State Bar of Wisconsin

For the Week Of October 17, 2005

Senator Stepp to Step Down

Racine area legislator won't run for re-election in 2006.

Senator Cathy Stepp (R-Sturtevant) has announced that she will not be running for re-election in 2006. In her first term, Sen. Stepp played a key role in advancing several economic development initiatives that were passed and signed into law in the 2003-2004 legislative session. Sen. Stepp supported the Business Law Section's bill on the Chapter 180 revisions. While the legislation was ultimately vetoed, it passed both houses of the legislature unanimously. Stepp was also instrumental in helping the Real Property, Probate and Trust Section pass into law the Uniform Principal and Income Act.

Following her announcement, Racine County Executive Bill McReynolds (R-Racine) announced his intention to become a candidate in the race for the 21^st State Senate Seat. State Rep. John Lehman (D-Racine) stated his intentions to run for the seat several weeks ago.

Governor Doyle Says "No" to State Republicans' Efforts to Curb Patients' Rights

Doyle vetoes "Conscience Clause" bill, no word on any veto override efforts.

Governor Doyle used his veto pen to stop legislation that would have allowed health care professionals to place their own political beliefs above consideration of the health of the patient. This legislation was vigorously opposed by both the Elder Law section and the Public Interest Law Section of the State Bar.

According to the Governor, "Not only could a health care provider refuse treatment, but in such a case, it also contains no provisions to require the health care professional to advise patients of their treatment options, provide a referral for the patient, transfer certain patients, or render care if the patients' health or life is in danger."

This legislation is similar to AB 67, which Governor Doyle vetoed last session. There has been no strong response to the veto, and no signal as to whether the Assembly republicans will attempt a veto override.

Med Mal Reforms on the Fast Track

Speaker Gard's reforms on malpractice caps are scheduled for the Assembly floor this week.

AB 764, 765 and 766, a package of bills drafted to address a recent supreme court decision declaring Wisconsin's caps on medical malpractice unconstitutional, passed quickly out of the committee last week and will be voted on by the entire Assembly on Tuesday, October 25^th. The three bills address separate issues. AB 764 allows evidence of collateral source payments to be introduced in medical malpractice trials and also allows the amount of such payments to reduce the ultimate jury award on damages. AB 765 creates a new definition for the graduate medical education program (the program which employs medical residents) and allows such programs to elect to be subject to the statutory health care liability insurance requirements, and, subsequently, to the caps on non-economic damages. AB 766 increases the amount of the caps on non-economic damages for adults by approximately $4,000. This bill also does not require caps to automatically increase with inflation.

This flurry of activity follows in the aftermath of Ferdon v. Wisconsin Patients Compensation

Fund, 2005 WI 125 (2005), in which the supreme court of Wisconsin found the current limits on non-economic damages in medical malpractice cases to be unconstitutional, ostensibly because they were too low.

During the public hearing on the bill, Rep. Gregg Underheim was critical of the medical profession. The Oshkosh Republican noted that when the caps were reinstituted in 1995 there was an understanding that physician discipline would be toughened. However, notes Underheim, since then the medical community has thwarted all attempts to heighten scrutiny and discipline of medical professionals. This is important, according to Underheim because the medical malpractice insurance marketplace does not act to "weed out" bad practitioners in Wisconsin due to the existence of a state fund (the Injured Patients and Families Fund) that provides excess liability coverage.

While Governor Doyle has not promised a veto of the package of reforms, he has stated that the new proposal is similar to the law already struck down by the court and he does not think it will pass constitutional muster. "To just sort of put it right back in the court's face is sort of a political move and may well end up being thrown out years from now," said Doyle, "and nothing will have been accomplished."

Capitol Update