There has been a lack of full participation from all interested parties.

Consumer groups, injured patients and their families were completely ignored in this medical malpractice process, yet the legislation seeks to take away their very rights in medical malpractice cases. While the legislative process shuts them out, the courts are required to listen to them in medical malpractice cases. These victims are on equal footing with the special interests. That is not true here.

There has been a rush to judgment regarding the need for caps in medical malpractice. The supreme court just threw out the last medical malpractice cap, and the legislature is coming back within three to four months with a new one. What has changed to justify a medical malpractice cap? The legislation was just introduced, and now this hearing is being held and a vote likely on the floor next week. Where is the deliberation before we pass medical malpractice caps? Where is the consideration before we pass medical malpractice caps? It is a sham. We are talking about taking away the constitutional rights of our citizens in medical malpractice cases, and you treat it like you're voting for a national appreciation day. The legislature has not given this issue of medical malpractice caps the weight or depth of analysis it requires.

The Task Force dismissed or did not consider evidence the supreme court looked at when deciding the Ferdon case.

The supreme court gave the legislature some very clear signals -- if they are going to restrict the rights of Wisconsin citizens in medical malpractice cases, it had better show some very good reasons and a rationale that justifies taking this extreme step of capping victims rights in medical malpractice cases. The evidence presented to the legislature to date does not present any clear rationale that justifies a medical malpractice cap, especially a medical malpractice cap at such a low amount.

The medical malpractice bill introduced to the State Senate has a number of incorrect “findings,” in our opinion.

One of the findings in the bill is that a medical malpractice cap on noneconomic damages “... ensures adequate compensation/or victims of medical malpractice” If one of the members of the senate were to have a family member who is rendered quadriplegic for life as a result of medical malpractice, and if the person had a life expectancy of 50 years, would that member of the senate really think that a maximum award of $450,000 or $550,000 for noneconomic damages in a medical malpractice case would be adequate compensation? It is a patently ridiculous “finding.”

The bill states that the medical malpractice system should limit disincentives for physicians to practice medicine in Wisconsin such as the unavailability of professional liability insurance coverage… The drafter of the bill has apparently forgotten that in 1975 the legislature created Wisconsin Health Care Liability Insurance Plan -- known as the medical malpractice reform excess carrier, a statutorily-created insurer that was created to provide medical malpractice insurance to any doctor in the state, no matter what the claims experience of that doctor has been. There is no possibility that doctors will be unable to obtain medical malpractice liability insurance coverage in Wisconsin.

The bill also suggests that the new medical malpractice cap law help contain health care costs by limiting the incentive to practice defensive medicine. The notion that a cap in Wisconsin would have any impact upon the hypothetical risk of defensive medicine is misplaced. Unlike some other states, a doctor in Wisconsin who complies with the statutory requirements of having primary insurance coverage and coverage with the Injured Patients and Families Compensation Fund will never have to pay a penny out of his or her pocket for medical malpractice insurance, either by way of settlement or judgment. Wisconsin law does not allow that to occur in medical malpractice cases. The primary medical malpractice carrier and the fund provide first dollar coverage, up to the extent of the fund assets, now about $750 million. What difference, then, would a medical malpractice cap make in whether a doctor does or does not order a certain diagnostic procedure? If the patient is injured by medical malpractice and he/she may obtain a maximum of $450,000 in medical malpractice noneconomic damages, will the doctor forego ordering the diagnostic test, but if the patient might recover $1 million, the doctor would order the test? This does not make sense.

Further, the whole notion of defensive medicine is misplaced. Are doctors really saying that they order unnecessary tests because medical malpractice caps are not in place? The fact is that health insurance companies and Medicare look over bills to make sure that diagnostic tests are indicated. If not, the bills do not get paid. The notion that doctors are dishonestly performing unnecessary tests does not say a lot for the integrity of medical professionals.

The reality regarding defensive medicine is that it does not happen, in my experience. The medical malpractice case of Shay Maurin exemplifies that. The evidence was that the cost to Hartford Hospital of performing a finger-stick blood sugar test would have been something like $.57 (cents). The test was not ordered. Five-year-old Shay Maurin died.

