50 Shades of Malpractice

Mark Crane

Disclosures

February 27, 2017

In This Article

Caps on Awards; Statute of Limitations for Bringing Suits

Wisconsin

Caps on awards for pain and suffering have made an impact. Some would argue that they've gone too far, and that physicians who have committed clear negligence are not being sued as a result.

Medical malpractice suits have reached an all-time low in Wisconsin because of caps on awards for pain and suffering, tighter rules about who can sue, and the high cost of bringing a suit. The number of suits fell to 84 in 2014 from 140 in 2013 and 294 in 1999.

The Milwaukee Journal Sentinel recently highlighted several cases of apparent negligence where there was no lawsuit. In one case, a woman died after a breathing tube was mistakenly inserted into her esophagus at a hospital ED. That and other serious errors in care were confirmed by state investigators. Still, her three adult children were unable to find an attorney willing to file suit. State law allows only spouses and minor children to sue for loss of companionship in a medical malpractice death case. The patient was divorced.

Several plaintiffs' attorneys told the newspaper that they shun medical cases because the chances for recovery are so slim. Noneconomic damages are capped at $750,000. Lawyers said they often must invest up to $100,000 in cases. Michael Matray, editor of the Medical Liability Monitor, agrees and said that lawyers are only taking cases that are "slam dunks."

Ruth Heitz, general counsel for the Wisconsin Medical Society, said, "Some of the decline in cases is due to doctors and hospitals getting it right. There are fewer incidents of medical negligence."

Wyoming

There are instances when a person can bring a malpractice claim well beyond the stated time frame allowed for filing suit after treatment.

A surgeon operated on a 12-year-old boy for appendicitis in 2007 and discharged him the following day. Complications required additional surgery and treatment. The child's parents filed a claim for malpractice in 2011.

A trial court dismissed the lawsuit on the grounds that it was filed after the state's 2-year statute of limitations had expired. Historically, a minor has until the age of majority plus 3 years (21 years of age) to file a lawsuit. However, the Wyoming legislature in 1976, at the height of a crisis in malpractice insurance, enacted laws that required all persons, including minors, to bring a medical malpractice claim within 2 years of treatment.

The parents appealed, and the Wyoming Supreme Court ruled last year that the laws were unconstitutional on public policy grounds. The court had concerns that a minor child's legal remedy could be barred if his parent or guardian failed to act in a timely manner. The decision was in line with decisions in many other states.

The court said it was unrealistic to rely on parents or guardians who may be "ignorant, lethargic, or lacking concern" to bring the action to protect the minor's rights. Even if dedicated guardians had reasons for not bringing suit on a minor's behalf, the court held that restricting a minor's right to sue would be unfair and unreasonable.

The court reinstated the lawsuit against the surgeon.

Correction: This article incorrectly stated that "A study published in the New England Journal of Medicine [1] found that an amazing 99% of physicians in 'high-risk' specialties have been sued." The physicians were projected to face a claim.

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