Tort reform challenges yield mixed results

Passing tort reform is similar to the birth of a child: There's excitement and celebration when the big event happens. After that, there's never-ending worry that it will safely make its way in the world.

Parents worry about their child's health and safety. Tort reform advocates worry that court challenges that could suck the life out of the reforms lurk around every corner.

Some states haven't had much luck getting their newly passed laws off the ground. On the first challenge of new laws in Illinois and Ohio, state supreme courts struck them down.

But even in states where the courts initially held that noneconomic damage caps and other reforms were legal, physicians expect challenges to keep coming.

Among the six states in which the American Medical Association says strong tort reform is helping keep medical liability insurance premiums at a reasonable level -- California, Colorado, Indiana, Louisiana, New Mexico and Wisconsin -- two state courts have recently re-examined tort reform. The results were mixed.

Sleepless nights are over in Wisconsin, at least for the moment.

The Wisconsin Supreme Court gave physicians there a huge victory, opining for 50 pages to uphold the state's limits on what juries can award for pain and suffering and loss of companionship.

Gearing up in Indiana

In Indiana, the restlessness is just getting started as a challenge to tort reform will likely be appealed to the Indiana Supreme Court.

If the court refuses to hear the appeal, a lower court decision handed down this summer that essentially wipes out the strict limits on the length of time children have to sue physicians would stand.

At press time, attorneys were preparing to ask the Indiana Supreme Court to overturn an appellate court decision that allowed a malpractice lawsuit to go forward even though the statute of limitations for minors had run out.

In late June, the Court of Appeals of Indiana ruled that the way that the Indiana statute of limitations is applied to minors is unconstitutional.

Under the law, passed in 1975, a medical malpractice claim must be filed within two years of when the act occurred. One exception is for children younger than 6. They have until their eighth birthday to file suit.

In the case before the court, which was originally filed in April 1994, Trenda Ledbetter claims that birth complications that led to serious and permanent physical and mental injuries were caused by medical malpractice. Trenda's mother never filed a lawsuit because of religious reasons, according to court records.

When Trenda turned 18, she filed a medical malpractice lawsuit against the physicians who delivered her. Under state law prior to 1975, she would have had the opportunity to file a lawsuit until she was 20.

The trial court dismissed the lawsuit, saying the statute of limitations had run out. But she appealed the decision, arguing that the state's law creates two subclasses of minor medical malpractice victims: those whose parents file a claim on their behalf when they are young and those who lose their rights because their parents don't file a lawsuit.

She also pointed out that other torts don't have that restriction when it comes to minors.

The appellate court agreed.

"The classification between minors injured by medical malpractice and minor victims of other torts is no longer reasonably related to the goal of maintaining sufficient medical treatment and controlling malpractice insurance costs," the three-judge panel said in its decision.

"The lack of documents over a 30-year period indicates that neither the insurance carriers nor the health care associations would be adversely affected by a change in the statute of limitations for minor victims of medical malpractice."

Medical associations are expected to challenge that argument in friend-of-the-court briefs once the defendant doctors formally ask for the court to hear the case.

"Our law was based on several different provisions, and each was done as a balance," said Adele Lash, spokeswoman for the Indiana State Medical Assn. "You can't change one point of law without affecting the rest."

Celebrating in Wisconsin

Doctors were relieved to see the Wisconsin Supreme Court make it clear that the state's limit on noneconomic damages awarded in medical malpractice cases is constitutional.

Physicians were equally pleased to see that the court agreed with their belief that plaintiffs are entitled to recover damages under medical negligence or wrongful death, not both.

The protections that physicians have relied on for years were in jeopardy after Yvette and Joseph Maurin challenged the way damages were calculated after they sued for medical malpractice and wrongful death on behalf of themselves and their 5-year-old daughter who died of acute diabetic ketoacidosis in 1996.

A jury found that a physician at Hartford Memorial Hospital was negligent in not diagnosing the girl with diabetes mellitus or acute diabetic ketoacidosis. The jury further found that the negligence caused the girl's death, according to court records. The jury awarded $550,000 to the girl's estate for her pre-death pain and suffering and $2.5 million to her parents in wrongful death damages for their loss of society and companionship.

Under Wisconsin law, those jury awards were reduced to $300,000 total.

The Maurins challenged the law on a couple of grounds.

If physicians had lost either argument, the liability protections would have been weakened.

First, the Maurins argued, they should be allowed to collect damages under both medical negligence and wrongful death.

Physicians worried that plaintiffs then would be allowed to "stack caps," ultimately resulting in higher insurance premiums.

The court sided with physicians, saying that there is a single cap in medical malpractice cases.

"In cases where medical malpractice leads to death, the wrongful death cap applies in lieu of -- not in addition to -- the medical malpractice cap," justices wrote in their July 2 opinion in Maurin v. Hall.

And physicians were pleased to see that the court had no doubt that the language in the Wisconsin law is clear.

"The words 'total' and 'for each occurrence' reveal that the legislature intended a single recovery for each incident or 'occurrence' involving malpractice," the court said.

"The words 'or death' show that the legislature intended to provide a single recovery even if the medical malpractice resulted in a wrongful death. ... If the legislature had wanted to create separate damages for loss of society and companionship ... it could easily have said so with different language."

The Maurins also lost their second argument: That the cap was unconstitutional. They reasoned that a noneconomic damages cap deprived them of their basic right to a jury trial, violated due process and equal protection clauses in the constitution and usurped the power of the trial court.

Again, the court's strong defense of the constitutionality of the statute was a big victory for doctors.

It said that a cap is an appropriate exercise of judgment on the part of the Legislature.

"We do not find that legislative suspension of damages above and beyond a certain limit infringes upon the right of a jury trial when, in wrongful death actions, a jury still determines liability and assesses damages," the court wrote.

While Wisconsin physicians are pleased with the ruling, they know that the celebration can last only so long.

At press time, 99 other statutory challenges were already working their way though the Wisconsin legal system.

"It's a never-ending battle," said Mark Adams, the Wisconsin Medical Society's general counsel. "There are twists and turns. Plaintiffs are always looking at using new legal tactics."