Thanks, Louis
Rick Esenberg, attorney and adjunct professor at the fine learning institution known as Marquette University Law School, has a heads up on a new Wisconsin State Supreme Court decision. Once again, the court has taken the law concerning non-economic damages in malpractice cases and thrown it out the window. From the mouth of the Shark...
Esenberg points out an interesting aspect about this decision (and the reason for this post's title)...
Today, in a case called Bartholemew v. Wisconsin Patient's Compensation Fund, the Court overruled its decision in Maurin v. Hall which held that a medical malpractice claims including a claim for wrongful death were subject to the limitations on noneconomic damage in the wrongful death statute, i.e., $ 350,000.I have yet to read the opinion, but I'll try to get to it tonight.
As a result, plaintiffs were able to recover 1.2 million instead of $ 350,000 in a case where a doctor apparently missed signs of an impending heart attack and the plaintiff suffered serious debilitating injury before dying 5 years later. Given that the legislature, intended to cap noneconomic damages at $ 422,000 in malpractice cases (overturned by the Court last year by its bizarre decision in Ferdon v. Wisconsin Patient's Compensation Fund) and wrongful death damages at $ 350,000, this was a neat bit of work.
Esenberg points out an interesting aspect about this decision (and the reason for this post's title)...
What is striking about all of this is that Maurin is only two years old. What has changed since 2004? Have we learned more about noneconomic damages in malpractice cases? Has the Maurin decision proven to be unworkable?What a difference that one vote can make.
No. Louis Butler replaced Diane Sykes. That's it.
Normally, courts give precedent a bit more deference than this; if only to avoid the appearance that they are completely results-oriented. To throw a two year old opinion under the bus in this way is, while not entirely unheard of, very unusual.
