With a sense of urgency, Sen. Scott Fitzgerald (R-Juneau) and Rep. Curt Gielow (R-Mequon) announced new legislation at a Capitol news conference on February 21 that caps medical liability for non-economic damages at $750,000.

"Is $750,000 too high? My response is that it is at the high end of the actuarial studies, but we need to deal with this in a short time period and put something on the Governor’s desk," Fitzgerald said at the crowded State Capitol news conference. "Malpractice insurance rates are going up. Doctors will stop delivering babies. Smaller practices are in harms way since the (Ferdon) decision. The Legislature is running out of time...we need to address this."

The bill also requires the Board of Governors of the Injured Patients and Families Compensation Fund to report every other year to the state Legislature, and give reasons for any recommended changes to the limits on non-economic damages.

"We hope this gets us to a balanced answer that puts stability back in the medical malpractice environment and brings the certainty that the insurance companies are looking for," said Rep. Gielow, who chaired the Assembly’s Medical Malpractice Task Force. "It is fair and equitable to those who rightly have a claim."

The Wisconsin Hospital Association and the Wisconsin Medical Society hailed the proposal. Both organizations strongly endorsed the notion that the $750,000 limit will withstand a constitutional challenge.

Justice William Bablitch, who served 20 years as a member of the Wisconsin Supreme Court, assisted WHA and WMS in developing the legislation. Prior to his service on the Court, Bablitch served in the State Senate for 11 years, including seven years as the Democratic Senate Majority Leader. Bablitch is currently a partner at Michael Best & Friedrich, serving primarily as an appellate and legislative consultant.

"As I read and reread the Ferdon opinions, which struck down the original cap, I became convinced that the primary concern of the Court cap was the amount," Bablitch said. "Two (of the four) justices who voted to strike down the cap mentioned only the amount of the cap and indicated that some cap could be constitutional, but that the cap of $350,000, adjusted for inflation, was irrational and arbitrary," Bablitch continued. "We drafted the bill with those concerns in mind."

Justice Bablitch praised Sen. Fitzgerald, Rep. Gielow and legislators from both parties for their determination to avert a medical availability crisis in Wisconsin.

"It has been my experience that our political system today provides little gain for those politicians who try to deal with problems or potential crises before they become a crisis. It is unfortunate, but true, that more political gain comes to those who deal successfully with problems or crises after they come on everyone’s radar screen. There is not a lot of political gain for those legislators who come to grips with the medical malpractice problem before it becomes a crisis, but it is the right thing to do. And that is what this bill does."

After much study, Bablitch said, in his judgment, the $750,000 cap would "pass constitutional muster."

"In my judgment, this cap is like Baby Bear’s porridge, not too high not too low, just right," according to Justice Bablitch. "The cap of $750,000 cannot be looked at in isolation. It is just part of the compensation available. The other part is economic damages, of which 100 percent can be recovered."

Sandy Anderson, president of St. Clare Hospital in Baraboo, said the impact of losing the cap has already hit and will only worsen with time.

"We need to be able to recruit physicians to rural Wisconsin. Otherwise, access will be an issue. Usually, doctors you are recruiting ask if your hospital is financially solvent. Now they ask about the medical malpractice caps," Anderson said. "I’ve been getting that same question the past six months from doctors. I urge the Legislature to give me good news that I can share with them."

WHA President Steve Brenton, assured the audience that Anderson has reason to be concerned. Citing six events over the last seven months that signal trouble for Wisconsin’s health care delivery system, Brenton closed the news conference on a cautionary note: "The medical liability environment here has gone from superior to deteriorating. That is why we need this legislation now."

The bill announced at the news conference will be introduced early next week, and is expected to have a great deal of bipartisan support.

"This bill is a tremendous advance for the continued stability for health access in the state of Wisconsin," said Rep. Sheldon Wasserman (D-Milwaukee). "This cap will restore the balanced medical liability and medical practice climate for hospitals and physicians to provide high quality and safe care. It will also go a long way towards making sure we can attract the physicians we will need to care for us in the future."

Many from both parties also believe Governor Doyle must sign the new legislation.

"Failure to sign this bill would create a very damaging distraction for the Governor on the issues that he wants to promote," Sen. Bob Jauch (D-Poplar) said in an interview with Ashland’s The Daily Press. "He wants to talk about his record of leadership, and talk about his programs that address health care costs…I think a second veto would not be helpful for him."

