The national balancing act to limit who could sue doctors and how much they can collect is playing out in Wisconsin. In a starkly emotional briefing in Madison organized by Senator Nikiya Harris Dodd (D-Milwaukee), local Madison father Drew Martin held up a plastic facsimile of his deceased baby daughter’s face.

Daughter Grace was not breathing when she was born last year. Despite a normal pregnancy, the baby was judged to be severely brain damaged and unable to walk, speak, or socialize. Ultimately Martin and his wife decided to remove the baby’s breathing tube. Later, the parents learned that if the baby had lived, incurring millions in special needs care, some of those costs might be recovered in malpractice litigation. Because of the Wisconsin cap on noneconomic damages, they were unable to find an attorney willing to take their case. Martin told reporters that he was unsure whether medical error was involved in his daughter’s death and would probably never know without assistance from a skilled legal team.

The irony of the Wisconsin law was not lost on Martin. “I learned it is better for doctors and nurses if the patient dies,” Martin told reporters.

In Wisconsin, noneconomic damages, such as loss of companionship, cannot exceed $500,000 in cases such as the death of a child. Sen. Harris Dodd would like to change this, allowing parents of adult children up to the age of 27 to sue for damages.

Likely because of its limits on awards, Wisconsin has paid out less in malpractice claims than most states. The Journal Sentinel noted that the state-managed insurance fund had a surplus estimated at $728 million.

Observers give changes to the law such as those proposed by Sen. Dodd, which would roll back restrictions on awards involving the death of adult children, little chance of passing the state legislature. Bills somewhat broader in scope resembling this one have been rejected in prior years. Opponents argue that the bill would be an invitation to frivolous suits or would lead to increased malpractice premiums. 

Ann Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.