WISCONSIN SUPREME COURT ELECTION Medical malpractice in Wisconsin: Could Supreme Court election change precedent? A liberal court once struck down caps on payouts to victims and then a conservative court upheld them. Would a liberal majority revisit the issue? By Matt Mencarini Wisconsin Watch In the past two decades, the Wisconsin Supreme Court has flip flopped on whether a limit on damages in medical malpractice lawsuits is constitutional. In three cases involving people who suffered horrific, life-altering injuries or died due to negligence from doctors, the court set three different precedents, including one that overturned one of those precedents. In Tuesday’s Supreme Court election, liberals could retake a majority for the first time in 15 years, meaning issues previously settled by the conservative-controlled court could be revisited — again. Back in 2004, the court ruled the state’s $300,000 cap on noneconomic damages — money a jury awards to compensate for pain and suffering — was constitutional in a medical malpractice wrongful death case involving a 5-year-old girl who died when a doctor failed to diagnose her acute diabetic ketoacidosis. A year later, after a liberal justice was appointed to replace a conservative one, the court tossed a cap involving injury but not death, finding it violated the equal protection clause of the state constitution. In that case, a doctor’s error when delivering a baby left the boy’s arm deformed. Then, 13 years later in 2018, a conservative-dominated court ruled that the new cap set in 2006 at $750,000 did not violate that same part of the constitution. The case involved the failure of doctors to diagnose a catastrophic infection in Ascaris Mayo, leading to amputation of all four of her limbs, who had been awarded more than $15 million by a jury. As the medical malpractice issue shows, sharp changes in case law hinge on how the sitting justices view the importance of judicial precedent. At their only debate on March 21, both candidates were asked that question. Both said they were open to overturning precedent. Liberal Milwaukee County Circuit Judge Janet Protasiewicz used the U.S. Supreme Court examples of the 1896 case, Plessy v. Ferguson, which found racial segregation in “separate but equal” public accommodations to be constitutional; and Brown v. Board of Education, a 1954 decision that struck down Plessy as discriminatory when it comes to public schools. “Precedent changes when things need to change to be fair and work well for absolutely, you know, everybody in our society and everybody in our community,” she said. “So of course, we give great, great weight to precedent, but it doesn't mean that it doesn't change from time to time.” Former Wisconsin Supreme Court Justice Daniel Kelly didn’t cite an example, but said justices must look at how current precedent comports with the “original authority” contained in a specific statute or section of the constitution. “We don’t want to simply follow what’s been done before if we know it’s wrong,” the conservative former jurist said. “To do that would just be to propagate errors from now until the end of time. And that’s not what we do. And that’s not the role of the court.” Kelly was in the majority for the 2018 precedent-setting case that upheld the $750,000 cap in the Mayo case but did not author a separate opinion. Stare decisis at the Wisconsin Supreme Court Precedent is often addressed at length in briefs to the court and between justices as they draft opinions. The arguments revolve around stare decisis, (Latin for “let the decision stand”) the notion that justices should honor precedents set by their own courts to provide consistency and enhance public perception of the court’s integrity. Writing in the 2005 case that found the medical malpractice cap unconstitutional, then-Chief Justice Shirley Abrahamson dismissed arguments the court should uphold a precedent set just a year earlier. Precedent is “not mechanical in application, nor is it a rule to be inexorably followed,” she wrote, adding that stare decisis didn’t apply because the 2005 case was about a grievous injury, not a wrongful death. Precedents are intended to ensure that courts have strong reason to overturn past decisions, due to changes in the law or circumstances. Writing a dissent in the Mayo case, Justice Ann Walsh Bradley noted the court’s precedent from 13 years prior rejecting the malpractice award cap. She cited another state Supreme Court opinion that said justices shouldn’t overturn past cases “merely because the composition of the court has changed." Chad Oldfather, a Marquette University Law School professor who teaches state constitutional law, said the Supreme Court has overturned its own precedents in recent years, but the liberal justices have frequently made the point that the court shouldn’t do it often. “So I think that, too, plays a role here,” he said, “in the sense that it's going to make them less inclined to revisit questions because they've been, you know, sort of singing this song consistently for the past few years of 'No, we really ought to adhere to what we've decided in the past.’ ” Courts play role in medical malpractice law In 2014, the Milwaukee Journal Sentinel reported the number of medical malpractice lawsuits filed in Wisconsin had dropped by more than 50% since 1999. The balance in the state-run insurance fund — created to avoid rising malpractice insurance premiums — had ballooned to $1.15 billion, the newspaper reported, a total larger than all the money it has paid out during its 39-year history. That year, $21.6 million was paid out in Wisconsin malpractice cases, the lowest annual total since 1990, according to federal data. The fund surpassed $1.2 billion in 2020 and, according to a report released in March, has decreased but remains above $1 billion. In 2022, $20.1 million was paid out in malpractice payouts. And since 2014, nine medical malpractice insurance policies increased in cost and the same number either stayed flat or decreased, according to Medical Liability Monitor, a trade publication that tracks rates. J. Michael End, a Milwaukee medical malpractice attorney, said he thought the horrible circumstances before the Supreme Court in the Mayo case presented justices with the best reasons he had seen to prove the cap should be tossed for good. “I thought that if there was ever a case that would’ve brought about a change in the law, that was it,” End said. End was cautious to predict whether a medical malpractice cap case would return to the Supreme Court if Tuesday’s election goes in Protasiewicz’s favor. But it could, perhaps years from now. End said any challenge to the cap would likely take years, noting the Mayo decision came eight years after the plaintiff lost her arms and legs in 2011. Because there are now fewer medical malpractice cases, the pool of possible challenges is relatively small. A lawsuit would also need to have noneconomic damages in excess of $750,000, with rulings from the trial court judge and Court of Appeals that allowed for the case to even reach the Supreme Court. “There may well be the opposite result someday,” End said, “because we’re going to have new justices on the Supreme Court.” Kelly didn’t respond to questions for this story. Protasiewicz declined to say which case — the one tossing or the one affirming the cap — should be precedent in Wisconsin, saying she’d have to hear a case and its arguments before reaching a conclusion on what should be done going forward. “There should be a very high bar to overturning prior decisions,” she told Wisconsin Watch when asked her views on precedent. “If a precedent is no longer workable or doesn’t meet constitutional standards, reversing precedent can happen, but those examples should be few and far between.” The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates. ________________ *** For immediate release Thursday, March 30, 2023 *** Supreme Court Precedent SIDEBAR: 996 words Wisconsin’s three precedent-setting malpractice cases explained From a devastating birth injury to an untimely death and loss of all four limbs, the state Supreme Court has come down both ways on malpractice caps over 17 years. By Matt Mencarini Wisconsin Watch In March 1996, 5-year-old Shay Maurin died of acute diabetic ketoacidosis. When Shay began feeling sick, her mother took her to a West Bend doctor who diagnosed her with an ear infection, prescribed antibiotics and recommended she get tested for diabetes. Her mother took her to a hospital the next day due to rapidly worsening symptoms, but the doctor sent her home after failing to diagnose her condition correctly. The next day they returned to the hospital and a different doctor made the correct diagnosis. Shay was transported to a children's hospital but she lost consciousness during the ambulance ride and later died. Her parents sued and a jury awarded $3 million in damages, but the state’s cap meant they’d see just a small portion of that. The family argued to the Supreme Court that because the Legislature had changed the cap several times over the years it had “no basis in fact and is completely arbitrary.” However, Justice David Prosser wrote for the majority that “periodic changes” by lawmakers “suggest legislative attention and thoughtfulness, not arbitrary action.” The court upheld the limit on noneconomic damages in medical malpractice wrongful death cases, and Shay’s parents received $300,000. The Ferdon case sets a new precedent The same year Shay died, a doctor delivering Matthew Ferdon pulled on the baby’s head in a manner that caused obstetric brachial plexus palsy, causing Ferdon’s right arm to be partially paralyzed and “deformed.” He underwent surgeries and occupational therapy, but the baby’s arm would never function normally. The jury awarded Ferdon about $1.1 million, with $700,000 of the award for noneconomic damages. The cap, set at $350,00 but adjusted for inflation, was