WHA’s Brenton echoed those sentiments. "We are very appreciative of the legislators from both parties that have put politics aside and stepped up the plate to get this done," Brenton said. "The threat to our health care system is too great and too real for us not to pass this clean bill. The threat is also too great and too real for Governor Doyle to veto another bill. It must get done."

Republican legislative leaders this week delivered on their previous commitment to address Wisconsin’s looming medical liability crisis with a public pledge to support a $750,000 cap on non-economic damage awards. This is welcome news for all Wisconsin citizens. And the initiative deserves the bi-partisan support it is expected to receive.

Just seven months ago, the Wisconsin Supreme Court, on a 4-3 vote, overturned the state’s cap on non-economic damages. Speaking at a news conference less than 24 hours following the decision, WHA told the press that the ruling would have a detrimental impact on Wisconsin’s physician workforce and that patient access to care would emerge as a top priority health care issue demanding immediate attention. Our press release that day demanded that the Court’s mistake "be fixed" and indicated that WHA "will not stand by and watch Wisconsin become Illinois, or any of the dozens of other states where frenzied litigation is slowly destroying access to affordable health care."

How right we were.

Consider these ugly events of the past 200 days:

• A 25 percent increase in Patient Compensation Fund premiums directly resulting from the Court’s decision.
  
• A 22 percent increase in million-dollar cases filed in the last six months…compared to the similar timeframe of the previous year.
  
• In just seven months, four jury awards were reached or reinstated that exceeded the previous damage cap compared to just nine such awards in the previous decade.
  
• A shocking $4.25 million non-economic damage award (total award was approximately $8.3 million) delivered by a Dane County jury three weeks ago.
  
• Trial lawyer association seminars marketing themes such as "How to Get the Million Dollar Verdict" that are directly tied to the July 14, 2005 decision.
  
• The Wisconsin Office of Rural Health reporting an "unprecedented" number of physician vacancies all across rural Wisconsin, with our best recruitment tool no longer on the table.
  
• Large multi-specialty clinics and hospitals in urban areas reporting rising physician vacancy levels and physician recruiters noting cancelled out-of-state candidate appointments due solely to the Supreme Court decision.

Deteriorating is an apt description of Wisconsin’s current physician recruitment and retention environment. The forceful acknowledgement this week by GOP lawmakers of the urgency of the issue and their commitment to address the crisis within the next four weeks will receive WHA’s full support and total commitment.

Steve Brenton
President

MADISON (February 21, 2006) — Leaders from the Wisconsin Hospital Association (WHA) and the Wisconsin Medical Society (the Society) today hailed a new legislative proposal that would reinstate a cap on non-economic damages (pain and suffering) at $750,000.

On July 14, 2005, the Wisconsin Supreme Court overturned the state’s ten-year-old cap on non-economic damages, throwing Wisconsin’s once envied medical liability system into turmoil. Since then, physicians have cancelled recruiting visits to Wisconsin, premiums for the Injured Patients and Families Compensation Fund (IPFCF) have increased by 25 percent, four awards have already exceeded the previous cap, the number of lawsuits in excess of $1 million are up by over 22 percent, and a stunning $8.4 million verdict was handed down in Dane County. That’s why reinstating a cap as soon as possible has been a top priority for both WHA and the Society.

"We have said all along that it was our desire to move ahead with a straightforward bill that reinstates an effective cap on non-economic damages, period — no politics, no other bells and whistles, and that is exactly what this legislation accomplishes," said WHA President Steve Brenton. "The writing is so clearly on the wall, and we simply can’t sit around and watch our state slip into a medical access crisis. We have to fix the cap this session, and we appreciate all the bipartisan support that has been voiced for this approach."

"This bill helps doctors concentrate on what concerns them the most: caring for patients," said Susan Turney, MD, CEO/EVP of the Wisconsin Medical Society. "It doesn’t change the fact that injured patients are fully compensated for their economic losses yet helps to maintain access to health care in Wisconsin."

The proposal also requires a review of the cap every two years by the Board of Governors of the IPFCF. The Board is also required to recommend any changes to the cap amount to the Legislature, and include its reasoning for such changes.

