Loss of a limb, brain injury, permanent institutionalization – the harms from a medical malpractice case can be catastrophic. They are the kind of harms that nobody would trade money for, no matter how much money was offered. Yet Wisconsin law currently caps medical malpractice payments for pain and suffering for injuries like these to $750,000. Consider this, a limit on the amounts payable for pain and suffering does not affect those with minor injuries. A cap only affects those who have suffered the worst possible injuries at the hand of a negligent healthcare provider. To those whose lives are often shattered by what happened to them, no rational person would trade places with them regardless of the money involved.
Other caps are even more shocking. The death of a child in a car accident? The cap is $500,000. Imagine telling a parent that their beloved child was worth so little. The death of a spouse or parent? $350,000, regardless of how long the marriage had lasted, or the strength of the relationship.
In fact, studies show that those most impacted by non-economic damage caps are the most vulnerable among us. A 2014 RAND institute study found that child victims of medical malpractice are those most impacted by inadequate damage awards imposed by caps. Women follow closely behind. Each of these two groups face unique challenges when presenting damages to juries and each are far more reliant on non-economic damages to achieve just results at trial. Because economic damages including lost-income are not affected, low-income victims often receive lesser awards, despite facing similar costs and experiencing like injuries than their higher income counterparts.
Worse yet, juries aren’t even told about the limits on the pain and suffering award. By operation of law, they are kept in the dark, thinking that they are awarding a fair sum, only to (perhaps) learn at a later date that a court has reduced the sum to an arbitrary cap. Although the right to a jury trial is embedded within our constitution, caps chip away at that right when the jury is deprived of the knowledge of what its verdict will mean for the litigants.
And these caps are arbitrary. They were originally sold to the citizens of Wisconsin under the pretense of limiting the cost of healthcare, encouraging doctors to relocate, or competing with nearby states. But these have turned out to be false promises. Caps on damages haven’t been shown to affect the cost of healthcare – the only slowdowns in healthcare costs over the past 30 years corresponded with weak economies, not the passage of caps. States without caps have no fewer doctors per capita, even examining rural counties. Indeed, caps have done nothing to improve access to doctors in rural areas, something Wisconsin struggles with today.
Another shocking statistic is the amount of money currently sitting in the state’s “Injured Patients and Families Compensation Fund.” A fund created to insure doctors, hospitals and healthcare providers for any amount of a verdict or settlement over $1,000,000. That fund has assets of nearly $1.2 billion dollars – money that is not helping any injured patients or their families. It is just sitting there investing and reinvesting money collected to compensate injured victims. This bloated account is in part due to the fact that even when horrific injuries are suffered, the payouts are artificially limited. Additionally, even when the injuries suffered by a malpractice victim are clearly valued at more than the cap, the Fund vigorously, indeed aggressively, fights to maintain the cap to the detriment of the injured person.
Caps do nothing more than protect those who have caused the greatest harms. They do so by punishing the most injured, limiting their damages in a way that shocks us all. There are those who say, “well, how do we know what a life is worth?” to which the reply can be given, surely the loss of a child is worth far more than $500,000, surely the loss of a spouse of 50 years is worth more than $350,000, surely the loss of all of one’s limbs is worth more than $750,000.
Justice shouldn’t come with a politically expedient price tag. But right now it does in Wisconsin.