This opinion piece authored by Atty. Ann Jacobs was featured in the Milwaukee Journal on January 3, 2015.
When most of us think of government, bureaucracy is usually one of the first words that comes to mind. Any government agency is rife with stories of bureaucrats wasting taxpayers’ money. Except for one.
News that the Wisconsin Injured Patients and Families Compensation Fund has projected assets of more than $1 billion and a projected $750 million surplus should be reason to celebrate. But for the people who desperately need help from the fund, it’s just another day in bureaucratic no man’s land.
Since 1975, Wisconsin doctors and some health care providers have been required to carry a minimum level of malpractice insurance and were assessed an annual fund fee for unlimited coverage. The fund is intended as a backup to pay any claims over $1 million, providing the ultimate rainy day protection for both patients and medical providers.
By any measure, the fund is in superb financial shape. Even more so in an environment of multibillion-dollar projected budget deficits and a state still struggling with the economic recovery. By comparison, the fund has more assets than some small countries.
While the growth of the fund has been phenomenal, it is still a political Trojan horse protecting us from a problem that does not exist. The Wisconsin medical community is already well-protected from malpractice lawsuit by a series of state laws and caps on damages that make it almost impossible to bring a claim. Wisconsin medical malpractice cases are down by more than half as compared to 10 years ago, and still the fund continues to grow.
According to a recent Milwaukee Journal Sentinel series on the problems with Wisconsin’s malpractice law,the defense wins 90% of the few cases that ever get to court. There is so much money in the fund, directors voted to cut its annual fees to participants by 34% next year.
In short, the state has created a massive financial safety net for patients injured by medical malpractice that rarely pays out anything because the law makes it almost impossible to get to court. And for the cases that do get to court the plaintiffs rarely win. The money piles up and the patient waits for help. And waits. And waits.
Consider Ascaris Mayo as the classic example of what’s wrong with the system.
Mayo is the Milwaukee mother who lost all four limbs in 2011 when doctors allegedly missed a septic blood infection. Represented by attorney Dan Rottier, Mayo prevailed this summer when the trial court upheld the jury’s $25 million dollar verdict. “This is not outrageous,” wrote Judge Jeffrey Conen, “and no one could seriously argue that it is not in proportion to Mrs. Mayo’s injuries.
We could not agree more.
Legislative leadership can send a message this holiday season that cuts across political lines if the governor directs the fund managers to not appeal and instead to pay the Mayo verdict. Clearly it’s not an issue of money but an issue of a system that fights every malpractice claim regardless of the facts.
There is an argument for another day on whether Wisconsin’s malpractice law is fair, but not today. This is the time for fresh starts from an administration that claims to have a mandate from the people to do the right thing.
Doing the right thing would be helping Ascaris Mayo in her fight for justice. As a society, we can tap the massive reserves in the fund that can only be used to settle malpractice claims. It is also the rare chance for the system to put people ahead of the never-ending game of political gotcha in Madison.
Ann S. Jacobs is president of the Wisconsin Association for Justice.