"We looked very closely at the Court’s decision, weighed many of the arguments made both in support and against a cap," said former Supreme Court Justice William Bablitch. "I believe strongly that this new proposal addresses many of the key concerns raised by the Court and strikes the right balance between the need to fairly compensate victims of malpractice with the absolute necessity of keeping health care accessible in Wisconsin."

Justice Bablitch, who served 20 years as a member of the Wisconsin Supreme Court, assisted the Society and WHA in developing many of the concepts incorporated into the legislation. Prior to his service on the Court, Bablitch served in the State Senate for 11 years, including seven years as the Democratic Senate Majority Leader. Bablitch is currently a partner at Michael Best & Friedrich, serving part time primarily as an appellate and legislative consultant.

Chris Magiera, MD, Wausau, spoke on behalf of himself and his wife, who is a general surgeon practicing in Rhinelander at a news conference held at the State Capitol on February 21. Both came to Wisconsin after practicing medicine in Ohio for 23 years, where working in a medical liability crisis state became a "psychological and financial nightmare."

"This crisis is not about the doctors— it is about the patients. All the stories that you have heard about patients without doctors and medical services are all true. I could give you examples for hours. The medical malpractice crisis adversely affects key areas of health care: access, quality and cost.

An unfortunate series of events in 2005 threatens to wipe out the medical liability stability of the past 25 years. As many other states are moving forward, Wisconsin is unique because it is moving backwards. Don’t let this happen. Don’t turn into another Ohio, New York or New Jersey. With this legislation offered today, elected officials have a chance to get back on track and ensure that the citizens of Wisconsin have the potential to the best access, highest quality and the best health care in the country."

Dozens of hospital representatives traveled to Madison for 2006 Business Day – an event that attracts upwards of 1,000 members of the statewide business community, including hospitals, to Madison to learn about issues impacting Wisconsin’s economic environment. Many of the attendees, including hospital representatives, took advantage of the opportunity to also meet with their legislators.

Liability issues were a primary focus of Business Day 2006. Actions by the Supreme Court this past year have produced a number of decisions that have left the business community very concerned.

"Wisconsin’s litigation climate is clearly hurting our economic environment," said State Sen. Ted Kanavas (R-Brookfield) during a panel discussion on liability issues.

Just this month a Dane County jury awarded a staggering $8.4 million verdict in a medical liability case. Of that $8.4 million, $4.2 million was for non-economic damages, including pain and suffering. The healthcare community has been sounding the alarm over Wisconsin’s uncapped liability environment since the Supreme Court threw out the cap last July. The Dane County case is just one example of what has already begun to happen across the state due to the Court’s decision.

During a WHA member’s only briefing, Senior Vice President Eric Borgerding alerted hospital representatives to the late-breaking news about legislation that was unveiled just one day earlier to restore a cap on non-economic damages (see article on page 1). The proposal, authored by Rep. Curt Gielow (R-Mequon) and Sen. Scott Fitzgerald (R-Juneau), is strongly backed by WHA and would restore a clean cap of $750,000 without indexing or other add-ons.

"We worked extremely hard to move ahead with a straightforward bill – no bells or whistles, no political acrobatics – that reinstated a cap on pain and suffering, and, Rep. Gielow and Sen. Fitzgerald have delivered that in this legislation," said Borgerding. "We are urging the full Legislature and Governor to get behind the Gielow-Fitzgerald bill because it is the vehicle that will restore a non-economic damage cap this session."

The proposal was being circulated this week for cosponsorship, and, Business Day 2006 was perfectly timed for hospital representatives to make their voices heard to their legislators on it. Close to 20 individuals seized the opportunity to meet with their legislators and urge them to cosponsor and support the Gielow-Fitzgerald proposal.

During the rest of the day’s sessions, elected leaders also weighed in on restoring a cap.

"I know we’ve got to get [a cap] in place," Assembly Speaker John Gard (R-Peshtigo) stated during a legislative leadership panel discussion.

And in his remarks later that day, Governor Doyle said, "We can reach common ground…We have to make sure a bill is crafted that will meet constitutional standards, and, I believe we can."

There was also discussion over other aspects of the health care industry.

"We are a world leader in health care research and in providing good jobs due to health care," said Assembly Minority Leader Jon Richards (D-Milwaukee).

