Recent Events in the News

Wisconsin Court overturns ruling on malpractice damages

Posted on Jul 14, 2006

Supreme Court overturns ruling on malpractice damages By Ryan J. Foley Associated Press MADISON, Wis. - Overturning its own decision after just two years, the state Supreme Court on Friday reinstated a $1.2 million damage award to the family of a Kenosha woman who suffered a heart attack and later died after a doctor misdiagnosed her. In awarding the damages to Helen Bartholomew's family, the court reversed its 2004 ruling that families of malpractice victims who die could collect damages only for wrongful death and not for any prior pain and suffering. Trial lawyers said Friday the decision will mean fairer compensation in cases in which medical malpractice victims subsequently die and will encourage lawyers to take on more of those cases. But Assembly Majority Leader Mike Huebsch, R-West Salem, accused the court of "legislating from the bench" and warned the decision would create an unpredictable malpractice climate for Wisconsin doctors and hospitals. Victims should be eligible for both wrongful death damages and pain and suffering damages because they are separate causes of action, Chief Justice Shirley Abrahamson wrote in the majority opinion for four justices. The damages are capped under Wisconsin law - to $350,000 for wrongful death for adults, $500,000 for wrongful death for children and $750,000 for pain and suffering. The earlier decision was flawed because it failed to consider a long-held distinction in Wisconsin law between predeath damages and wrongful death actions, Abrahamson wrote. "The unremarkable conclusion of this opinion is that the legislature allowed for the recovery of greater but still limited damages when medical malpractice results in a victim's death than when medical malpractice does not result in the victim's death," Abrahamson wrote. In a stinging dissent, three justices said the court should uphold the 2004 ruling because the decision correctly reflected the Legislature's intent to limit the recovery of malpractice damages. The majority opinion "shows a lack of respect for the institutional integrity of our opinions and ... an equal lack of respect for the policy choices made by the legislature, as it substitutes its own policy choice for Wisconsin," Justice Patience Roggensack wrote for the three. Timothy Aiken, a leading Wisconsin malpractice lawyer who represented Bartholomew, called Friday "a bright day for people who believe consumers and patients ought to have access to the courts." He estimated he turned down 100 cases in which the victims died during the past two years because the potential award of $350,000 was not worth the risk. "We are supposed to have open courts and we're not supposed to close the courthouse doors on artificial limits," he said. Bartholomew sought care at a walk-in clinic in 1998 for pain in her chest and left shoulder and arm. She was misdiagnosed and suffered a heart attack the next day. She was forced to stay in a nursing home until she died in 2003, according to court records. Bartholomew's husband, Robert, sued the doctor responsible and the Wisconsin Patients Compensation Fund, which pays damages over $1 million. A jury awarded a total of $1.2 million for her pain and suffering and his loss of companionship before and after her death. A judge cut the award to $350,000 after the court's 2004 decision. Reversing course on Friday, the court said Bartholomew should be awarded the additional $850,000 the Kenosha County jury initially recommended. The award included $500,000 for Helen Bartholomew's pre-death pain and suffering, $350,000 for her husband's loss of companionship and $350,000 for the wrongful death. Friday's ruling shows how the court's 2004 decision was "incredibly unfair," said J. Michael End, a Milwaukee lawyer who represented the family in that case. The court reduced to $300,000 a $3 million jury award for the parents of a 5-year-old girl who died after a doctor failed to diagnose her with diabetes. End praised the latest ruling but said it would impact "a very limited number of people." Aiken said he had three or four pending cases that may be affected. The state's compensation fund, which is funded by health care providers, is reviewing the ruling to determine the impact, said fund chief Theresa Wedekind. "We really don't know the impact at this time," she said.