reduced by a judge to $410,322. In a 4-3 decision, the Supreme Court struck down the cap, saying it separated injured patients into two groups, those who got noneconomic damages below the cap and those who got noneconomic damages above the cap. The first group would get the full jury award. The second group would not. Chad Oldfather, a Marquette University law school professor who teaches state constitutional law, said the decision was a departure from the court’s usual standard that’s very deferential to the Legislature, requiring the court to find a law unconstitutional “beyond a reasonable doubt.” Then-Chief Justice Shirley Abrahamson, writing the majority opinion, said judicial deference to the Legislature’s role in writing laws doesn’t mean the justices should “acquiesce in the constitutionality of every statute.” The Ferdon came down to a single vote. Justice N. Patrick Crooks sided with the majority but wrote a separate concurring opinion to make clear he felt that a cap wasn’t automatically unconstitutional. “But there must be a rational basis so that the legislative objectives provide legitimate justification,” he wrote, “and the cap must not be set so low as to defeat the rights of Wisconsin citizens to jury trials and to legal remedies for wrongs inflicted for which there should be redress.” A year later, the Legislature held hearings, listened to testimony and set a new cap at $750,000. Oldfather said he thinks the court made a “rhetorical mistake” in Ferdon by saying it used a “rational basis with teeth” to review the cap’s constitutionality. “That ended up being the thing that the subsequent majority reversing course on that seized on,” he said. Protasiewicz told Wisconsin Watch that both standards are “valuable” and that the U.S. Supreme Court has used both in its opinions. “Rational basis with teeth has been critical in cases involving state action taken against disadvantaged groups and is an important element when ruling on the constitutionality of a statute that finds itself in this category,” she said. She added that she didn’t think the court “necessarily erred” in using this standard in Ferdon, but couldn’t say how she’d rule in a hypothetical case if elected. Conservatives uphold new cap In 2011, Ascaris Mayo went to a Milwaukee emergency room with abdominal pain and a high fever. A physician and physician's assistant told her to see her gynecologist because she had a history of uterine fibroids. The next day, when her symptoms remained, she went to another Milwaukee emergency room where doctors diagnosed her with sepsis from an untreated infection. She subsequently suffered organ failure and all four of her limbs were amputated. A jury awarded her $8.8 million in economic damages, plus more than $15 million in noneconomic damages, which, because of the 2006 cap, would be reduced to $750,000 — a 95% cut. The trial and appellate courts ruled the cap violated the constitution, consistent with the 2005 precedent. A new Supreme Court heard oral arguments in April 2018. Then-Chief Justice Patience Roggensack, writing for the 5-2 majority, said the Ferdon case “erroneously invaded the province of the legislature” and applied the wrong standard. The court reverted to the previous standard — under which a statute must be found unconstitutional beyond a reasonable doubt. “By enacting the cap, the legislature made a legitimate policy choice, knowing that there could be some harsh results for those who suffered medical malpractice and would not be able to recover the full amount of their noneconomic damages,” Roggensack wrote. “However, any cap, by its very nature, will limit the amount that some people will be able to recover. If the cap did not do so, it would have no economic effect.” ‘Not a sufficient deterrent’ Deirdre Gilbert, national director of the nonprofit consumer advocacy group National Medical Malpractice Advocacy Association, said caps and hurdles to lawsuits only add to suffering of patients or the families of those who died. Those barriers, she said, can be “devastating” for families seeking justice when they discover limits on damages mean attorneys are unlikely to help them when someone is hurt or killed. No one is willing to help, which can lead to anger and sometimes much worse. “There have been several people who because they could not get any assistance, whether they were harmed themselves or their loved ones, committed suicide,” she said. Paula Berg, a professor at the City University of New York School of Law who specializes in health care and tort law, said the “gigantic awards” that hospitals and insurance companies fear only come when someone has “suffered absolutely horrific injuries.” “And by that I mean they’re basically paralyzed or their injuries are going to cause tremendous amounts of pain,” she said. “And to not fully compensate that is very unfair and not a sufficient deterrent (to negligent doctors).” The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.