During that same panel discussion Senate Majority Leader Dale Schultz (R-Richland Center) added comments on his support for health care transparency initiatives. "We do have bipartisan support for a bill to create broader transparency…I’d like to thank our friends in the hospital community and the medical community. They’ve put a lot of effort into this bill."

Representatives from the following hospitals attended Business Day 2006: Affinity Health System, Beaver Dam Community Hospital, Children’s Hospital of Wisconsin, Columbia St. Mary’s, Franciscan Skemp Healthcare, Grant Regional Health Center, Gundersen Lutheran Health System, Holy Family Memorial Hospital, Osseo Area Medical Center, Saint Joseph’s Hospital/Ministry Health care, Stoughton Hospital, Oconomowoc Memorial Hospital, St. Nicholas Hospital, Sacred Heart Hospital (Eau Claire) and UW Hospital & Clinics.

WHA’s annual Advocacy Day is a key event for Wisconsin hospitals. It is an opportunity to improve our grassroots effectiveness, while learning about the issues that will shape the future of health care delivery in Wisconsin. Make plans now to attend WHA’s Advocacy Day on April 5 in Madison.

The day will kick off with John Fund, editorial board member for The Wall Street Journal, providing insight into the realm of politics, health care policy and more. Also, back by popular demand is Christopher Kush with another interactive session designed to help you make the most of your afternoon legislative visit to the Capitol. Addtionally, Governor Jim Doyle has been invited to speak during the luncheon, and state legislative leaders will participate in a panel discussion focusing on current health care public policy.

The day will be capped by the most important event – a visit to your legislator at the Capitol. To schedule a legislative appointment, call Angela Miloszewicz at WHA directly at 608-268-1801 by Monday, March 27.

"Wisconsin residents take for granted that appropriate care will always be available when they need it. That luxury has disappeared in other states and we can’t wait for a similar fate; legislators should pass the proposed bill before adjourning this spring.

Dark clouds appeared last month when a Dane County court awarded a medical liability plaintiff $4 million in economic damages, plus $4.25 million in non-economic damages. Every such ruling brings us closer to the bleak future described in an August 9, 2005 Wall Street Journal editorial discussing the Wisconsin Supreme Court’s decision to repeal the malpractice cap. ‘The implications for Wisconsin’s economy, which depends both on health care and manufacturing, are onerous,’ the editorial read. ‘The last thing Wisconsin needs is a reputation as a cold-weather Alabama.’" 

            - Duane Erwin, president/CEO, Aspirus, Inc., Wausau

After a unanimous vote of support in the Senate Health, Children, Families, Aging, and Long-Term Care Committee, the full Senate is scheduled to vote on the Health Care Quality Improvement Act next week. The Assembly Health Committee is scheduled to vote on the bill this Tuesday, February 28.

The Health Care Quality Improvement Act (AB 993/SB 578) will expand the cramped 1970s era definition of peer review that currently provides legal protections to quality review and improvement activities that take place within the narrow boundaries of a hospital-based peer review committee. The new statute will protect and, thus, encourage a broader range of quality improvement and patient safety initiatives, including initiatives that rely on collaboration among multiple providers and other organizations, include a wider range of staff within an organization, and include a public reporting component.

As reported by the U.S. Department of Health and Human Services in 2002, "According to many experts, the ‘#1 barrier to more effective quality improvement systems in health care organizations is fear of creating new avenues of liability by conducting earnest analysis of how health care can be improved.’ The report continued that collaborative quality improvement and error reporting in a learning environment, "hold[s] the promise of not only significant improvements in patient health outcomes, but also reductions in medical costs of as much as 30 percent."

Experts, including those at the National Academy of Sciences, have created a road map for drastically improving health care quality in the United States. Among the fundamental recommendations consistently made by patient safety advocates is the creation of a learning environment that encourages organizations to identify errors, evaluate causes, and take appropriate actions to improve performance. Specifically, patient safety advocates have emphasized that for a learning environment in health care to flourish, clear and comprehensive confidentiality protections for quality improvement and reporting systems must be in place.

Rep. Underheim, Sen. Kanavas and Sen. Roessler have taken the lead on this initiative, which has garnered strong bipartisan support.

