Medical Malpractice Cap
Revisited
For the second time
during the 2005-06 legislative session, members of the Wisconsin
Legislature seem poised to pass and send to the Governor a bill that
would re-establish a cap on the award of noneconomic damages in
medical malpractice cases.
Legislative action came
about as a result of the Wisconsin Supreme Court’s decision in the Ferdon case issued last July, which struck down the cap
enacted by the 1995 Wisconsin Legislature. Following that decision,
the Assembly Speaker created a task force of legislators and public
members to solicit information, review data, and assess the impact
of caps in Wisconsin and around the country.
The task force submitted
its findings and recommendations, and the Legislature proceeded to
pass a bill, AB-766, in response to those findings and recommendations. Governor Doyle
vetoed AB-766, citing his belief that the bill did not adequately
respond to the Supreme Court’s decision that the 1995 adopted caps
failed the Court’s constitutional test.
On Thursday the
Wisconsin Assembly, on a bi-partisan vote of 74-22,
2 paired, passed AB-1073,
which establishes a cap of $750,000 on the award of noneconomic
damages in medical malpractice cases. AB-1073 also includes an
expanded “purpose” clause to memorialize the Legislature’s “rational
basis” for enacting the cap. The bill is expected to be concurred in
by the Senate next week.
The Governor has not
publicly stated what action he intends to take when the bill hits
his desk. Conventional wisdom has been, however that the bill needs
to be “clean” to have any chance of gaining the Governor’s
signature. That means that the bill could not contain other items
such as limits on plaintiff lawyer attorney fees. The Assembly did,
however, pass separate legislation, AB-1074, to limit plaintiff lawyer fees in medical malpractice cases, as
well as AB-1072, relating to introduction and potential subtraction of collateral
source payments in medical malpractice cases.
More Litigation Reform -
Obesity
Inspired by lawsuits
commenced in other parts of the country and open discussion among
plaintiff lawyers, the Wisconsin Legislature, for the second session
in a row, has passed (24-9 in the Senate and 63-33, 2 paired in the
Assembly) legislation, SB-161, to provide certain immunities for claims
brought to recover damages for illnesses or injuries that were
brought on or caused by weight gain or obesity - often referred to
as the “McDonald’s cases.”
The Wisconsin
Legislature passed similar legislation last session, but the measure
was vetoed by Governor Doyle. A spokesperson for the Administration
has recently stated that the Governor will likely veto SB-161 as
well.
And More - Punitive
Damages
The first of the
three “infamous” Wisconsin Supreme Court civil justice rulings of
last year came one year ago, March 2005, and related to the
standards for the award of punitive damages.
The Supreme Court, in
the high-profile Mitsubishi case, interpreted another 1995
adopted statute in a manner to allow the award of punitive damages
based on standards that many proponents of the earlier legislation
believe are much weaker than that intended by the Wisconsin
Legislature. There were no constitutional issues, only the Court’s
citing, after 10 years, of what it believed the Legislature meant by
the language it had adopted.
Each house has,
respectively, passed bills (AB-843 & SB-447)
that are identical in all but one provision, to once again heighten
the standard for the award of punitive damages. Senate Bill 447 is
on the Assembly calendar of Tuesday, March 7. On Wednesday, the
Senate Judiciary Committee recommended concurrence in AB-843, but
the Senate calendar for next week has not as yet been established.
There has been no statement from the Governor’s office, but
speculation again points to a veto.
Taxpayer Protection
Act
The proposed
constitutional amendment to control the growth of government
spending had its first public hearing in Pewaukee on Wednesday. The
proposal is embodied in companion Joint Resolutions, SJR-63 and AJR-77.
The proposal has very
vocal and staunch proponents and opponents, but also others who are
carefully examining the various provisions to determine potential
impact on legitimate economic development and general development
activities. Conventional wisdom is that some version will pass as
“first consideration” this year. (The Constitution cannot be amended
in Wisconsin unless the identical resolution passes two - “first and
second consideration” - consecutive sessions and is approved by the
people via referendum.)
The proposal is likely
to undergo some change before going to the full Legislature, which
is likely to occur during an extraordinary session later this month
and after most, if not all, the regular floor action is
completed.
Recent Legislative
Activity
The following bills have
passed both Houses and are available for action by the
Governor:
Senate
-
SB-164: Notice regarding unauthorized acquisition of personal
information.
-
SB-448: Contractor's notices, claims against certain contractors and
suppliers of dwellings.
-
SB-578: Confidentiality of health care review records.
Assembly
-
AB-208: Rural enterprise development zones.
-
AB-290: Prohibiting the required implanting of a microchip in an
individual
-
AB-298:
Tourism promotion and development under the room tax.
-
AB-387:
Eligibility of a person enrolled in a program that confers a
master’s degree in nursing for a loan under the Nursing Student
Loan Program.
-
AB-597: Remedies in certain actions concerning building code or zoning
ordinance violations.
-
AB-620: Notice to persons affected by zoning actions and comprehensive
plans that change the allowable use of their property.
