Wisconsin has been in the news quite a bit lately with stories related to healthcare and particularly malpractice. In many ways the state’s situation presents a microcosm of a number of the questions and contradictions at issue in states all across the U.S. From debates about informed consent to available representation and fair compensation, incentives, motives and more are at issue in the many conversations being had and cases being decided across the state. One thing is for sure—there isn’t much agreement.
For instance, malpractice filings are down dramatically in Wisconsin. In fact, since 1999 the number of filings has dropped more than 50%. Further, following but far exceeding a national trend, the number of paid claims in Wisconsin dropped 66% between 2003 and 2013, according to the National Practitioner Data Bank (NPDB). These drops have followed in the wake of such reforms as the implementation of caps on non-economic damages, the creation of a state administered Injured Patients and Families Compensation Fund, and most recently passage of a law that gives doctors more discretion in the area of informed consent.
And, for the most part doctors, insurers, and the state are happy with the situation. Malpractice insurance markets are stable, physicians are less fearful of being sued than in the past and, should a really serious case arise the compensation fund is well stocked to provide for the effected party.
However, critics point to a seemingly dramatic rise in the number of adverse actions reported during that same time period and cry foul. The numbers they say, far from indicating better health care and fewer mistakes, only indicate less accountability and less justice for patients even as the number of mistakes made by doctors continues to grow. And indeed, at first this may seem like a fair conclusion, maybe even the only reasonable conclusion. After all, the number of adverse action reports filed with the NPDB grew from 38 in 2003 to 105 in 2013, a whopping 276% increase!
But this hardly tells the whole story. To begin with there is no simple one to one correlation between reported adverse events and instances of malpractice. Adverse events, while never a good thing, can include disciplinary measures, or loss of privileges for any reason. Further, let’s consider the kinds of numbers we’re talking about here. While we never want to trivialize malpractice or adverse events generally, the reality is that whether it’s 38 or 105 in a year, the number is fairly small. More than that, this isn’t the kind of figure that necessarily follows a long-term trend. The numbers can go up and down from year to year. For instance, from 2003 to 2008, the number only went up about 13% from 38-48. From 2010 to 2011 however it went up 192%, only to drop 16% over the next two years from 2011-2013. The point is that while yes, the number of adverse events reported is up from 10 years ago, it’s not been a simple bell curve; the number fluctuates year to year, has been dropping for the last two years, and has never been tremendously high when one considers the 15,000 or so physicians in the state seeing patients every day.
States like Pennsylvania (40%) and Virginia (24%) have seen dramatic reductions in the number of malpractice filings over the last decade as well. As is the case with Wisconsin, critics, and particularly lawyers, see this as just more evidence of a system that is unfair to patients and victims. But according to most of those in and around the healthcare community these trends are the intended effect of important and just healthcare reform.
For instance, in Pennsylvania the decline in malpractice filings followed directly on the heals of implementation of reforms that require pre-certification by a healthcare professional before filing a lawsuit, as well as prevent venue shopping in the state. Well, that’s what those changes were designed to do. Pre-certification is meant to cut back on frivolous and meritless lawsuits by letting a healthcare professional evaluate the case’s validity prior to it being entered in court. Likewise, stopping venue shopping was meant to reduce filings by preventing weak cases from being granted a hearing in notoriously litigious counties and other venues. Far from evidence that something is wrong, the declining numbers of malpractice cases filed is evidence that reform efforts are working in the eyes of many healthcare professionals, legislators, and insurers.
But in addition to leading the pack in claim reductions, Wisconsin is also one of many states facing an uphill battle to keep some of their reform measures in place. Like so many other states one of the ways Wisconsin achieved its current stability in the malpractice insurance market was through the implementation of caps on non-economic damages. So far, unlike in states such as Missouri and Florida, these caps have stood in Wisconsin. But just last month a jury awarded a plaintiff a $25M settlement in a case involving what the jury determined was a failure to appropriately disclose alternative treatments.
As Paul Scoptur, a Milwaukee plaintiffs’ attorney said, “This is a great case to challenge the cap — there is a significant physical loss and a substantial damage award… You don’t want to really challenge the caps when there is a $100,000 difference.” And as the plaintiff’s attorney said after the case, “”One way or the other, this will likely get to the (Wisconsin) Supreme Court.” It’s hard to doubt that he is right, and it will be interesting to see if the Wisconsin court bucks the national trend and lets the caps stand. Of course every state Constitution is different (as is every court) so it could go either way, but if there is such a thing as low-hanging fruit in the realm of repealing tort reform, damage caps seem to fit the bill right now.
And if arguments about the number of malpractice claims and damage caps aren’t enough, even Wisconsin’s patient compensation fund has garnered close scrutiny and more than a little debate. One would think that a patient compensation fund would be one reform measure that everyone could get behind. Doctors have to pay into it, but it provides them stability and security, and at the same time it creates a secure pool of money that can be used to compensate victims of truly serious malpractice. However, some feel that Wisconsin’s fund has just worked too well. The fund, at over $1B dollars now, more than doubled during that same period from 1999 to 2013 when the numbers of malpractice filings and payouts were decreasing.
Some seem to see evidence of foul play or at least a system rigged against victims of malpractice in this state of affairs. But it’s pretty hard to imagine how things could be otherwise. If there are fewer claims made, and fewer payouts then wouldn’t it stand to reason that the fund, out of which these funds come would grow? Perhaps it’s time to reduce doctors’ payments if the fund is adequately stocked for the foreseeable future, but there are two good answers to that. One, it’s the doctors’ money, so surely if someone wants to complain that they are being charged more than necessary to stock an already bloated fund it should be the doctors and not trial lawyers. Two, the question of how much is enough is an actuarial question, and again not one that there is really any way for lawyers, or pundits to answer without having access to all the numbers and risk calculation formulas. If the doctors are happy with what they are paying, and the fund is keeping malpractice premiums stable and doctors’ risk under control then it would seem to be doing what it was designed to do.
Wisconsin has led in the area of creative reform efforts, and so far it seems that that their efforts have been successful. While we always want to see the number of adverse actions continue to decline and the fate of damage caps remains somewhat in limbo, Wisconsin physicians are still able to enjoy a stable market and confidence that the legal system has checks and balances that generally promote fairness and justice.
This post was written by Justin Donathan.
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