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Largest settlement of 2009 tops $17M

By: dmc-admin//January 11, 2010//

Largest settlement of 2009 tops $17M

By: dmc-admin//January 11, 2010//

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Plaintiffs’ lawyers in Wisconsin will have to keep on waiting for a test case to challenge the $750,000 statutory cap on noneconomic damages in medical malpractice cases.

Madison lawyer Daniel A. Rottier, of Habush Habush & Rottier SC, believed he had a strong contender last year with Bomkamp, et al. v. Go, M.D., et al. But he said it was in the best interests of his client to agree to waive a challenge to the cap and maximize the settlement.

The total settlement in Bonkamp is $17.3 million, the largest sum reported to Wisconsin Law Journal’s “Verdict & Settlement Reporter” in 2009.

Cap encourages settlement

Back in 1995, the Legislature set a cap at $350,000 for noneconomic damages in medical malpractice cases, which was struck down by the Wisconsin Supreme Court in Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125 (2005).

A year later, lawmakers enacted the current cap.

Rottier says the strongest cases often settle, which has prevented the constitutionality of the cap from being challenged in court.

In the meantime, the Bonkamp case does present another important issue for medical malpractice attorneys. Sec. 655.015 Wis. Stats. provides that funds set aside for future medical expenses in excess of $100,000 shall be paid into the Wisconsin Patients Compensation Fund. Further, § Ins. 17.26(4) Wis. Admin. Code states that the fund shall reimburse a claimant for medical expenses as they are incurred, and under (f), if the injured person dies before his or her fund is exhausted, the balance reverts to the insurer.

What that means, Rottier said, is that the fund “was allowed to hold back $8 million and pay it out as it is spent. We feel that that’s inappropriate — that we should have total control over it.”

He is challenging that result, and the issue is in the briefing stages before the trial court. Rottier expects it to ultimately go before the Wisconsin Supreme Court.

The Fund is represented by David McFarlane, of Bell Gierhart & Moore SC, who declined to comment for this story.

The plaintiff in the underlying case, Shelbey Bonkamp, was 6 years old when she underwent a routine splenectomy performed by Dr. Leonard Go. Go used a surgical instrument for which he had no training or experience during the procedure. Shelbey sustained massive blood loss as a result, prompting cardiac arrest and a severe, permanent brain injury. She is now wheelchair-bound, and cannot talk or feed herself.

It’s a “a very tragic case,” said Rottier.

Go conceded liability. Physicians Insurance Company of Wisconsin had insured him with a $1 million policy, which was paid pursuant to plaintiff’s summary judgment motion, over the fund’s objections.

The sum went toward satisfying outstanding medical bills.

The Medical Examining Board is still investigating Go, and has not taken any action against him yet.

As for Shelbey and her parents, Rottier said they are doing, “as well as they possibly can. It’s a horrible situation to go from a perfectly healthy child on one day, other than needing a splenectomy, to suffering such a devastating injury.”

2009 Largest Settlement

MEDICAL MALPRACTICE: $17.3 MILLION

Injuries: Permanent brain damage

Case: Bomkamp, et al. v. Go, M.D., et al.

Court/case no.: Dane County, 07 CV 4013

Judge: Maryann Sumi

Verdict or settlement/amount: Settlement, $17.3 million

Date of incident: June 14, 2007

Special damages: Past medical expenses: $1.25 million; past and future pain, suffering and disability: parents’ past and future loss of society and companionship: $750,000; future loss of earning capacity: $1,602,000; home modifications: $400,000; future care needs: $13,298,000, $8,204,327.27 of which was set aside in a future medical fund pursuant to § 655.015 Wis. Stats and § Ins. 17.26(4)(f) Wis. Admin. Code.

Pursuant to the settlement agreement, plaintiffs are proceeding with their challenge to the constitutionality and application of § 655.015 Wis. Stats., and § Ins. 17.26(4)(f) Wis. Admin. Code. If the plaintiffs are successful in that litigation, then the entirety of the set aside amount will be paid to Shelbey Bomkamp.

Pursuant to the settlement agreement, the defense paid the entirety of the plaintiff's claims for all damages.

Plaintiff's attorneys: Daniel A. Rottier, James M. Fergal, Habush Habush & Rottier SC, Madison

Defense attorneys: For Dr. Go, Physicians Insurance Company of Wisconsin: Barrett Corneille, Corneille Law Group LLC, Madison; for the Injured Patients and Families Compensation Fund: David E. McFarlane, Kate Harrell, Bell, Gierhart & Moore SC, Madison

Insurance carrier: Physicians Insurance Company of Wisconsin insured Go with a $1 million policy limit; the Injured Patients and Families Compensation Fund had coverage from $1 million and above, with no limit for compensatory damages.

Plaintiff's experts: Medical experts were primarily her caregivers, including physical medicine and rehabilitation physicians, and numerous therapists. In addition, Robert Taylor of Vocational Diagnostics Inc. was named as a vocational expert and life care planner and Prof. Karl Egge, of Macalester College, St. Paul, was named as an economist.

Plaintiff counsel's fact summary: Shelbey Bomkamp, age 6, underwent a laparoscopic splenectomy surgery. The procedure was elective for a congenital problem with her spleen. If the surgery had been performed uneventfully, Shelbey would have had no residual problems following the surgery.

The surgery was performed by Dr. Leonard Go, a general surgeon employed by Dean Health Systems Inc. The surgeoun utilized an instrument, a morcellator, for which he had no training and no experience. The morcellator is a circulating blade and in unskilled hands, it can cause massive destruction. During the procedure, Go transected the infra-renal aorta, cut partially through the inferior vena cava, and caused an injury to the small bowel. There was massive blood loss of approximately 1,900 ml of blood, which is practically the total blood volume of a 6-year-old. As a result, Shelbey suffered a cardiac arrest and an anoxic brain injury during the surgery.

Shelbey has suffered permanent brain damage, she is wheelchair bound, and does not talk. She cannot roll over, much less ambulate, or feed herself. She requires 24-hour care and is fed through a gastrostomy tube. She is able to communicate with her parents and caregivers through eye-blinking. She has suffered significant cognitive impairment in addition to the physical disabilities.

After disclosure of plaintiffs’ liability experts, Dr. Go, his insurer and the Injured Patients and Families Compensation Fund all admitted to liability on his part.

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