Difficulty in pursuing medical malpractice cases in Wisconsin
Our office receives numerous inquiries day in and day out about persons claiming to have been injured by a physician and wanting to sue for malpractice. Many of the questions individuals post at some of the popular lawyer search web sites, such as lawyers.com and Avvo.com, are individuals seeking a lawyer to handle a medical malpractice case. Medical malpractice cases are difficult to pursue. Not only must you prove that the doctor was negligent, but there has to be significant damages to warrant an attorney to pursue the case. Some medical malpractice cases can cost an attorney over $100,000 in out of pocket costs and expert fees, which is why so many cases get turned down. Even if arguably where there may be medical negligence, if the damages are lacking, the attorney cannot simply afford to spend $100,000 on costs on what may be a $50,000 case.
Further, medical malpractice cases are rigorously defended by insurance companies. These cases are rarely settled without going to a full blown jury trial. At trial, medical malpractice cases are usually won by the physician. Jurors for whatever reasons, do not like to find fault with physicians. The odds are around 9/10 that the jurors side with the physician when reaching a verdict.
According to the Milwaukee-Journal Sentinel, the number of medical malpractice lawsuits in Wisconsin fell to 140 last year, a drop of more than 50% since, 1999, per court records. Add to that, under Wisconsin law, there is a $750,000 cap on “noneconomic damages” which works in favor of physicians. “Non-economic damages” includes pain and suffering and/or loss of companionship. There are further limits if a physician is employed by the state of Wisconsin. The limit on damage awards for state employees is $250,000 per defendant.
Fees for lawyers are also limited under Wisconsin law; Fees are limited to one-third of the first $1 million won, plus 20% of any awards over that amount. Fees are contingent upon the patient receiving a settlement or jury verdict. The lawyer doesn’t get paid if the patient doesn’t win the case. The client runs no risk. However, the lawyer pursuing the case runs a huge risk that they may invest $60,000 to $100,000 of their own money in pursuing the case, invest 18 months to 3 years of their time pursuing the case, and the odds are at trial, that at best, they have a 10% chance of winning; that is why most personal injury lawyers have gotten out of suing physicians, hospitals and other health care practitioners. Unless the case is open and obvious and there are significant damages, a patient injured by a physician in the state of Wisconsin, is going to have a very hard time finding a lawyer to pursue their case anymore.
*An excellent article on medical malpractice cases in the state of Wisconsin by Cary Spivak, appeared in the Milwaukee Journal-Sentinel.