July 14, 2005

In a baldly activist move, the Wisconsin Supreme Court decided this morning that it was really a legislature with the power to veto statutes it doesn't like, and voted 4-3 to strike down the non-economic damages cap in medical malpractice actions as violating "equal protection."

[W]e conclude that the $350,000 ceiling adopted by the legislature is unreasonable and arbitrary because it is not rationally related to the legislative objective of lowering medical malpractice insurance premiums.

This is the thinnest of fig leaves, because the court acknowledges that the General Accounting Office found that "medical malpractice suits are one of the leading costs for insurance carriers." Judge Prosser's and Judge Roggensack's dissents dismantle the lead opinion, though that's little consolation to the voters of Wisconsin. (Ferdon v. Wisconsin Patients Compensation Fund (Wis. Jul. 14, 2005); Stacy Forster, "State Supreme Court strikes down pain and suffering caps in malpractice lawsuits", Milwaukee Journal-Sentinel, Jul. 14).

The Journal-Sentinel coverage leaves unrebutted the following defense of the verdict: "[Plaintiffs' lawyer Vincent] Petrucelli said that in the eight years the caps have been in effect, only eight jury awards have exceeded the limits." Press coverage frequently makes the mistake of assuming that only trial verdicts impose costs, when, in fact, the threat of a large judgment can drive up settlement costs as well as the likelihood of long-shot "lottery" litigation.