Gov. Jim Doyle squelched a legislative attempt Friday to reinstate a limit to the amount of non-economic damages a victim of medical malpractice can receive.
The bill, called AB 766, would have reinstated the cap on non-economic, or "pain and suffering," damage awards at $450,000 for adults and $550,000 for minors in medical malpractice lawsuits.
A previous cap on such damage awards was overturned by the Wisconsin Supreme Court earlier this year, when it found the $445,755 limit was unconstitutional due to its arbitrary nature.
"I am vetoing this bill because it is very unlikely that the Wisconsin Supreme Court would uphold it," Doyle said in a release. "The court has already struck down virtually the same caps. The caps could have been structured to address the concerns of the court — but AB 766 is not a serious effort to do so, and does not represent a real solution."
The Wisconsin Supreme Court overturned the old cap, which was in place since 1995, when it heard the case of Ferdon v. Wisconsin Patients Compensation Fund earlier this year.
State Rep. Scott Fitzgerald, R-Juneau, a co-sponsor of the bill, called Doyle's move "unfortunate" and said Supreme Court Justice N. Patrick Crooks had outlined areas of the legislation which needed improvement to guarantee it would be upheld by the high court.
Such areas were addressed and corrected by the new legislation, Fitzgerald said.
"I think anyone who has watched the process since the Supreme Court ruling has been able to connect the idea that what Justice Crooks said was something that the Legislature was focused on," Fitzgerald said.
The Wisconsin Hospital Association and Wisconsin Medical Society conducted a study to determine an appropriate cap level, Fitzgerald said, which was used to calculate the new cap amounts. The caps used by other states were also analyzed to help formulate the limits set in the bill.
Fitzgerald said it is crucial to have such caps to ensure Wisconsin's top doctors continue to practice in the state by making sure they are not driven out to other states due to high malpractice insurance premiums.
Before vetoing the bill, Doyle's chief legal counsel Amy Kasper received a response letter from three University of Wisconsin law professors, Walter Dickey, Heinz Klug and David Schwartz. Dickey had been asked to give his opinion on the constitutionality of AB 766, who in turn called on the assistance of Klug and Schwartz.
"It is quite clear that AB 766 suffers from the exact same constitutional defects as the statutory predecessor … AB 766 at most half-heartedly attempts to address only one of the several constitutional problems of its predecessor, and clearly fails in that attempt," Dickey wrote.
The proposal to limit to pain and suffering damages "does nothing to address the lack of a rational relation between the non-economic damages cap …" the professors also said in the letter.
State Sen. Robert Jauch, D-Poplar, said he stands behind Doyle's measures to stop the bill, and said the legislation distracted from other health care issues the state faces, like the high cost of health care and the large number of people in the state who remain uninsured.
Jauch said though he was against the newly vetoed bill, he does see the need to have such a cap as long as the legislation is constructed correctly.
"Like Gov. Doyle, I am urging the parties including the health-care industry, trial attorneys and interested parties to go back to the bargaining table and come up with a reasonable, responsible and constitutionally sound proposal."
But Fitzgerald said it is unlikely medical malpractice cap legislation will be rehashed any time soon.
"I'm not surprised the governor vetoed this," Fitzgerald said. "Unfortunately, now it is going to be difficult for the Legislature to revisit this, even to bump it up by any amount because we arrived at this figure based on what we believe is legitimate research and data."
