State Senator Mary Lazich (R-New Berlin) represents parts of four counties: Milwaukee, Waukesha, Racine, and Walworth. Her Senate District 28 includes New Berlin, Franklin, Greendale, Hales Corners, Muskego, Waterford, Big Bend, the town of Vernon and parts of Greenfield, East Troy, and Mukwonago. Senator Lazich has been in the Legislature for more than a decade. She considers herself a tireless crusader for lower taxes, reduced spending and smaller government.
Yesterday, the state Senate took an important step in making Wisconsin more attractive for businesses by passing a comprehensive tort reform bill, Special Session Senate Bill 1 (SS SB1), at the request of Governor Walker. The legislation will, among other things, help to protect all people and businesses against frivolous lawsuits, limit excessive jury awards, and ensure that expert witnesses are qualified to present their testimony.
One provision of the bill aims to stop lawsuits that have the sole purpose of harassing or maliciously injuring another party. If such a suit is filed, a court may give the plaintiff 21 days to withdraw or correct the claim. If the plaintiff fails to do this, the court must order that party to pay the defendant’s costs, including reasonable attorney fees. This should dissuade potential plaintiffs from filing baseless suits, which will allow our businesses to focus on commercial growth rather than threats of litigation.
Second, SS SB1 takes the current cap on noneconomic damages in medical malpractice cases, $750,000, and applies it to claims against long-term care providers. It also limits punitive damages in all cases to the greater of $200,000 or two times compensatory damages. Importantly, an amendment to the bill excludes suits against drunk drivers from the punitive damages cap altogether.
Third, the bill changes Wisconsin’s rules of evidence regarding the qualification of expert witnesses. SB1 adopts the test outlined by the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals. This test is already standard in the majority of states, as well as the federal courts. Adoption of this provision will allow judges to limit the jury’s exposure to unqualified expert witnesses.
Finally, SB1 provides for greater confidentiality of some health care service reviews. For example, Incident or Occurrence Reports are generated by internal peer review processes between medical providers after an incident has occurred. These reports will be protected from use in courtrooms. The reasoning for this is that peer reviews will be of little value if medical service providers censor themselves out of fear of litigation.
Meanwhile, Misconduct Incident Reports will continue to be required by the state Department of Health Services. These reports will be available for review by plaintiff’s attorneys. Plaintiff’s attorneys would then be free to depose any employees or witnesses to properly investigate the incident.
Thus, the goal of the health care service review provision of SS SB1 is not to protect at-fault healthcare providers. Plaintiff’s attorneys will still be able to adequately investigate and litigate claims. Rather, SS SB1 seeks to open up communications between healthcare providers regarding best practices. In the long run, this will lead to better healthcare for everybody.