Wisconsin jury award is largest since caps dissolved

Physicians and hospitals are pushing to reinstate caps on noneconomic damages before the legislative session ends in March.

By Amy Lynn Sorrel — Posted Feb. 27, 2006

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A Wisconsin jury delivered an $8.4 million verdict award, including $4.25 million in pain and suffering damages -- the largest award in a medical liability case since the state Supreme Court tossed out caps on noneconomic damages in July 2005.

If caps were still in place, the jury could have awarded only $445,775 in pain and suffering, also known as noneconomic damages.

A Dane County jury on Jan. 31 found Madison, Wis., general surgeon Paul Huepenbecker, MD, and Dean Health System negligent in performing acid reflux surgery on Jessica Greenfield. The woman sued after she suffered gastrointestinal problems that left her disabled after the surgery.

In a statement, Dean Hospital System denied the allegations that the doctor was negligent and said it was evaluating the possibility of an appeal. "Clearly the recent removal of the caps for noneconomic damages allowed for a significant award for pain and suffering," the hospital said.

The medical community said the award confirms its fears that growing awards in medical liability cases will encourage more lawsuits and lead to rising insurance premiums. Doctors and hospitals have expressed an urgency that legislators support reinstating a cap on the pain and suffering damages that juries can award.

Large awards like the one in Greenfield's case "put a chilling effect on the doctor-patient relationship because of the constant threat ... of doctors being sued for a bad outcome whether they are negligent or not," said Mark Belknap, MD, Wisconsin Medical Society president.

Dr. Belknap said medical liability insurance rates are expected to increase 15% in Wisconsin this year, after a period when the state saw stable rates while most of the rest of the nation was experiencing large increases.

Wisconsin doctors also expect to see a 25% increase in what they pay into the state Injured Patients and Families Compensation Fund, said Eric Borgerding, senior vice president of the Wisconsin Hospital Assn. The fund kicks in to help physicians pay medical liability awards that exceed $1 million.

Trial lawyers, however, contend that fund premiums are still less than they were five years ago with caps, and that Wisconsin's problems are "overblown," said Daniel Rottier, Greenfield's attorney and president of the Wisconsin Academy of Trial Lawyers.

But Borgerding said the verdict also would continue to make it more difficult to recruit new physicians to the state, in turn hurting patient access to care. "We are consistently hearing from our recruiters that physicians are cancelling appointments [to interview for jobs], which started immediately after the cap was overturned," he said.

The state medical and hospital societies are collaborating on a bill that proposes a $750,000 cap on noneconomic damages and are pushing for Gov. Jim Doyle's approval before the Legislature recesses in March.

In December 2005, the governor vetoed a proposal that would have limited damages to $450,000 for adults and $550,000 for minors.

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