June 29, 2014

"The number of medical malpractice lawsuits filed in Wisconsin fell to 140 last year, a drop of more than 50% since 1999."

"At the same time, a state-run malpractice insurance fund — created because of fears that medical malpractice insurance premiums would skyrocket without it — has grown to more than $1.15 billion, a total larger than all the money it has paid out during its entire 39-year history."


who-knew said...

I read the article and I it reads to me like it was written by the trial lawyers lobby. The first sign is that they gripe about an economic cap on NON-ECONOMIC losses. And the complaints about the size of the malpractice fund were superficial, it takes a lot of math to figure out what the correct size of insurance reserves should be and you'd have to be an actuary to decide whether or not these were too large. There was no where near enough information in the report to answer that question.

The Crack Emcee said...


It's what most of you live on.

That and stolen goods,...

Sam L. said...

Obviously, time to change the formula.

Krumhorn said...

More and more, there is much that the state of Wisconsin can teach the rest of us about public policy. And cheese.

Not every unhappy outcome should be a source of riches for the plaintiffs bar or the family of the deceased. In the scheme of things, I wonder what a contributory negligence or a comparative negligence analysis would conclude regarding the proximate cause of her death? The tube improperly inserted in a chaotic emergency room? Or the circumstances under which the dead woman managed to flip her car?

The John Edwards of this world have sucked us dry for far too long. Congrats! you cheeseheads.

- Krumhorn

Michael K said...

The plaintiff bar sure got their money's worth from that article.

California made somewhat similar reforms in 1975 and, at least when I was in practice, that stabilized the system. The big numbers are non-economic damages, also called "pain and suffering." That is where John Edwards made his money.

Patients should be "made whole" and minor children protected. The pain and suffering damages are where the art of lawyering comes in.

Errors are made in intubating patients in trauma care, often by the paramedics at the scene. Most paramedics are trained to use an esophageal airway system that goes down the esophagus and has holes above a balloon that occludes the esophagus below. That way the air goes back up to the pharynx and down the trachea. Most tubes go most easily into the esophagus, not the trachea, hence the use of the OEA (Oral-Esophageal Airway). The problem comes if the paramedic gets the tube down the trachea. The balloon then obstructs the trachea and no air goes to the lungs. Paramedics aren trained to listen and make sure the air is going into the lungs.

Doctors don't use the OEA. They use endo tracheal tubes. The same rules apply about checking. I have personally seen a patient come in with the OEA down the wrong tube. The paramedics get very angry if you suggest that.

It can be hard to tell what happened. If the doctor suspects the OEA is down the trachea, he will instantly pull it and put down an endotracheal tube. Then the "evidence" is gone.

The lawyers are complaining about what sounds like sensible reform. The California trail bar spends millions trying to reverse the 1975 reforms almost every year. So far, it has held.

MadisonMan said...

I'm surprised that the fund hasn't been raided by the state govt in an attempt to "balance" the books.

who-knew said...

Madison Man is surprised the fund hasn't been raided. I believe Gov. Doyle tried that and was slapped down by the courts

traditionalguy said...

The point is that capping damages makes suing itself useless from a financial outcome possibility.

The result is that seriously injured and survivors of the unnecessarily dead are now uncompensated for medical negligence damages.

But the public's hating of lawyers addiction gets fed.

It is enough to make an intelligent conservative vote liberal.

Michael K said...

"The point is that capping damages makes suing itself useless from a financial outcome possibility.

The result is that seriously injured and survivors of the unnecessarily dead are now uncompensated for medical negligence damages."

By "uncompensated" do you mean millionaires ? That is what is the effect of caps on NONECONOMIC damages.

"It is enough to make an intelligent conservative vote liberal."

I assume you are calling yourself an "intelligent conservative." Doesn't sound like it. You sound just like a plaintiff lawyer. I don't know any conservatives in that group.

William said...

There has been a marked decrease in heavy drinking and drug use in the past ten years. This is particularly true of orthopedic surgeons.

Dad29 said...

I'm surprised that the fund hasn't been raided by the state govt in an attempt to "balance" the books

Why? Jim Doyle left office.

traditionalguy said...

Michael K....These destroyed lives did not asked to be injured so that they could cheat the medical system.

So why do you fear a just judgement of the truth in a court

The answer is to protect the wrongdoers' Insurance Companies. That is the intelligent truth of the matter.

How is it relevant that a lawyer makes money too, Mr Conservative?

Envy over other people daring to have money is an evil disease hiding behind Conservative politics. Ronald Reagan never fell for that BS.

Chuck said...

traditional guy: Let's do some math together.

Let's presume a meritorious wrongful death case. Where the economic damages are something like $250,000 and the noneconomic damages are capped at $750,000 unde Wisconsin law. That, by the way, is an extremely modest economic damages claim for anyone who is working and supporting someone else. As is the case in most tear-jerking plaintiff cases.

So that's a million-dollar claim. Out of which a plaintiff attorney, working on a contingency basis, must advance all costs out of any potential judgment. Let's forget about the time element (malpractice cases frequently take two years to get to trial) because a jury verdict usually contains a generous prejudgment interest component added on.

If costs are $100,000 (for a trio of hired-gun experts, transcripts, copying, outside investigation, travel, etc.) that leaves a cool $900,000 plus interest. Out of that the attorney gets 1/3 as a fee. (It can be more in Wisconsin, right?) So that's a $300,000 payday.

All that the plaintiff's contingency fee attorney has to do, is limit himself to meritorious cases. But they are rare. They are rare, because doctors and hospitals are by and large doing very good work. Mistakes sometimes happen; usually they are mostly harmless errors. Bad results sometimes occur; those bad results are usually because it is the nature of people that they get sick and sometimes die. What's rare is the combination; a medical error that also causes serious harm. It happens, but it is rare.

