Wisconsin families can sue on 2 counts in death cases

Doctors fear allowing two claims for noneconomic damages will jeopardize the cap set for medical liability cases.

By Amy Lynn Sorrel — Posted Aug. 14, 2006

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The Wisconsin Supreme Court overturned its own ruling that wrongful death claims were limited to the state's $350,000 cap on noneconomic damages in death cases. The court in July said families also could collect pain and suffering awards under a separate $750,000 cap in general medical liability cases.

The two standards "do not provide a double recovery, but a recovery for a double wrong," wrote Judge Wilbur W. Warren III.

The ruling undoes a 2004 opinion from the state's high court that said plaintiffs could bring only the wrongful death claim. The same judges are on the bench, but said the prior ruling was flawed because it did not note the distinction under Wisconsin law between pre- and post-death claims. The reversal restores a $1.2 million verdict to the family of Helen Bartholomew, who had a heart attack in 1998 that resulted in brain damage and her death five years later.

Doctors say the ruling adds another element of instability on how caps will be applied. "Laws should provide some degree of certainty to parties and patients, and if that element is removed, then we have to wonder if the new cap and the wrongful death cap are in jeopardy," said Ruth Heitz, general counsel of the Wisconsin Medical Society.

The constitutionality of the wrongful death cap remains intact because it was not challenged, Heitz said. But the ruling may not bode well for the permanency of the current cap in general medical liability cases, which was approved in March, she said.

Trial lawyers praised the reversal. "This is a decision that balances the scales of justice by allowing families like the Bartholomews to fully recover all damages," said Paul Gagliardi, the family's attorney and treasurer of the state Academy of Trial Lawyers.

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