-
AB-926: Group health plans offered by co-ops.
-
AB-981.
Funding changes for Medical Assistance. Passed, 94-1.
-
AB-986.
Offenses against financial institutions. Passed, voice
vote.
-
AJR-68: Prohibiting partial vetoes of parts of bill sections
(first consideration) and SJR-33 (first consideration) have also passed both Houses. (No
action by the Governor is required.)
The following passed
have passed one (the first) House:
Senate
-
SB-103: Income and franchise tax credit for research and research
facilities. Passed 21-11.
-
SB-136: Income and franchise tax credits for businesses located in an
airport development zone. Passed 18-15.
-
SB-183: Grants to certain organizations that provide support to a
manufacturing extension center. Passed 33-0.
-
SB-420: Definition of a group health benefit plan.
-
SB-425:
Limitations on the authority of the Department of Justice and the
Attorney General regarding public nuisance actions. Passed the
Senate 19-14.
-
SB-444: Duties of a real property lister.
-
SB-459:
Relates to programs that promote energy efficiency and energy that
is derived from renewable resources. It is based generally upon
recommendations contained in the Final Report of the Governor’s
Task Force on Energy Efficiency and Renewables, October 2004.
Passed the Senate 32-1; See the Legislative
Council Amendment Memo.
-
SB-465: Postdated checks and checks given for past consideration. Passed 19-4.
-
SB-546: Identification and cleanup of properties that are environmentally
contaminated. Passed 33-0.
-
SB-571: Offenses against financial institutions, community currency
exchanges, and providing penalties. Laid on the table Feb.
28.
-
SB-602: Creating a development zone credit for the license fees
paid by certain insurers.
-
SB-617: Rules relating to defined network plans and preferred provider
plans.
Assembly
-
AB-713: Subjecting a county development plan to town board
approval.
-
AB-890: Ddmitting prior testimony of a felony victim at a
probation, parole, or extended supervision revocation
hearing.
-
AB-980: Continuing education and certification requirements for
building contractors and certification of building
inspectors.
-
AB-981.
Funding changes for Medical Assistance. Passed, 94-1.
-
AB-986.
Offenses against financial institutions. Passed, voice
vote.
-
AB-1057.
Changes affecting Milwaukee Parental Choice Program and SAGE
Program. Am .1 tabled, 60-37. Am. 2 tabled, 59-38. Am. 3 tabled,
60-37. Am. 4, tabled, 60-37.
-
Not Referred to
Education Committee, 36-61. Am. 5 tabled, 60-37. Am. 6
tabled, 64-32. Am. 7 tabled, 65-31. Passed, 62-37.
-
AB-1071.
Time limit for a person under the age of 18 to bring an action
against a health care provider. Passed, 59-37.
-
AB-1072.
Awards to persons suffering damages as the result of medical
malpractice; evidence of compensation. Passed, 59-36.
-
AB-1074.
Recovery of attorney fees in medical malpractice cases. Passed,
55-41.
-
AJR-68: Prohibiting partial vetoes of parts of bill sections
(first consideration).
-
and SJR-33
(first consideration) have also passed both Houses.
Assembly Sets Calendar
for Tuesday, March 7
The Assembly
calendar for next Tuesday includes Senate Bills 103, 459 and 602
(all referenced above) as well as the following:
AB-958:
Civil liability exemption for assistance provided as the result of
an emergency.
AB-973:
Expands purposes for which a town may create a tax incremental
financing district.
AB-1008:
Authorizes City of Monroe to make changes in
TIF districts.
AB-1015:
Authorizes city or village to make changes in TIF
districts.
AB-1024:
Damages to rental vehicles.
AB-1077:
Time period during which impact fees must be used; refunding of
impact fees.
SB-450:
Construction liens.
SB-501:
Damages for frivolous claims.
Ethanol Prices Heading
Through the Roof
Ethanol is already
more expensive than conventional gasoline, but a recent report by a
federal agency says prices will go higher. Because of bans on the
fuel additive MTBE, and other market forces on the East Coast and in
Texas, the ethanol shortage is expected to drive prices even higher
in the months ahead.
A February
22, 2006 report from the Energy Information Administration (EIA)
at the federal Department of Energy found that the worsening ethanol
shortage will result in “supply dislocations and subsequent price
volatility.”
The higher ethanol
prices interject a new angle in the debate over AB-15,
legislation that would mandate ethanol across Wisconsin. In a Milwaukee
Journal Sentinel guest
editorial, WMC’s Scott Manley discusses the
issue.
JCRAR Acts to Suspend
Portions of New Ins 9 Administrative Rules
On Wednesday, March1,
the Joint Committee for Review of Administrative Rules (JCRAR) held
a public hearing and took action to suspend portions of Ins 9 relating to
the regulation of defined network and preferred provider insurance
plans. The rule suspensions pertain to new rules recently adopted by
OCI, which went into effect on March 1.
Portions of the rule
came under fire by some members of the insurance industry, the
hospital association and companies dealing with limited scope plans.