Or the medical malpractice case of a man who died at age 32 from a pulmonary embolism. He went to the clinic three times in 23 days complaining of the classic signs of a pulmonary embolism, including significant and worsening shortness of breath. He told the nurse practitioner who saw him that people thought that he had a blood clot in his leg, which the autopsy showed that he had. That blood clot, called a deep vein thrombosis, was the precursor to the pulmonary embolism. No diagnostic tests were ordered, other than a chest x-ray and blood work. This medical malpractice victim is survived by a widow and three young children. What the people in Wisconsin need is a little more diagnostic testing, when indicated, not less.

The bill discusses the “financial integrity of the Injured Patients and Families Compensation Fund.” The medical malpractice fund assets have been growing by leaps and bounds. In the 30 years of fund existence, the medical malpractice fund has grown to $750 million, exceeding, by far, the total compensation that has been paid to injured patients during the 30 years of medical malpractice fund's existence. The Commissioner of Insurance, Jorge Gomez, testified that, “Wisconsin, ... probably has the most sound and functional malpractice environment in the country. ... Wisconsin is by far in a much better position than any other state that has a non-problem at the moment with their [medical] malpractice environments. ... and Wisconsin will not be [in a state in crisis] any time in the future, regardless of what your committee or the legislature decides on the issues of caps. ... The reality is that the [medical malpractice] marketplace is competitive, the [medical malpractice] fund is solvent, and we’ll likely make adjustments based on the court’s decision on assessment in the future.”

That hardly appears like justification for a medical malpractice cap. The testimony from Physicians Insurance Company of Wisconsin (PIC), the state’s largest medical malpractice insurer, indicated there was no impending crisis and that the worst-case scenario resulting from the medical malpractice cap’s repeal would be “single-digit” premium increases for Wisconsin doctors. In addition, PIC spoke of Wisconsin’s “common sense” exercised by medical malpractice juries. Again, we had only nine medical malpractice cases that were affected by the cap from 1995-2005, hardly a pressing problem.

Yes, I heard much hand wringing about “potential” medical malpractice problems, particularly access to physicians in rural areas. That problem existed before 1995. If the 1995 cap did not solve this problem, what evidence is there that a new cap will solve it?

Whatever the objective is for a medical malpractice cap, the evidence -- doctors fleeing or lower medical malpractice insurance premiums -- is merely “speculative,” which the court held could not support the constitutionality of the medical malpractice cap.

How can the medical malpractice cap be justified?

It is less than $5,000 above the medical malpractice cap that was just determined to be unconstitutional by the Wisconsin Supreme Court. Where did the medical malpractice cap number come from? It again appears that it was picked out of the air.

The medical malpractice caps continue to discriminate against the most severely injured, the legislature has not remotely considered the victims rights in this medical malpractice bill and it continues to treat families unfairly, a point that was brought up in the Ferdon opinion.

The Ferdons challenged the medical malpractice cap’s reduction because the law did not treat them equally. The supreme court took this medical malpractice cap challenge very seriously. In a scholarly, exhaustive and well-reasoned opinion, the court reviewed the legislative purpose of the 1995 medical malpractice cap as well as evidence to support and refute it. The court reviewed over 50 reports and articles.

I would like to highlight the evidence against the medical malpractice caps.

Medical malpractice insurance premiums are an exceedingly small portion of overall health care costs.

In Wisconsin, medical malpractice premiums are now less than 40 cents out of every $100 dollars spent on health care, and it is a declining proportion. Expansion Magazine has rated Wisconsin’s medical malpractice costs as the lowest in the nation. Meanwhile, Wisconsin health insurance premiums are rated second highest in the nation. There is no correlation between medical malpractice costs and health care costs.

The court found that “even if the $350,000 medical malpractice cap on noneconomic damages would reduce medical malpractice insurance premiums, this reduction would have no effect on consumer’s health care costs.” That certainly proved true under the $350,000 cap. Did anyone experience lower health care costs since 1995? The court concluded, “Accordingly, there is no objectively reasonable basis to conclude that the $350,000 cap justifies placing such a harsh burden on the most severely injured medical malpractice victims, many of whom are children.”

Just nine (9) Jury Verdicts were impacted by the cap from 1995-2005.

Below is a summary of the case and how the medical malpractice cap impacted the medical malpractice injured patients and their families.

These nine medical malpractice cases show a reduction of approximately $10.2 million from what the juries determined the medical malpractice damages to be after hearing all the evidence compared to the medical malpractice damages available under the cap enacted in 1995.  That’s about $1 million per year saved in medical malpractice cases.  That comes to 18 cents per person in Wisconsin per year.  Furthermore, because an injured medical malpractice patient shares the cap with family members, the medical malpractice cap has a disparate effect on patients with families.  It is these medical malpractice injured patients and their families who are bearing the total burden if medical malpractice occurs and a jury awards more than the medical malpractice cap.  Why is it fair to burden the most seriously injured from medical malpractice while providing monetary relief to health care providers and their insurers?

