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As lawyers wrestle with tort reform, state Democrats look to reverse changes

By: Jack Zemlicka, [email protected]//October 25, 2011//

As lawyers wrestle with tort reform, state Democrats look to reverse changes

By: Jack Zemlicka, [email protected]//October 25, 2011//

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Tort reform laws passed earlier this year are starting to cause trouble for Milwaukee lawyer Lynn Laufenberg.

The plaintiff’s attorney at Laufenberg, Stombaugh & Jassak SC is in the midst of a medical malpractice lawsuit and said he would benefit from access to a 2008 incident report related to assessing liability.

State legislation passed in February now keeps such incident reports confidential and inadmissible in court, however.

“Now it is the subject of debate,” he said, “even though the incident predates the law by almost three years.”

This year’s tort reform legislation also capped noneconomic damages in suits against long-term health care providers. The changes have forced plaintiff’s lawyers to reconsider filing suits they otherwise would have before Feb. 1, Laufenberg said.

Legislation proposed Wednesday seeks to reverse that trend, however, as it would eliminate the $750,000 cap on noneconomic damages against nursing homes and reinstate the right for patients and their attorneys to admit incident reports as evidence.

Sen. Chris Larson

Sen. Chris Larson, D-Milwaukee, who introduced the bill, said he isn’t optimistic the proposed changes will pass in a Republican-dominated legislature, but he argued change is needed as the current law is preventing legitimate claims from being brought.

“Smart attorneys are going to look at the law,” Larson said, “and say, ‘These documents are not discoverable and there are these arbitrary caps on victims of abuse and neglect.’

“Maybe there is not as much of a sense to bring justice forward.”

In the nine months since the tort reform legislation passed, Laufenberg said, his firm has yet to file any claims against nursing homes or other long-term health care facilities.

“There is a deterrent in the sense that virtually all of these cases are going to be tried,” he said. “Lawyers are taking these cases with the expectation that no matter how strong it is on merits, it is going to trial.”

The $750,000 cap gives defendants less certainty than before, said Milwaukee defense attorney Sam Leib, of Leib & Katt LLC, which means they are less willing to settle cases.

The change has likely weeded out some “non-meritorious” suits, he said, but it also gives nursing homes incentive to challenge claims.

“Hopefully, what you will see in the future, assuming the Feb. 1 change stays in effect,” Leib said, “is a willingness on behalf of nursing homes and insurers to try these cases that shouldn’t be paid.”

If the tort reform measures are reversed, said Milwaukee plaintiff’s attorney Jeff Pitman, families and victims could recover more for negligent behavior.

“I can’t say it’s going to encourage me to litigate more cases,” he said. “What it will do is allow families to get the full truth and compensation they deserve.”

A reversal of the changes also could serve as an incentive for a higher quality of care, he said, by holding providers more accountable.

Pitman, who has yet to file a nursing home abuse case under the modified law, said he still plans to bring suits against long-term health care providers, but under current law, clients could lose out on compensation.

“It’s not something we rush into,” he said. “I have not had the unfortunate experience of taking a case to trial that would be worth $5 million, but is capped at $750,000.”

Laufenberg said his firm will evaluate any case that comes in the door, but while this year’s tort reform laws are still on the books, he said, attorneys are taking a closer look at reward versus risk.

“Anyone who says they will take all cases, that is not a fact,” Laufenberg said. “Law firms have finite resources and cannot make unlimited investments in cases that have a limited return and high risk.”

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