Friday, January 20, 2006
Doyle Lifts the Cap !
Oops, wrong one. The legislature failed to override his veto on caps for pain and suffering in medical malpractice cases. New caps were required because the Supreme Court struck down the old ones in Ferdon v. Wisconsin Patient Compensation Fund. What is offputting about all this is the bickering about what cap level is "just right" to satisfy the Wisconsin Supreme Court. Its a bit of legalistic inside baseball, but Ferdon was an extraordinary decison, far more starting than the "lead paint" case. Normally, courts defer to legislative judgments on what makes good policy unless the legislation touches on a "suspect" category like race or one of a relatively few fundamental rights. Otherwise, they apply an analysis called "rational basis scrutiny" which traditionally means the legislature can do what it wants unless its irrational. In Ferdon, the Court said it was following the normal rules, but, in fact, it aggressively second guessed the legislature's judgment. It seemed to think that there needed to be some relatively precise relationship between the cap and the pain and suffering likely to be involved in med mal cases while the legislature may have based the cap on the notion that compensating people in dollars for pain and suffering is inherently subjective and susceptible to emptional reactions such that the jury's ability to award them is best limited. My fear is that Ferdon will become a milestone in judicial activism in Wisconsin.