflation each year. By 2005, when the ruling came down, the cap was set at $445,000. The subsequent legislative bill vetoed by Doyle this past December set the caps at $450,000 for adults and $550,000 for children. The cap for the current bill before the legislature is set at $750,000.

Doyle has not publicly stated if he would veto the bill, but with the way the it's moving through the legislature in this election year it may not matter. The JS article today notes that the measure passed the Assembly yesterday by a 74-22 margin, which is well above the 2/3 necessary to override a veto. The vote in the Senate, which should come soon, will be telling.

The question over whether this new bill is constitutional is a whole other issue, though. It seems legislators think the Wisconsin Supreme Court decision from last July was based on the fact that the cap was set too low before. This is just not the case.

While the decision didn’t rule out the possibility that some caps on awards for medical malpractice could be constitutional, it did state very clearly that any cap must not be arbitrary. In other words, there must be a compelling need for the cap in order for it to stand up to constitutional muster.

The decision demonstrated very clearly that award caps for medical malpractice suits have made no impact in the past on the solvency of the health care or health insurance industries in Wisconsin. In other words, up until this point in Wisconsin, medical malpractice awards—whether a cap has existed or not—have not been a problem for the state.

So unless the backers of this bill are able to provide a compelling explanation for how the health industry in Wisconsin will be unjustly hurt without this new cap, the biggest challenges for the livelihood of the legislation are the Wisconsin Supreme Court and reality, not Jim Doyle.

As I’ve noted before, this bill is more politics than public policy. I can just picture the sound-bite going out if Doyle vetoes the current legislation: “Jim Doyle and his trial lawyer cronies support bankrupting Wisconsin health care and driving doctors out of the state.”

That said, it’s probably in Doyle’s best political interest to just sign the legislation when it comes to his desk. It won’t pass a constitutional challenge and the state will spend a lot of money in proceedings to re-try a case that was just decided last year. It’s a sadly inefficient scenario, but one that is a reality for the way our political culture works (or doesn’t work) sometimes.

There are certainly serious issues with health care that need to be dealt with in this state and throughout the country, but medical malpractice awards are not among them—at least in Wisconsin.

Apparently in deference to election year politicking, however, we’re going to pretend in Wisconsin that there’s no health care issue more worthy of our public outrage and attention than one that doesn’t really exist.