Legislative concerns were also raised as to whether OCI had adequate
statutory authority to impose some of the new regulations by
administrative rule. The JCRAR voted to suspend the following
provisions:
-
Suspend Ins 9.01 (10m)
and related references to take limited scope dental and vision
plans out of the rule.
-
Suspend Ins 9.32 (2)
(c) and related references to eliminate the rule requirement that
insurance contracts with participating providers (i.e. hospitals)
include a provision that requires the provider to inform patients
whether certain services will be performed by a participating or
nonparticipating provider.
-
Suspend Ins 9.25 (4)
to delete a provision that would give the Commissioner of
Insurance authority to regulate a preferred provider plan (PPP)
like an HMO if the Commissioner determined the PPP was routinely
using preauthorization for denying access to services of
nonparticipating providers.
-
Suspend portions of
Ins 9.32 (2) (a) relating to access standards. The portion
suspended pertains to OCI regulation of a PPP with respect to the
hours of operation, waiting times for appointments, and after hour
care of the plan’s participating providers.
-
Suspend Ins 9.32 (2)
(f) relating to the requirement that PPP’s pay for emergency
services performed by a nonparticipating provider as though the
services were performed by a participating provider.
As a result of
Wednesday’s action, the JCRAR now submits a bill, within 30 days, to
codify its suspensions. Since it is after February 1st of
an even-numbered year, the bill does not come up until it is
re-introduced on the first day of the next session of the
Legislature, in January of 2007. In the interim, the suspended
portions of the rule are not in effect and may not be enforced by
OCI.
Separate
Bills Regarding Ins 9 (AB-1052 & SB-617)
In separate but
related action, companion bills (AB-1052 and SB-617)
dealing with the regulation of preferred provider plans, were
respectively scheduled for a floor vote in the first house on
Thursday, March 2. SB-617 was passed as amended (SA 1) on a partisan
19-13 vote and messaged to the Assembly.
AB-1052 was not taken up
by the Assembly on March 2, and both bills are on the calendar to be
taken up on March 7. These bills have substantial effect on OCI
rulemaking under Ins 9, and include provisions that authorize and
limit OCI’s rulemaking authority. However, they are not the
same bills that must be introduced by JCRAR under the suspension
action reported above.
The Governor has not
stated his position publicly, but a veto is expected should either
companion bill pass both houses. Under that scenario, the suspension
actions taken by JCRAR remain unaffected and those ongoing Ins 9
issues will be taken up again when the Legislature convenes in
January of 2007.
Legislators Create
Healthcare Committee
A five-member
committee has been charged with studying the rising costs of health
care in Wisconsin. The Senate Committee
on Health Care Reform will focus on long-term care for Wisconsin’s aging population as
well as the rising costs of health care. Hearings will be held
around the state, with the first to be in Milwaukee. A final report will be
released no later than May 31, 2006. Sens. Roessler and Darling will
co-chair the committee.
Nuclear Bill Introduced
- Committee Hearing
Legislation
introduced last month would allow construction of new nuclear power
plants in Wisconsin. A public hearing on the legislation (AB-1053)
ending Wisconsin’s moratorium on the construction and expansion of
nuclear power plants was held on March 1st.
Immigrant ID Legislation
Advances
Wisconsin State
Senate approved Assembly
Bill 69 that would make Wisconsin the 42nd state to adopt a
requirement that an individual show proof of legal presence in the
United States in order to obtain a driver’s license or State ID
Card. AB-69 passed the Senate in a bipartisan vote of
26-7.
Wisconsin is currently one of
only nine states without a requirement that a person must be
lawfully in our country in order to get a driver’s license or State
ID Card. If the bill becomes law, applicants would have to show
proof of residence and a date when their legal alien status expires.
The date would be printed on the person's driver's
license.
Study: Wisconsin Economy will Neither
Boom nor Bust
Wisconsin’s economy continues to
improve according to a recently
released study prepared by the Wisconsin Department of Revenue.
Personal income growth will be averaging three percent per year over
the next five years. Over the same time period, Wisconsin per capita incomes are
expected to remain above 98 percent of the U.S. average.
Wisconsin’s employment growth is
expected to average 1.1 percent on an annual basis for the next
three years. Wisconsin’s employment is expected to grow at a 0.6
percent annual rate in the first quarter of 2006, and gradually
accelerate to 1.1 percent by the fourth quarter. The unemployment
rate in Wisconsin is expected to slightly decrease over the next
five years, while the national unemployment rate is expected to
rise.
DNR Provides Brownfield
Grants
Gov. Jim Doyle recently announced grants totaling
$1.7 million to start the clean-up process of contaminated,
abandoned, or underused properties in various
communities.
The Brownfields Site
Assessment Grants (SAG) provided through the Department of Natural
Resources, give local governments seed money for demolition,
environmental assessments, and removal of abandoned tanks and
containers.
For more
information on legislation of interest to CTCW members, go to the CTCW
Tracking Report. |
