I am vetoing Assembly Bill 764 in its entirety. This bill would require courts in medical malpractice cases to reduce the amount of damages awarded to an injured claimant, by the amount an injured claimant receives from other "collateral sources" in compensation for injuries sustained as a result of medical malpractice.
I am vetoing this bill because it unfairly allows those who commit medical malpractice to profit from health benefit payments that injured patients may receive from outside sources. Laws governing medical malpractice are supposed to deter wrongful conduct and reduce the occurrence of malpractice. Assembly Bill 764 has the opposite effect: it relieves those legally responsible for medical malpractice from their obligations to pay for malpractice damages, in cases where injured patients had the foresight, or good fortune, to obtain health care benefits. That isn't fair.
Furthermore, Assembly Bill 764 is unnecessary. Injured claimants very rarely benefit from "double payments," and most third-party payers, such as private and public health insurers, require claimants to repay any benefits they receive from their insurer when they also receive damages from a defendant in a medical malpractice action.
The Legislature should be focused on ways to protect victims from wrongful and harmful conduct, rather than relieving the legal obligations of those who commit medical malpractice. I therefore must veto this bill.
Respectfully submitted,
Jim Doyle
Governor
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December 2, 2005
To the Honorable Members of the Assembly:
I am vetoing Assembly Bill 766 in its entirety. This bill is the Legislature's response to Ferdon v. Wisconsin Patients Compensation Fund, the recent Wisconsin Supreme Court decision that struck down as unconstitutional Wisconsin's preexisting cap on noneconomic damages in medical malpractice cases. This bill creates new caps on noneconomic damages for persons injured as a result of medical malpractice: $450,000 for persons age eighteen and older, and $550,000 for persons under age eighteen.
I am vetoing Assembly Bill 766 because it is very unlikely that the Wisconsin Supreme Court would uphold it. While I've always said that caps could be structured to address the concerns of the Wisconsin Supreme Court, Assembly Bill 766 would almost certainly be struck down and, as a result, does not represent a real solution.
The bill's primary failing is that it ignores one of the Court's major concerns - that caps "cannot be set unreasonably low." The Court has already struck down a $445,775 cap. Passing what is virtually the same cap - $450,000 - and including a nominal increase for persons under age eighteen does not represent a serious effort to address the concerns of the Wisconsin Supreme Court.
Moreover, the amount of the caps in Assembly Bill 766 would likely be considered arbitrary and lacking a rational basis by the Wisconsin Supreme Court. Before this bill was drafted, a legislative task force was created and charged with studying the issue of medical malpractice caps. The task force heard testimony and gathered evidence, but in making its final recommendations, did not select an actual cap amount or an appropriate range. The task force left the cap amount blank, for legislators to later fill in. It seems terribly unlikely that the Wisconsin Supreme Court would find that the caps in Assembly Bill 766 have a rational basis when the task force process that ultimately led to their passage left the most crucial element of the caps-the amounts-blank.
Distinguished constitutional law experts who have studied this issue agree. My office recently sought the opinion of University of Wisconsin Law School faculty members regarding the constitutionality of Assembly Bill 766. Their conclusions were unequivocal. In their letter responding to my inquiry, they state that "Assembly Bill 766 at most half-heartedly attempts to address only one of the several constitutional problems of its predecessor, and clearly fails in that attempt." The letter concludes: "there is no rational basis for [Assembly Bill 766]."
Legal experts agree that a Court which found a $445,775 cap unconstitutional would most certainly strike down a cap not even $5000 higher. Approving a law that would be quickly overturned doesn't do anyone any good. Instead, I encourage all the interested parties on all sides of this issue to get together and figure out a responsible and lasting solution that has a real chance of being upheld by the Wisconsin Supreme Court.
Respectfully submitted,
Jim Doyle
Governor
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Communications
November 29, 2005
Patrick Fuller
Assembly Chief Clerk
17 West Main Street, Suite 208
Madison, WI 53708
Dear Chief Clerk Fuller:
I respectfully ask to be recorded as voting with the majority on the following bills considered by the Wisconsin State Assembly on Wednesday, November 9, 2005:
Assembly Bill 456 relating to prepayment penalties on variable rate residential mortgage loans: and
A643
Assembly Bill 591 relating to global positioning system tracking for certain sex offenders while on probation, extended supervision, parole, supervised release, or conditional release and providing a penalty.
Thank you in advance for your prompt attention to this matter. If you have further questions or need additional information please let me know.
Sincerely,
Scott r. Jensen
State Representative
98th District
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November 29, 2005
Patrick Fuller
Assembly Chief Clerk
17 West Main Street, Suite 208
Madison, WI 53708
Dear Chief Clerk Fuller:
I respectfully ask to be recorded as voting with the majority on the following bills considered by the Wisconsin State Assembly on Thursday, November 10, 2005:
Assembly Bill 788 relating to posting of information relating to certain pending state contracts and orders on the Internet.
Thank you in advance for your prompt attention to this matter. If you have further questions or need additional information please let me know.
Sincerely,
Scott r. Jensen
State Representative
98th District
__________________
December 2, 2005
Patrick Fuller
Assembly Chief Clerk
17 West Main Street, Suite 208
Madison, WI 53708
Dear Chief Clerk Fuller:
Would you please add me as a co-sponsor of Assembly Joint Resolution 68, Representative Friske's constitutional amendment about line item vetoes? I would appreciate it.
I apologize for any inconvenience. Thank you for your help.
Sincerely,
Joe Leibham
State Senator
9th Senate District
__________________
December 5, 2005
Patrick Fuller
Assembly Chief Clerk
17 West Main Street, Suite 208
Madison, WI 53708
Dear Chief Clerk Fuller:
Please add my name as a co-sponsor on Assembly Bill 850. Thank you.
Sincerely,
Mark Gundrum
State Representative
84th Assembly District
