THE VALUED VOICE

The eight months from July 2005 to March 2006 were pivotal for Wisconsin’s comprehensive medical liability system. In July 2005, a divided Wisconsin Supreme Court disrupted the balanced system by finding the cap on noneconomic damages that existed at the time unconstitutional. On July 14, 2005, the day the Supreme Court found the cap unconstitutional, WHA held a Capitol press conference to explain how Wisconsin's balanced system supports key health care goals, such as access to care, and to emphasize the importance of reinstating a cap.
 
Background
The Wisconsin Legislature established Wisconsin’s comprehensive medical liability system in 1975. The Injured Patients and Families Compensation Fund (the Fund) was created then as part of a balanced system that ensures payments for those injured by medical malpractice and, at the same time, controls liability. The Fund, which is supported through assessments on providers, mainly hospitals and physicians, guarantees payment of 100% of all settlements and judgments for economic damages arising from medical malpractice. Payments for noneconomic damages are limited to $750,000 for each claim, the limit established in 2006.
 
Push to Protect Balanced System
Soon after Supreme Court struck the cap in effect in 2005, the Assembly established a “Medical Malpractice Task Force” that found that “a reasonable cap on noneconomic damages serves as a rational basis [in] the Legislature’s plan to ensure that successful malpractice plaintiffs are able to recover appropriate damages.” The Task Force wrote that “medical liability reform is part of a broad legislative strategy designed to keep health care affordable and available in Wisconsin.”
 
After legislative hearings that included reports from actuaries, testimony from other experts, and significant debate, 62 members of the Legislature, including members from both parties, co-authored legislation that would establish a cap on noneconomic damages of $750,000. Former Supreme Court Justice William Bablitch and noted UW-Madison Law School constitutional law expert Gordon Baldwin weighed-in, indicating their strong belief that the proposed cap was constitutional.
 
A new cap of $750,000 on noneconomic damages, which passed the Legislature with overwhelming, bipartisan majorities in both houses, was signed into law by then-Governor James Doyle in March 2006. Recognizing the Legislature’s and the Governor’s efforts, then WHA President and CEO Steve Brenton said, “They looked into the future, saw the brewing access crisis, and did something about it.”
 
System Remains Strong
WHA President and CEO Eric Borgerding, who, in 2005-2006, led WHA’s lobbying effort related to the new cap, noted then, “WHA followed a strategy of partnering with our allies in the Wisconsin medical community, talking about the facts and realities of what is happening in this state.” Steve Brenton said, “This was a massive, multi-faceted strategy and is a prime example of how to do things the right way in the Capitol.” Twelve years later, on June 27, 2018, the Wisconsin Supreme Court upheld the $750,000 cap on noneconomic damages.
 
Borgerding recently observed, “Wisconsin’s balanced medical liability system has supported one of the Legislatures’ main goals: affordable and accessible health care in Wisconsin.”