The data from the National Practitioner Data Bank, to which all payments to people injured by medical malpractice must be reported, show that Wisconsin was the third lowest state for the number of payments per 1,000 doctors in 2003, the same ranking we held in both 1994 and 1995, before the medical malpractice cap on damages took effect.

Compensation Fund: With a medical malpractice cap, the fund’s enormous assets are denied to patients for whom juries have awarded compensation above the medical malpractice cap.  In the last ten years, the medical malpractice fund’s assets have almost tripled, increasing an average of $47 million a year to almost $750 million.  During the same period, the medical malpractice fund was only drawn upon an average of 19 times per year and payments made to families injured by medical malpractice averaged only $28.5 million per year.  That amounts to $18.5 million less than the average annual increase in Fund assets.  Meanwhile, the medical malpractice Fund’s assets, while barely tapped by medical malpractice injured patients, have been utilized to reduce medical malpractice Fund’s medical malpractice fees for doctors. The medical malpractice Fund fees have been cut six of the last seven years, most recently by 30 percent. The medical malpractice Fund fees for 2005-2006 are more than 50% lower than fees from 1986-87.

WATL believes that grossly inaccurate actuarial projections have fueled the need for a medical malpractice cap.  In 1995, sponsors of the medical malpractice cap legislation used the inaccurate projections by actuaries as a reason to impose the noneconomic damages medical malpractice cap.  Legislators were told there was a $67.9 million projected actuarial deficit as of June 30, 1994.  Instead, the actuaries now estimate there was a $120 million actuarial surplus.  It shows that when the legislature acted in 1995, it was given estimates that were off by almost $188 million!!  As the supreme court noted, it didn’t seem to make any difference if there was or wasn’t a medical malpractice cap because the fund has flourished both with and without a medical malpractice cap.

In Wisconsin, few medical malpractice claims are filed.  In a state with 5.5 million people, with millions of doctor-patient contacts yearly, only 240 medical malpractice claims were filed in 2004 with the Medical Mediation Panels.  That is one medical malpractice claim for every 22,916 Wisconsin citizens.  The number of medical malpractice cases has been steadily decreasing since the mid-80s.  This pattern suggests that even when there was no medical malpractice cap on damages from 1991-1995, there was no corresponding explosion of medical malpractice claims.  In fact, there was a decline in medical malpractice filings.  So, the imposition of a medical malpractice cap is simply an additional, but wholly arbitrary, barrier to justice for most families injured by medical malpractice.

One of the most persistent assertions about medical malpractice caps is that they would hold down malpractice premiums for doctors.  The court analyzed several medical malpractice studies and found that “according to a General Accounting Office report, differences in both premiums and claims payments are affected by multiple factors in addition to [medical malpractice] damage caps, including state premium rate regulation, level of competition among [medical malpractice] insurers, and interest rates and income returns that affect [medical malpractice] insurers’ investment returns.  Thus, the General Accounting Office concluded that it could not determine the extent to which differences among states in premium rates and claims payments were attributed to [medical malpractice] damage caps or to additional factors.  For example, Minnesota, which has no [medical malpractice] caps on damages, has relatively low growth in premium rates and claims payments.

Insurance execs speak up
“We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates.”  Sherman Joyce, President of the American Tort Reform Association, (Source:  “Study Finds No Link Between Tort Reforms and Insurance Rates,” Liability Week, July 19, 1999.)

“Insurers never promised that tort reform would achieve specific premium savings...”  (Source: March 13, 2002 press release by the American Insurance Association (AIA).)
“[A]ny medical malpractice] limitations placed on the judicial system will have no immediate effect on the cost of liability insurance for health care providers.”
(Source:  “Final Report of the Insurance Availability and Medical Malpractice Industry Committee,” a bi-partisan committee of the West Virginia Legislature, issued January 7, 2003.)

An internal document citing a study written by Florida insurers regarding that state’s omnibus tort “reform” law of 1986 said that “The conclusion of the study is that the [medical malpractice] noneconomic cap ... [and other tort ‘reforms’] will produce little or no savings to the tort system as it pertains to medical malpractice.”  (Source:  “Medical Professional Liability, State of Florida,” St. Paul Fire and Marine Insurance Company, St. Paul Mercury Insurance Company.

