Wisconsin damage cap doesn't cover all medical residents

An appellate court found that state law excludes residents in their first year; physicians say the Legislature didn't intend to leave out that one group.

By Tanya Albert, AMNews staff. Jan. 17, 2005.

Wisconsin's first-year medical residents are facing the possibility that the state's cap on noneconomic damages doesn't protect them from large jury verdicts for pain and suffering.

A Wisconsin appellate court ruled that the law that establishes the state's limit requires that a health care provider be licensed to be covered.

The court said that doesn't include first-year medical residents who aren't fully licensed.

Under the ruling now on appeal to the Wisconsin Supreme Court, first-year residents would have to pay noneconomic damages that the jury awarded. The residents would not be covered by the Wisconsin cap on pain and suffering damages that now limits noneconomic damages to $423,000 even if the jury awards a higher amount.

The family who initiated the lawsuit against the then first-year resident says the way the law defines health care provider is as a licensed physician. They also argue there is no reason to believe it would hurt Wisconsin's health care system to interpret the law in that way.

But physicians say that if the ruling is allowed to stand, it will be harder to attract residents to train in the state, which is medical liability-friendly at present.

Wisconsin is one of six states that the American Medical Association lists as not showing any signs of the medical liability insurance crisis that is plaguing 20 other states where physicians are retiring early, leaving the state or eliminating high-risk procedures.

"Excluding first-year medical residents from the state cap undermines the stability of the Wisconsin medical liability system," said Donald J. Palmisano, MD, the AMA's immediate past president. "Residents look very carefully at the stable states ... and they put that in their evaluation of deciding where they will go."