The first deposition I ever took was of a plaintiff in a neurosurgery malpractice case which my New York law firm was defending. Coming from a family of doctors and lawyers, this practice area grabbed me and took hold of my interest and passion. I was lucky enough to continue practicing in this area after relocating to Wisconsin in 1995.

Far Fewer Cases Are Being Filed

But Wisconsin’s tort reform efforts have been far more successful – or draconian, depending on your point of view – than in many other states. Most Wisconsin attorneys who practice in the area of medical malpractice will tell you that far fewer cases are being filed and litigated now than in years past.

This is more than anecdotal – the data confirms it.

• Randy Sproule, Director of the Medical Mediation Panels (a legislative-created entity under Chapter 655), has tracked statewide data on medical malpractice filings since 1987. In 1987, 410 requests for medical mediation were filed. (One must file a Request for Mediation either before or in conjunction with filing a lawsuit.) In contrast, there were 116 medical mediation requests in 2016. This represents a decrease of 72 percent. Moreover, many of the 116 requests are now brought by pro se claimants and never proceed to a lawsuit.


• This drop-off is even more dramatic when one looks at jury trial numbers in medical malpractice cases. Sproule also tracks jury trials; however, his numbers depend upon attorneys responding to his surveys. The largest number of medical malpractice trials reported over the last two decades was in 1992, with 60 jury trials. (Note: This was during a period of time where no statutory caps were in place.) Compare that to 2015 with only five reported jury trials. That represents a 92 percent decrease since 1992.


• Sproule has also kept track of plaintiff vs. defense verdicts. Averaging all trial data (694 trials between 1989 and 2015), the defense has prevailed in 73 percent of those trials.

What Accounts for these Trends?

I surveyed my colleagues on both sides of the bar for answers:

Cases are Expensive
First and foremost, these cases are extremely expensive. They are probably the most expensive civil cases to either pursue or defend. Both sides indicate that these cases can cost over $100,000 for experts alone. Many cases require multiple experts, who are often flung far and wide. One colleague mentioned that a videotaped doctor’s deposition, which only took an hour and a half, cost $15,000.

Because of this expense, far fewer plaintiffs’ firms are willing to take on these cases, when they are statistically tough to win and subject to caps on recovery (see below). Insurers typically foot the bill on the defense side, but they too are mindful of defense costs.

Most Cases Go to Trial

Unlike other areas of personal injury, these cases more often than not do not settle. My colleagues estimate that 80 to 90 percent of medical malpractice cases are tried. Why?

• On top of the obvious issue that physicians want to defend their clinical decision-making, settlements or verdicts can have serious professional ramifications for physicians, unlike other professions. Chief among these consequences are mandatory reporting obligations to the state’s licensing agency and the National Practitioner Data Bank. Such reports must be filed by the hospital, clinic or insurer. These unique reporting obligations don’t exist in other types of personal injury cases, nor in other professional malpractice actions. While not every settlement or verdict results in disciplinary action, many do.


• Physicians are understandably concerned that a settlement or adverse verdict can have detrimental ramifications on their livelihoods. Every time they apply for a new job, or apply for privileges at hospitals or health insurers, the settlement or verdict must be reported, explained, and can form the basis of further action against them. These reporting obligations create a chilling effect on the prospect of settlement, even in smaller cases which could theoretically be settled for smaller amounts.


• Others opine that the existence of the “Injured Patients and Families Compensation Fund” – which provides excess compensation for any award over a million dollars, provides security to health care providers in fighting these claims. The “Fund” also retains its own counsel and has the right to play an active role in defending a case.

Tort Reform Caps Damages

Tort reform is, of course, a major factor conceded by all.
   

• Unlike other types of personal injury damages, since 1986 there are caps on noneconomic damages – currently $750,000 (Wis. Stat. § 893.55(4)(d)(1)).


• In a wrongful death case, the damages are $500,000 for a deceased minor, or $350,000 for a deceased adult (Wis. Stat. § 895.04(4)).


• Caps are even more striking where the health care provider is considered a state employee or a governmental body, in which case the allowable amounts are either $250,000 or $50,000, depending on classification (Wis. Stat. § 893.80 and Wis. Stat. § 893.82). Since many health care providers fall under the umbrella of university teaching hospitals, those claims are rarely worth pursuing, since the plaintiff will spend far more to pursue the case than he or she could ever recover.

The statutes and caps have thus far withstood legal challenges.

The Future

So, what is the future for medical malpractice litigation in Wisconsin? One colleague (who practices almost exclusively defense) said it was ‘very gloomy’ and noted that the few experienced plaintiffs’ attorneys in this area are getting up in age, with no new generation of attorneys on the horizon. The consensus is that this is unlikely to change unless legislation also changes – also seen as unlikely at present.

Whether this state of affairs represents a success or failure on the part of tort reform lies squarely in the eye of the beholder.