The trial bar is dependent upon the risky cases; the ones where there is a patient who is dead or brain-damaged or permanently disabled, and yet the defendant doctors and a half-dozen local, credible, honorable, preeminently-qualified medical experts agree that nothing was done wrong in the case. Those cases SHOULD be taken to trial and SHOULD be won by the defense.

Med-mal defense lawyers (I am one) never go to trial on the cases where there is clear liability. When the plaintiff has a good claim, it gets settled. That's why we have 94% success rates in jury trials. We are going to trial with the winners. We are pre-selecting them. It's not magic. The juries are doing the right thing in those cases.

Phil 314 said...

Why are med mal news stories all the same?

Emil Blatz said...

How can Robert Habush afford to eat?

MadisonMan said...

Why? Jim Doyle left office.

As if TT and his successor (what was his name? Scott something?) didn't do the same (although they also had all that tobacco money to fritter away too.

MadisonMan said...

McCallum. Had to look it up! I guess he was pretty forgettable.

Michael K said...

"How is it relevant that a lawyer makes money too, Mr Conservative?

Envy over other people daring to have money is an evil disease hiding behind Conservative politics. Ronald Reagan never fell for that BS."

The lawyer makes plenty of money Mr Leftist lawyer.

As a matter of fact, I have done many med-mal cases for plaintiffs as an expert. I have no problem with meritorious cases. However, the greedy plaintiff bar has killed the goose that lays the eggs by the ridiculous class action cases like silicone and tobacco and asbestos. Alabama, which I am quite familiar with, has become hostile to all plaintiffs because of the bad effects of these excesses on the jury pool.

traditionalguy said...

Michael K... You just did it again. You declared yourself the righteous conservative whose job it is to deny victims in meritorious personal injury cases deserving legal compensation, because you must make them hostage to your revenge need at some bad result publicized class action cases that have nothing to do with them. You are proudly doing serious category conflation to win an argument.

Bottom line, you are making yourself into a divine wind Kamikase willing to die to save nasty Insurance Emperors from reality.

Why are you doing that to yourself? One day you or a friend will have one of those meritorious victim claims that you are so proud to fly to death in hopes of sinking a trial lawyer.

Peter said...

Tort law is a horrible way to compensate patients for malpractice because it turns compensation into a crap shoot in which much of the compensation is consumed by the legal process itself.

Medicine balances risk against benefits; risk cannot be eliminated without also eliminating the benefits. Yet all too often, whenever there is an adverse outcome without malpractice the physician is sued.

They are sued in such cases because all too often a sympathetic jury will award damages just because the patient is needy, and the jury figures "it's just the insurance company" so why shouldn't it pay? It's always easy to show compassion by giving away someone else's money.

And yet sometimes those who have been injured by malpractice do fail to prevail, and even when they do those with similar injuries due to similar malpractice may receive wildly different compensation.

It's a horrible system, one that often fails to compensate those who deserve compensation even while lavishing $millions on those who were not injured by malractice but just took a calculated risk and lost. It's a casino in which appeals to emotion trump appeals to reason.
And all the while, legal costs (including but not limited to attorney's compensation) consume much of the funds.

Tort law as applied to medical malpractice is horribly inefficient in deliverng awards to the injured, and horribly capricious in who is awarded damages. And nowhere is it more so than when it comes to non-economic damages, in which emotional appeals are King.

And what of the Journal-Sentinel? At best this is "advocacy journalism," journalism that intentionally argues only one side of an issue (as though another side did not exist). At a minimum, it should be prominently labeled as opinion, so readers understand that there may be another side but they'll have to go elsewhere to find it.

traditionalguy said...

Tort law is the worst system, except for all of the rest that don't work at all except in your imagination.

Peter points out that no system exists to hand out just compensation perfectly...so do we just leave the injured and dead in their situation.

How about the Veterans Administration System. Will that be perfect enough? Dead and wounded soldiers are like damaged equiptment that no longer works. You put as little into it as you can and then junk it. That is the VA's real job, or haven't you noticed as you imagine a noble system.

Well, we civilians demand better treatment than that for ourselves. And we have a right to trial by jury until that is stolen away by Damages Caps after a long PR storm from crony capitalists declaring a good system to be a scandal.

Why is that ever turned into liberal v. conservative issue? How easy to fool are you? It's really the brain washed v. the realists issue. True conservatives are the realists who conserve their right to Trial by Jury.

michaelend said...

The articles showed how few people in Wisconsin are compensated for injuries caused by doctor errors. An article published in April 2011 in the medical journal Health Affairs showed that there were 1,503,323 people who died or were injured in 2008 as a result of medical errors. That translates, on a population basis, to more than 28,500 per year in Wisconsin. For each of the last two years, there were only 41 people in Wisconsin who were compensated for injuries or death caused by doctor error. Something is wrong with the system if over 28,500 people are injured and only 41 people actually compensated. What's more, over the last four years, Injured Patients and Families Compensation Fund, the fund with more than $1 billion in it, has paid, on average, just four people per year. With only 41 total payments and only four payments of more than $1 million, it is obvious that medical malpractice cases are not cases that most lawyers are looking for.
By the way, attorney fees in Wisconsin medical malpractice cases are regulated by state statute. No attorney may charge more than a one-third fee, absent an appeal or second trial taking place.

Unknown said...

My grandmother had a pretty serious surgery coming up in Las Cruces. I'm worried that something could go wrong and make things worse. That's why I need medical malpractice lawyer. Just in case.