MED-MAL RULING HAS DOCTORS REELING
As any constitutional law student knows, rational basis review is the lowest of the low.
But it was high enough for the Wisconsin Supreme Court to wipe out as an equal protection violation a cap on some medical malpractice damages. And it was enough to leave the state’s medical establishment reeling.
The court also cut off federal appeals by deciding the case solely under the Wisconsin Constitution, effectively painting physicians and their legislative allies into a corner as they pondered a fix.
“We had just figured out how to deal with the legislative branch, and now the supreme court comes along,” complains Mark M. Grapentine, a lobbyist for the Wisconsin Medical Society, which filed an amicus brief along with the American Medical Association.
Moreover, the highly detailed and carefully crafted opinion also caught the attention of plaintiffs lawyers outside Wisconsin who are searching for arguments to fend off looming homegrown damage limits that doctors say will curb their malpractice insurance premiums.
“This is huge,” says medical malpractice plaintiffs lawyer Thomas A. Demetrio in Chicago, where a cap Illinois lawmakers passed this spring awaits Gov. Rod Blagojevich’s signature.
To be sure, med-mal damage caps have come and gone over the last 30 years. They have divided state courts, and Wisconsin’s is far from the first court to address them. But the Wisconsin decision comes amid a renewed round of demands for state and federal legislation to deflect the brunt of the tort system away from doctors, who say they can’t continue to practice without help.
It was the 1995 Wisconsin statute’s inability to survive rational basis scrutiny in Ferdon v. Wisconsin Patients Compensation Fund, No. 2003AP988 (July 14), that initially stunned organized medicine.
For a statute to endure a rational basis test, a court need only find the slightest thread linking the law to the problem it’s supposed to solve. Courts even can—and do—invent their own support for a law they want to uphold long after legislators have gone home.
So lawyers representing health care providers figured the $350,000 Wisconsin cap on noneconomic damages for pain and suffering should have been a lead-pipe cinch for the state court to uphold. What’s irrational, they wondered, about a maximum that purports to fairly compensate victims, reduce insurance rates, keep a supplemental state insurance pool solvent, lower overall patient costs and ensure quality care by keeping doctors in Wisconsin?
Everything, replied the supreme court, knocking down each premise one by one, using state and federal government statistics and studies for support. Legislatively enacted statutes in other states could be vulnerable because they rely on similar justifications.
“The decision certainly presents a challenge,” says Ruth Marie Heitz, general counsel for the state medical society. “We are concerned with the standard the court used. They gave the legislature less deference than they usually do when they apply a true rational basis review.”
Her colleague Grapentine views the decision more cynically: “Maybe it’s just semantics, but I think they took pains not to box the doctors in, but to get the result they wanted.”
The 4-3 ruling came in the case of Matthew Ferdon, now 8, of Abrams, about 20 miles north of Green Bay. The boy has a deformed and partially paralyzed right arm caused by an injury at birth. Jurors awarded Ferdon $403,000 for future medical expenses and another $700,000 for pain and suffering, twice the state limit.
For the complete story go to http://www.abanet.org/journal/ereport/jy29cap.html.