The Wisconsin cap on noneconomic damages is one component of a three-part strategy that is credited with stabilizing the state's medical liability environment, but it's been subject to constant attack and revision. The state Supreme Court is weighing whether to accept a case that will likely determine the $750,000 cap's legal fate.

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The cap has been nonexistent since a three-judge state appellate court panel ruled July 5 that it was unconstitutional. The Wisconsin Supreme Court is deciding whether it will review the case. If it decides not to, the appellate ruling stands. If a review goes forward, a ruling must be delivered by the end of next June.

Wisconsin's comprehensive medical liability system includes three central elements:

  • A requirement for most physicians to carry $1 million in liability coverage per occurrence and $3 million in aggregate.
  • The Wisconsin Injured Patients and Families Compensation Fund, which is financed via assessments (based on actuarial risk) charged to physicians, clinics, hospitals and other participants and covers all damages above the primary insurance limits.
  • A $750,000 cap on noneconomic damages.

"That cap allows the fund to provide a level of coverage that is unparalleled in any other state," said John Rather, Wisconsin Medical Society (WMS) general counsel. It also allows Wisconsin physicians to pay lower premiums than their peers in neighboring states.

(On top of an assessment fee of between $606 and $1,091 for the patient fund, the Doctors Co. charged Milwaukee County ob-gyns $34,667 for liability premiums in 2016, according to the 2016 Medical Liability Monitor survey. The same carrier charged $127,748 to ob-gyns in Cook County, Illinois, and $91,072 to those in Wayne County, Michigan.)

"The cap is critical to attracting physicians to the state and retaining them," Rather said. "It affects the cost of health care, a physician's willingness to engage in complex care. It affects physician decision-making. And it affects the patient-physician relationship."

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