Ed Murnane, the leading tort reform advocate in Illinois, said at a tort reform summit in mid-May, ‘No, we've never promised that caps will lower insurance premiums.’”

This theme was further bolstered by a recent rate filing by GE Medical Protective, which sought a 19% rate increase just one year after Texas voters narrowly approved a $250,000 medical malpractice cap on non-economic damages in all medical malpractice cases.  After claiming that medical malpractice caps would reduce malpractice premiums, the insurer admitted in its rate-filing request that “capping [medical malpractice] non-economic damages will show loss savings of 1%.”

Further, we must agree with the supreme court that, “Victims of medical malpractice with valid and substantial claims do not seem to be the source of increased premiums for medical malpractice insurance, yet the $350,000 cap on noneconomic damages requires that they bear the burden by being deprived of full tort compensation.”

Various new studies have been released to bolster this statement.  In Texas, researchers looking at Texas found that soaring medical malpractice premiums were not correlated with medical malpractice lawsuits and settlements.  A team of legal scholars from the University of Texas, Illinois, and Columbia examined all closed claim medical malpractice cases from 1988 to 2002.  The law professors found that claims rates, payments and jury verdicts in medical malpractice cases were roughly constant after adjusting for inflation and concluded that the premium increases starting in 1999 “were not driven primarily by increases in [medical malpractice] claims, jury verdicts, or payouts.  In the future, [medical] malpractice reform advocates should consider whether insurance market dynamics are responsible for premium hikes.”

A second comprehensive study of medical malpractice claims, this time in Florida, also shows no sharp increase in lawsuits relative to population growth and a modest increase in the size of settlements.  “When we compared the number of malpractice cases to the population in Florida,” said Neil Vidmar, one of the study’s authors and professor at Duke’s School of Law, “there has been no (large) increase in medical malpractice lawsuits in Florida.”  Vidmar said rising health-care costs and more serious injuries resulting in larger claims or litigated payments caused the increase in the medical malpractice claim total.  Finally, the report concludes the “vast majority of million-dollar awards were settled around the negotiation table rather than in the jury room.”  Of the 831 million-dollar medical malpractice awards reported since 1990, 63 were awarded by juries.  The rest occurred as settlements.

The National Bureau of Economic Research study reviewed the relationship between the growth of medical malpractice costs and the delivery of health care in three areas:

(1) the effect of medical malpractice payments on medical malpractice premiums, (2) the effect of increases in medical malpractice liability to physicians closing their practices or moving and (3) defensive medicine.  The study found a weak relationship between medical malpractice payments and medical malpractice premium increases.

A July 7, 2005, study released by Center for Justice and Democracy finds that net claims for medical malpractice paid by 15 leading medical malpractice insurance companies have remained flat over last five years.  Meanwhile, net medical malpractice premiums have surged 120 percent.  During the 2000-04 period, the increase in medical malpractice premiums collected by leading 15 medical malpractice insurance companies was 21 times the increase in medical malpractice claims they paid.  The study shows an “overall surge in [medical] malpractice premiums with no corresponding surge in claim [medical malpractice] payments during the last five years.”

Other key highlights of the study:

• “Over the last five years, the amount the major medical malpractice insurers have collected in premiums more than doubled, while their claims remained essentially flat.”
  
  
• “…In 2004, the leading medical malpractice insurers took in approximately three times as much in premiums as they paid out in claims.”
• “{T}he surplus the leading [medical malpractice] insurers now hold is almost double the amount the National Association of Insurance Commissioners deems adequate for those insurers.”

Wisconsin Unique System:  The Injured Patients and Families Compensation Fund for medical malpractice victims.

A short history of the Injured Patients and Families Compensation Fund may be in order since it has figured so prominently in the discussion of Wisconsin’s medical malpractice system.  Wisconsin’s medical malpractice insurance structure was set up in 1975 to deal with a serious problem in availability of medical malpractice insurance.  The legislature guaranteed the availability of medical malpractice insurance by creating the Wisconsin Health Care Liability Insurance Plan (WHCLIP) as a risk-sharing plan to provide primary insurance coverage and by creating the medical malpractice Patients Compensation Fund (the Fund) to pay medical malpractice claims in excess of primary coverage.  (The legislature changed the Fund’s name in 2003 to the Injured Patients and Families Compensation Fund.  2003 WI Act 111.)  The same board of governors governs both.

