Civil Justice Reform Bills Moving Forward

The past few weeks have been very active on the civil justice reform front. The Assembly and Senate Judiciary Committees have held a number of public hearings on bills supported by various Hamilton Consulting clients related to the state’s civil justice system.

Eliminating Phantom Damages

AB 29/SB 22, authored by Rep. Andre Jacque and Sen. Paul Farrow, allows juries in personal injury cases to see all the evidence when determining the amount owed to compensate the plaintiff for his or her medical expenses. Under current law, defendants in personal injury cases are not allowed to introduce evidence of payments made to the plaintiff by third parties (collateral sources) when determining the “reasonable value” of the medical expenses. As a result, plaintiffs and their attorneys unjustly receive windfalls, which some courts have referred to as “phantom damages.”

AB 29 received a hearing in the Assembly Judiciary Committee. We are hopeful that the Senate will allow the bill to move forward for a hearing in the near future and that the legislation will pass both houses this spring. Unfortunately, the Senate companion bill has yet to receive a public hearing due to opposition by health insurance companies.

For more information, please visit the Wisconsin Civil Justice Council’s (WCJC) website.

Transparency in Private Attorney Contracting

AB 27/SB 19, authored by Rep. Mike Kuglitsch and Sen. Glenn Grothman, has received public hearings in both the Assembly and Senate Judiciary Committee. The legislation imposes new requirements when the State of Wisconsin hires private plaintiff attorneys on a contingency fee basis. In addition, the legislation places a cap on the amount of private plaintiff attorneys can receive when representing the state. The bill also requires the state to post the contract on the Government Accountability Board’s website for the public to review.

AB 27 was passed out of the Assembly Judiciary Committee on a party-line vote (5-3). The Senate is expected to pass it out of committee soon. For more information about AB 27/SB 19, please see WCJC’s website.

Personal Injury Trust Claims Transparency

AB 19/SB 13, authored by Rep. Andre Jacque and Sen. Glenn Grothman, prevents fraud and double-dipping during the litigation process in cases dealing with trust funds set-up to compensate victims of certain types of injuries.

The largest number of personal injury trusts is related to asbestos exposure. More than 60 bankrupt companies have created such trusts to compensate present and future asbestos claimants for alleged injuries. Nearly all of the companies most responsible for asbestos injuries – the miners and manufacturers of asbestos – have established such trusts. Many of the companies being sued today had only peripheral involvement in the asbestos business.

In some instances, plaintiffs who file (or could file) claims with these personal injury trusts may also seek compensation for their injuries through a second channel – lawsuits against solvent defendants (i.e., businesses) in the courts. The ability of plaintiffs to seek multiple recoveries – without any transparency regarding these multiple recoveries – is what this bill addresses.

Both the Assembly and Senate Judiciary Committees have held public hearings on AB 19 and SB 13. It is hopeful that the bills will be voted on by the full Legislature this spring.

For more information about AB 19/SB 13, please see WCJC’s website.

Physician’s Duty of Informed Consent in Wisconsin: Overturning Jandre v. Wisconsin Injured Patients and Families Compensation Fund

AB 139/SB 137, authored by Rep. Jim Ott and Sen. Glenn Grothman, overturns a negative Wisconsin Supreme Court decision dealing with a physician’s duty of informed consent.

In Wisconsin, physicians have a duty to provide patients with meaningful information regarding significant potential risks of treatment or tests, allowing patients to make rational and informed decisions regarding their health care. A recent split decision of the Wisconsin Supreme Court in the Jandre case has left physicians with unclear and unworkable direction from the Court on how physicians can meet their duty.

AB 139/SB 137 removes the uncertainty caused by the Wisconsin Supreme Court. For more information, please see WCJC’s website.

Please feel free to contact Andy Cook if you have questions about any of this legislation.