Republican Lawmakers Go on the Offensive Against “Defensive Medicine”

Over the last several years, Wisconsin’s legal climate has become more and more challenging to navigate for medical professionals. 

Former governor Jim Doyle, along with a Democratic legislature, enacted a number of laws giving advantages and incentives to trial lawyers to sue doctors and nurses. Decisions of the State Supreme Court had similar consequences. On top of that, Doyle illegally raided $200 million from the Patients Compensation Fund, a fund that pays out claims to individuals and families who have been victims of medical malpractice.

These moves shattered what had been known as one of the most stable tort climates in the country. Before the sweeping changes, Wisconsin was known to have the best health care in America, but the increased exposure to lawsuit liability added a massive element of uncertainty for those practicing medicine in our state. It has also contributed to the rising cost of health care of late due to the exorbitant malpractice insurance premiums required of doctors in fear that they may become embroiled in a lawsuit.

When such a threat hangs over the head of a doctor or nurse, they naturally learn to practice medicine in a “defensive” manner in order to avoid lawsuits.

According to Medicine.net, “In defensive medicine, responses are undertaken primarily to avoid liability rather than to benefit the patient.”  Obviously, this is not how we want people in need of care to be treated, but that is what we have created in Wisconsin by tilting the playing field so far in favor of the plaintiff’s bar.

Republicans are seeking to restore a sense of confidence among our state’s medical professionals such that, if their job is done right, they will not be needlessly sued.  One step we are taking is Assembly Bill 147, the so-called “I’m Sorry Bill.” 

AB 147 would allow health care professionals to express emotions such as sorrow and empathy without fear of their compassion being used against them in a lawsuit. Under current law, this is not the case. I believe that such a heartfelt expression should not put the doctor or facility at risk of a civil malpractice or negligence lawsuit. To express sympathy to someone who has been through a terrible ordeal is only human, and knowing they will not be sued for doing so will have a positive effect upon how they practice medicine.

Further, a new law was enacted early this year limiting noneconomic damages for medical malpractice and wrongful death awards. 2011 Wisconsin Act 2, one of the first bills passed by the legislature this year, reversed recent changes to state law that had made Wisconsin one of the most difficult states for medical professionals by leaving them vulnerable to damaging, and often unwarranted, lawsuits. 

Act 2 also adopted what is known as the Daubert standard for expert testimony in a court proceeding, a standard that is already followed by a majority of other states and the federal courts. Daubert requires that an expert witness’ testimony be based on sufficient facts or data and is the product of reliable principles and methods.

In an effort to further stabilize Wisconsin’s climate for practicing medicine, the legislature and Governor Walker implemented a plan to pay back the $200 million illegally removed from the Patient’s Compensation Fund by Governor Doyle.

As with any human endeavor, medical professionals will inevitably make mistakes from time to time, and there should be laws to compensate the victims. But there needs to be a fair balance, and when the scale tips to the point where doctors and nurses are practicing defensive medicine to avoid a lawsuit, something needs to be changed.  I am hopeful that these reforms will have a positive impact on the quality of health care in Wisconsin, as well as the cost.

To contact me with any questions or comments or to sign up for my regular e-updates, please send an e-mail to Rep.Knodl@legis.wi.gov or call me at (608) 266-3796.