The 1975 Statutory Scheme

The medical malpractice statutory scheme is unique:  medical malpractice insurance is mandatory for physicians (except government-employed) and hospitals; primary coverage is from WHCLIP or a private company; the medical malpractice Fund fees are also mandatory and provide unlimited medical malpractice coverage over the primary level.

WHCLIP is run like a medical malpractice insurance company; the medical malpractice fund is not.  Fund fees were originally calculated as a percentage, not to exceed 10%, of the WHCLIP rates.  Fees were to be reduced if additional fees would.

The 1975 legislation contained a potential limitation on payouts.  Wis. Stat. §655.27(6) initially provided,

If, at any time after July 1, 1978 the commissioner finds that the amount of money in the fund has fallen below $2,500,000 level in any one year or below a $6,000,000 level for any two consecutive years, an automatic limitation on awards of $500,000 for any one injury or death on account of malpractice shall take effect. ... This subsection does not apply to any payments for medical expenses.

In March 1980, the medical malpractice law was changed to require an annual report for the medical malpractice fund, prepared according to generally accepted actuarial principles that would give the present value of all claims reserves.

Timeline of the Fund

1975 — Legislature establishes Patients Compensation Fund (Fund) and the Wisconsin Health Care Liability Insurance Plan (WHCLIP).  The legislation required that all physicians carry medical malpractice insurance either from a private insurer or WHCLIP for up to $200,000 and then mandates participation in the fund, which provides unlimited coverage and pays medical malpractice claims in excess of primary coverage.  The same 13-member board of governors governs both.  WHCLIP is run like an insurance company; the medical malpractice fund is not.  The medical malpractice fund fees were originally calculated as a percentage, not to exceed 10%, of the WHCLIP rates, and the fund was not to have more than $10 million in assets.

1980 —The fiscal nature of the fund was changed to give the present value of all claims reserves and all incurred but not reported (IBNR) claims.  IBNR claims are claims that are not presently known but are presumed to exist.  This changed the fund from a form of “pay as you go” system to a system with a potential surplus or deficit.

1986 — The legislature adopts an indexed $1 million medical malpractice cap on pain and suffering.  The medical malpractice fund also collapsed the number of fund classes from nine to four for purposes of calculating fees.

1987 — Doctors’ primary coverage increased to $300,000.

1988 — Doctors’ primary coverage increased to $400,000

1991 — $1 million indexed cap sunsets.

1995 — $350,000 indexed cap adopted.

1997 — Doctors’ primary coverage increased to $1,000,000.

2003 — Fund name changed to Injured Patients and Families Compensation Fund.

Incurred but not reported (IBNR) claims.  IBNR claims are those claims that are not presently known but are presumed to exist; they have played an important role in the medical malpractice fund's financial situation ever since 1980.

The net effect of this medical malpractice statutory change was to change the fund from a form of “pay as you go” system to a system with a potential surplus or deficit based on the annual actuarial reports.  The potential surplus or deficit relied heavily on the projected value of medical malpractice claims reserves and IBNR claims.

The medical malpractice fund was established to pay claims in excess of primary coverage.  Health care providers are required to purchase primary coverage -- $200,000 in 1975, $300,000 in 1987, $400,000 in 1988, and $1,000,000 in 1997.  Fees assessed against all health care providers in the state pay for the medical malpractice fund.  The medical malpractice fund fees are created by administrative rule, providing the legislature with oversight authority.  The medical malpractice fund is divided into no more than four.

The 1986 Legislative Changes
In the early and mid-80s, was a sudden and dramatic requests for medical malpractice premium and fee increases.  This led to a second “crisis” in medical malpractice insurance.  Because WHCLIP and the fund mechanisms worked as intended, Wisconsin did not have problems with availability of insurance as it had in 1975.  Instead, Wisconsin suffered an “affordability crisis”; that is, the dramatic price increases made medical malpractice insurance premiums and medical malpractice fund fees less affordable.

The highest medical malpractice fund fee increase suggested by the actuaries was a 160% fee increase for 1985-86; more than half of the increase was meant to offset a portion of the actuarial deficit.  The legislature would not go along with that huge increase but did approve a 90% fee increase.