The Litigation Section of the State Bar of Wisconsin is actively opposing the Health Care Quality Improvement Act.

Wisconsin Hospital Association testified in support of AB 976 at the Assembly Committee on Public Health on February 22. This bill, authored by Rep. Jeff Mursau (R-Crivitz) would create a loan repayment program for medical students who agree to practice medicine in rural areas of Wisconsin. Testifying in support of his bill, Rep. Mursau spoke of the loss of access to health care in his district because of the difficulty in recruiting and retaining medical practitioners. He stated that assuring access in his district and other parts of rural Wisconsin is a personal priority for him.

WHA’s Judy Warmuth said in her testimony, "We must also take into consideration that Wisconsin’s rural physicians are, in general, older than the general population making the need for new practitioners even more urgent."

Byron Crouse, MD, associate dean, University of Wisconsin Medical School referenced "Who Will Care for our Patients," the report by WHA and Wisconsin Medical Society on the future supply of physicians in Wisconsin. He testified that the report indicates that solving the complex problem of physician supply in rural Wisconsin will require multiple strategies. Early commitment of loan repayment to students is one of those strategies.

Tim Size, executive director of the Rural Wisconsin Health Cooperative, also testified at the hearing. The bill was unanimously endorsed by the Committee.

The Latino Health Fair, now in its seventh year, has become a late August tradition in Madison. Last year’s fair focused on the topic of Breast Cancer Awareness and was attended by almost 500 people. As always, the fair attracted families with a wealth of culturally and linguistically relevant wellness and health information.

The health fair is a collaborative effort of the Latino Health Council and representatives of Madison health care provider organizations. Thirty three exhibitors shared health education information with the community and, fitting with the theme of Breast Cancer Awareness, some provided instruction for self-breast exams. In total, 127 screenings were conducted, including testing for cholesterol and glucose, kidney function, body mass, vision and glaucoma and HIV. There were also opportunities to consult with diabetes educators, dieticians and to visit an "Ask the Doctor" station. UW Health participated fully, including preventive cardiology, pediatric pulmonary staff and physicians, department of family medicine physicians, kidney clinic nurses, social workers, and staff interpreters.

Submit hospital community benefit stories to Mary Kay Grasmick, editor, mgrasmick@wha.org or call 608-274-1820.

Administrative support professionals are invited to once again attend WHA’s annual Administrative Professionals Conference, scheduled for March 3, 2006, at the Tundra Lodge & Conference Center in Green Bay.

This year’s event focuses on practical ways to identify and handle some of the most common ethical dilemmas faced by administrative professionals. Additionally, a special session presented by WHA’s government relations staff will provide the opportunity to learn more about the importance of grassroots advocacy and how to better advocate with your legislators on behalf of your hospital.

Chargemaster and APC coordinators, especially those new to their position, coding staff, case mangers, reimbursement specialists, and business office managers should plan to attend the "Chargemaster 101: The Basics" seminar, focused on learning the basics of conducting a Chargemaster review and get the tools needed to keep this vital document up to date.

The seminar will be held on March 15, 2006, from 9 am to 4 pm at the Holiday Inn, West Madison. A brochure and a registration form are available online at www.wha.org, as well as easy, online registration.

With over 70 percent of a facility’s reimbursement originating from the Chargemaster, it is a document undergoing constant change. This March 16 program will provide attendees with the needed tools to return to their individual hospitals ready to validate charging processes and identify not only gross revenues, but also recognize net reimbursement opportunities. Chargemaster and APC coordinators, coding staff, office managers, CFOs, compliance auditors and others involved in auditing functionalities are encouraged to attend.

The "Auditing Techniques for Improved Reimbursement" seminar will be held on March 16, 2006, from 9 am to 4 pm at the Holiday Inn, Madison West. A full program brochure is available at www.wha.org, as well as easy, online registration.

The April 19 seminar, entitled "CMS Revised Conditions of Participation: What Every Hospital Needs to Know," will focus on helping hospitals comply with specific CMS-COP problem areas, including restraints, nursing care plans, informed consent history and physicals, verbal orders, legibility requirements, prohibition on "resume pre-op order" statements, as well as liability and physical documentation.

