"Quality health care." Politicians bandy the phrase about on a regular basis these days as Wisconsin's 2006 elections near. Making this political platitude a reality, though, requires a foundation of rock-solid policies. To stay structurally sound, medical malpractice caps need to remain a cornerstone of that foundation.
Malpractice caps do not limit justice for unfortunate patients, as some critics believe. Instead, they ensure better health care for Wisconsinites by curbing the obscene pain and suffering awards that have cropped up since existing caps were ruled unconstitutional.
Capping damages also helps the state retain and attract top physicians in a competitive national market. A doctor can be confident that an isolated mistake or frivolous suit won't force him to shutter his practice.
Unfortunately, some in Wisconsin government have rejected this cornerstone, placing the state's health care structure in a precarious spot.
Signed into law a decade ago, Wisconsin's medical malpractice caps were struck down last summer by the State Supreme Court. According to the court, the inflation-indexed limits, which capped damages at approximately $445,000, had "no rational basis."
Stung by the rejection — and surprised by the uncharacteristic opinion of Justice Patrick Crooks — the Legislature brought caps back to the table, passing new legislation with a slightly higher dollar limit of $450,000 for adult suits. The caps had worked well for Wisconsin and there was no compelling reason for the court to have nixed them.
Unfortunately, Gov. Jim Doyle vetoed this attempt at reinstating the malpractice caps. Undeterred, Republican legislators Curt Gielow, R-Mequon, and Scott Fitzgerald, R-Juneau, unveiled yet another version of malpractice caps. The new limit, set at $750,000, passed the State Assembly comfortably last week and now heads to almost certain passage in the state Senate before moving on to the governor's desk for signature.
If the governor truly believes in maintaining quality health care and keeping a talented corps of doctors in the state, he must sign the bill.
Republicans have good reason to be persistent. Importantly, the latest legislation still allows suits to cover all economic damages for medical care and loss of employment — tangible, quantifiable harms caused by malpractice.
Additionally, malpractice caps are a key to maintaining a talented pool of doctors in Wisconsin who are not, as in other states, driven from their profession by the specter of outrageous lawsuits. As the Wisconsin Hospital Association points out, in the mere seven months since the initial caps were struck down, four jury malpractice awards have already exceeded the old limits. Compare this with only nine in the 10 years when the cap was in place.
Indeed, reasons for the caps seem eminently reasonable. Truly negligent malpractice is rare, and the threat of unfettered lawsuits certainly doesn't alleviate the cost of malpractice insurance for the good doctors out there. Logically, without an approximate ceiling to work with when setting rates, insurers face the prospect of astronomical jury awards. Accordingly, physicians must think twice about continuing their practice in Wisconsin or continuing to work in high-risk areas, like childbirth.
While yesterday's Wisconsin State Journal story on malpractice caps declared them ineffective at keeping insurance costs down, the statistics cited show at worst a mixed bag of results for states with caps; five ranked in the lowest 10 states for malpractice insurance rates. Six ranked in the 10 states with the highest rates. Given the inconclusive numbers elsewhere, the bottom line is this: Caps worked in Wisconsin while they were in place.
According to the General Account Office (GAO), states with caps experienced slower growth in malpractice insurance premiums than those without them. The GAO's 2003 report on medical malpractice noted that: "from 2001 through 2002, average premium rates rose approximately 10 percent in states with non-economic damage caps of $250,000 compared with approximately 29 percent in states with more limited tort reforms." That means doctors in the 27 states with caps were able to provide services with lower insurance costs than their peers in non-cap states. In the end, doctors can only transfer lower costs to patients when their costs of doing business are reduced.
Luckily, even a few state Democrats realize the futility of continued opposition to caps. Assemblyman Bob Ziegelbauer, D-Manitowoc, hit the nail on the head after Doyle's veto in round two: "The minority party apparently has fallen in with the 'no caps under any circumstances' mindset. The resulting deadlock fails the people of Wisconsin."
Recently, more members of Ziegelbauer's own party seem to have come around, as 16 Democrats crossed over to vote for the latest installment of malpractice caps. Assemblyman Sheldon Wasserman, D-Milwaukee, a physician, said the bill "does the job." The 74-22 vote makes for a comfortable, veto-proof majority should Doyle brandish his pen yet again, necessitating an override vote.
Disturbingly, Doyle's action on the bill is hard to predict. He may, despite broad public and legislative support within his own party, base his final decision on the campaign contributions of a particular special interest that distorts common sense for a number of state Democrats: trial lawyers.
The strong tie between Doyle and trial lawyers has undoubtedly swayed Doyle's earlier actions on caps. The Wisconsin State Journal noted the state GOP's outrage when the Doyle campaign took $20,500 in trial lawyer donations between Dec. 1 and Dec. 9 last year — the days surrounding his veto of the first cap bill.
Fortunately, even if Doyle vetoes the latest installment of medical malpractice caps, a change may be on the horizon. Both Mark Green and Scott Walker, the Republican gubernatorial challengers this year, have explicitly condemned Doyle's veto and promised to support caps.
In the end, most Wisconsinites believe non-economic pain and suffering suits need reasonable limitations. Over 65 percent of Wisconsin residents surveyed last year in a Public Opinion Strategies poll thought Wisconsin should cap non-economic damages to prevent higher health costs associated with frivolous lawsuits. Legislators have achieved precisely the balance needed, allowing those rare individuals suffering misfortune to redress wrongs while adding an element of certainty to litigation of intangible harms.
While Justice Patrick Crooks and a majority of the State Supreme Court did not see this political compromise as beneficial, it would serve the governor well to recognize its value. Signing medical malpractice caps into law is necessary to ensure keeping quality health care a reality in Wisconsin.
Brad Vogel ([email protected]) is a senior majoring in political science and journalism.