The increased cost of medical malpractice insurance led health care providers to lobby the legislature for strong tort “reform” measures, including caps on damages, limits on the attorneys fees of injured consumers, and limits on payments for future medical expenses.  After much debate, the legislature made numerous changes to the law in 1986 including a cap of $l million on all noneconomic medical malpractice damages.  The medical malpractice legislation, however, made few changes to directly address the elimination of the medical malpractice fund’s actuarial deficit.  Nevertheless, medical malpractice fund fees were only moderately increased from 1986 through 1994.  There was virtually no impact on fees after the noneconomic medical malpractice damage cap sunset on December 31, 1990 (resulting in no medical malpractice cap being in effect).

In addition, during the 1980s, the medical malpractice fund collapsed the number of classes from nine to four, thereby moderating costs between general practitioners (Class 1) and neurologists and OB-GYNS (Class 4).

The establishment of the medical malpractice fund represented an egalitarian reform that involved sharing of risk among all providers to hold down malpractice rates.  Consequently, the medical malpractice fund’s premium structure divided the medical profession into just four categories, resulting in substantially lower medical malpractice rates for higher-risk specialties and somewhat higher rates for lower-risk categories.  This sharing of medical malpractice risk helps Wisconsin to retain doctors in high-risk specialties upon whom general practitioners can rely for referring patients in need of more specialized care.

In sharp contrast, the medical malpractice cap on pain and suffering imposed a shift of medical malpractice risk from providers as a whole to patients and the public.  Patients could no longer count on the legal system to give them full compensation for the pain and suffering caused by medical malpractice.  Juries were deprived of the power to fully compensate injured patients.

How Wisconsin doctors are insured against medical malpractice

Moreover, it is precisely the medical malpractice Fund’s unique and progressive features -- not the cap -- that have actually accounted for the decreases in medical malpractice premiums:

a) Non-profit:  The medical malpractice fund is not-for-profit.  In contrast to private insurance corporations characterized by huge executive salaries, massive bureaucracies, and wild swings in premium rates contingent on stock and bond market investments, the medical malpractice fund does not subject Wisconsin medical providers to these burdens.

b) Universal:  The medical malpractice fund is universal, covering virtually all health care providers in the state.  Thus, the medical malpractice fund draws upon a large pool of doctors to share the risk and hold down costs.

c) Sharing the risk:  The medical malpractice fund spreads the cost of insuring against risk across interrelated medical professions, so that high-risk specialties do not bear an inordinately heavy burden of medical malpractice premiums.

Because the medical malpractice fund has been so successful at accumulating assets  -- almost $750 million assets.  As the supreme court noted in Ferdon v. WCFP, 2005 WI 125, ¶158, “The medical malpractice fund has flourished both with and without a medical malpractice cap.  If the amount of the medical malpractice cap did not impact the medical malpractice fund’s fiscal stability and cash flow in any appreciable manner when no medical malpractice caps existed or when a $1,000,000 medical malpractice cap existed, then the rational basis standard requires more to justify the $350,000 medical malpractice cap as rationally related to the fund’s fiscal condition.”

Conclusion

The ominous implications for the constitutional rights of Wisconsin citizens -- particularly injured patients from medical malpractice -- were minimized during the legislative debate in 1995 that imposed the medical malpractice cap on pain and suffering in medical malpractice cases.  Instead, advocates of the medical malpractice cap argued that this loss of legal access for a relative few would be far outweighed through a tradeoff for broader public benefits -- lower health care costs, more doctors in underserved areas and a solvent and stabilized medical malpractice fund for injured patients and their families.

In practice over the past decade, the tradeoff of legal rights for public benefits proved to be disastrous.  While our legal rights certainly were diminished, the promised benefits have never appeared.  Wisconsin does not have lower health care costs, doctors are still not going to underserved areas and the medical malpractice fund was never in jeopardy, it had been in surplus since 1990, the year the $1 million medical malpractice cap expired.

The legislature is following down the same trail again to impose a medical malpractice cap that attempts to ask the most severely injured patients and their families of severely injured patients from medical malpractice to bear the burden of “fixing” the medical malpractice system alone.  That is neither fair nor just.

Medical malpractice caps are a barrier to the courthouse for injured patients and their families and strike at the very heart of the civil justice system.  It deprives juries of their constitutional mandate to do justice in individual cases.  You are once again tilting the scales of justice in Wisconsin against those severely injured patients from medical malpractice (and their families) in favor of health care providers and their insurance companies.

We believe that is not only immoral, but unconstitutional.