Additionally, attendees will learn details about COPs and what to do when CMS or the Department of Health surveyors arrive at your facility. Compliance officers, risk managers, quality managers, health information personnel, hospital legal counsel, chief executive officers, chief operating officers, nurse executives, and directors of utilization management are encouraged to attend.

The "CMS Revised Conditions of Participation: What Every Hospital Needs to Know" seminar will be held on April 19, 2006, from 8:30 am to 4:30 pm at the Holiday Inn in Wausau. A brochure with registration form is included in this week’s packet and on the web site at www.wha.org, as well as online registration.

The April 20 program "EMTALA: Update 2006" is designed to focus on changes to the federal EMTALA law, use concrete examples, and make EMTALA understandable. Past attendees of this seminar have repeatedly commented that they were finally able to both understand the EMTALA law and apply it to their facilities.

A summary chart of all of the changes will be provided and discussed. Attendee will also receive a sample hospital policy and a CD containing multiple EMTALA resources. This program is designed for emergency department managers, physician and nurses, OB managers and nurses, behavioral health directors/staff, psychiatrists, nurse supervisors and staff nurses, compliance officers, legal counsel, risk managers, and directors of hospital-based ambulance services.

Since 1993, the Wisconsin Division of Public Health (DPH), Bureau of Environmental and Occupational Health (BEOH) have partnered with the federal Agency For Toxic Substances And Disease Registry (ATSDR) to operate a system for tracking uncontrolled releases of hazardous chemicals. Known as the Hazardous Substances Emergency Events Surveillance (HSEES) system, it allows for encrypted, web-deployed, data entry reported to ATSDR on a "real-time" basis by 15 participating states.

The HSEES database contains information about hazardous material events that include, but are not limited to, event locations (street address, city, county latitude and longitude); the time and date of the event; the number of victims and evacuees; reported victim-dispositions and symptoms; chemical names and quantities; and additional factors such as weather conditions which may have contributed to releases. WI HSEES data has been summarized to provide annual/cumulative and regional frequencies of events, victims and evacuees. Over the last 12 years (1993-2004), there were a total of 5,128 WI HSEES events, which resulted in 1,336 victims who became symptomatic as the result of their exposure to a hazardous substance, and 43,102 evacuees. Spills involving ammonia represented 12 percent of total events for the period. Ammonia spills were responsible for 18 percent of total victims. More than 7,400 persons were evacuated from their homes or workplaces as the result of uncontrolled ammonia releases.

It is anticipated that WI HSEES data used in conjunction with information made available by other agencies, such as Local Emergency Planning Committees (at the County level), for example, will assist hospital disaster-preparedness planning groups to better anticipate and prepare for the possibility of large, uncontrolled releases of hazardous chemicals in their service areas.

Register today for WHA’s "Physician Leadership Development Conference," scheduled for March 24-25 at The American Club in Kohler. Presented by American College of Physician Executives (ACPE) faculty, this conference is designed to assist new and potential physician leaders to make the leap from their traditional clinical training to taking a new managerial approach to decision-making, problem solving, communication and negotiation.

ACPE is accredited by the Accreditation Council for Continuing Medical Education to sponsor continuing medical education for physicians. The American College of Medical Education designates this educational activity for a maximum of 11 category 1 credits toward the American Medical Association’s Physician Recognition Award. Each physician should declare only those credits that he/she actually spent in the activity. Additionally, these programs are part of the ACPE and CCMM requirements toward a graduate degree or certification in medical management.

Affinity Health System has named Daniel Neufelder its next president and chief executive officer. He will join Affinity March 31, working closely with the retiring Kevin Nolan during a transition period.

Neufelder is currently chief operating officer of Memorial Hospital in South Bend, Indiana. Before joining Memorial Hospital, he served in leadership positions at St. Vincent Hospital and Healthcare System and the Community Hospitals of Indiana System—two of Indiana’s leading integrated health networks. He began his career as a health care management consultant at Ernst & Young. The University of Southern Indiana graduate holds an MBA from the University of Indianapolis.

"We salute our committee of community board members, physicians and others from throughout the system who spent countless hours working through an extensive process to select our new CEO," said Nicholas Desien, Affinity board vice chairman and chief executive officer of Affinity’s cosponsor Ministry Health Care. "This community and volunteer commitment is a hallmark of what makes Affinity special in the Fox Cities."

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