Oops, they did it again

The Wisconsin Supreme Court has once again ruled in a way that removes previously understood limitations on the recovery of noneconomic damages in malpractice cases. Today, in a case called Bartholemew v. Wisconsin Patient's Compensation Fund, the Court overruled its decision in Maurin v. Hall which held that a medical malpractice claims including a claim for wrongful death were subject to the limitations on noneconomic damage in the wrongful death statute, i.e., $350,000.

As a result, plaintiffs were able to recover 1.2 million instead of $ 350,000 in a case where a doctor apparently missed signs of an impending heart attack and the plaintiff suffered serious debilitating injury before dying 5 years later. Given that the legislature, intended to cap noneconomic damages at $ 422,000 in malpractice cases (overturned by the Court last year by its bizarre decision in Ferdon v. Wisconsin Patient's Compensation Fund) and wrongful death damages at $ 350,000, this was a neat bit of work.

The opinion is long and the result a little compplicated. Three members of the Court today held that, when someone dies as a result of malpractice, all claims for "predeath" noneconomic damages are subject to the limitation on medical malpractice claims generally and that the claims for postdeath loss of society and companionship are subject to the general limitation on wrongful death damages. In other words, you can "stack" the caps. Justice Butler provided the fourth vote, holding that you can't exceed the overall limitation applicable in malpractice cases.

(Of cours, the Court struck down the limitations on noneconomic damages in malpractice awards in Ferndon so, for this case, there actually were no such limits. The legislature has enacted higher caps, but who knows if the Court will uphold those?)

The issue here turns on the construction of the language of the statutes and, while I have only skimmed through the 94 page opinion, I can't say that the way the three justices joining in the lead opinion and Justice Butler read them are obviously wrong.

On the other hand, the reading adopted by the Maurin decison is not obviously wrong either. What is striking about all of this is that Maurin is only two years old. What has changed since 2004? Have we learned more about noneconomic damages in malpractice cases? Has the Maurin decision proven to be unworkable?

No. Louis Butler replaced Diane Sykes. That's it.

Normally, courts give precedent a bit more deference than this; if only to avoid the appearance that they are completely results-oriented. To throw a two year old opinion under the bus in this way is, while not entirely unheard of, very unusual.