Physician Edition


February 7, 2018

Volume 6-Issue 3

Courtroom Advocacy: WHA Files Brief with Supreme Court Supporting Medmal Cap

On January 16, the Wisconsin Hospital Association (WHA) filed an amicus brief with the Wisconsin Supreme Court in Ascaris Mayo v. IPFCF supporting the constitutionality of Wisconsin’s $750,000 medical malpractice non-economic damage cap enacted with bipartisan support in 2006.

“Wisconsin’s unique, balanced medical malpractice system that includes a cap on non-economic damages is a key policy that has helped Wisconsin retain and attract high-quality physicians to Wisconsin communities,” said WHA President/CEO Eric Borgerding. “The Legislature understood in 2006 and understands today that without a sufficient supply of physicians in communities throughout the state, Wisconsin’s high rankings in health care quality and access would not be achievable.” 

“To protect access to quality care, WHA fought hard 12 years ago to enact the bipartisan legislation establishing the current cap, and we are continuing that advocacy effort by supporting the Legislature’s sound policy decision in the courts,” said Borgerding. 

This is WHA’s second amicus brief in this case. In 2015, WHA and the Wisconsin Medical Society jointly submitted an amicus brief to the Court of Appeals in support of the cap. In July 2017, a three-judge panel of the Wisconsin Court of Appeals held that Wisconsin’s $750,000 cap on non-economic damages in medical malpractice cases is unconstitutional for all injured patients because the Legislature lacked a rational basis for enacting the non-economic damage cap. The defendant, the Wisconsin Injured Patients and Families Compensation Fund (IPFCF), then appealed that decision to the Supreme Court.

Timothy Feeley and Sara MacCarthy, attorneys with Hall, Render, Killian, Heath & Lyman P.C., who wrote WHA’s Supreme Court brief, argued that contrary to the Court of Appeals’ conclusion that the Legislature had no rational basis for creating the cap, the caps are not only rational but are enabling Wisconsin to achieve multiple goals.

“The Legislature’s efforts have borne fruit,” wrote Feeley and MacCarthy in WHA’s brief. “Wisconsin leads the nation in health care quality. Furthermore, for more than a decade after Ferdon, Wisconsin’s statutorily enacted comprehensive medical liability system has guaranteed injured patients full compensation for economic damages and allowed recovery for noneconomic damages up to $750,000, something both unique from other states and to other plaintiffs in Wisconsin.”

“The Legislature’s actions have continued the viability of a medical liability system that helps protect all Wisconsin communities’ needs for accessible health care. That accessibility to quality health care is not just a good unto its own, but it is also a key economic development asset for Wisconsin communities,” stated WHA’s brief. “To conclude that the Legislature’s bases for implementing the cap bear no rational relationship to providing access to affordable, quality health care for all Wisconsin residents ignores the evidence and the rational basis test.”

“Disregarding the Legislature’s informed judgment about the way to reduce the disincentives for physicians to practice in Wisconsin jeopardizes the continued viability of Wisconsin’s medical liability system….[and] impairs the ability of WHA members to recruit and retain health care professionals in the communities they serve,” wrote Feeley and MacCarthy.

A decision in the case is expected sometime in 2018.

Top of page (1/19/18)

WHA Special Needs Dental Patients Work Group Examines Statewide Dental Initiatives; Assesses Need

WHA’s Special Needs Dental Patients Work Group welcomed Ann Boson, director of community relations and charitable fund, Delta Dental of Wisconsin, to its meeting January 31. Boson highlighted Delta Dental’s support of dental patients with special needs in a variety of settings throughout Wisconsin. Delta’s support includes funding essential services and equipment in some WHA member hospitals that provide operating room time for patients who must receive their dental treatment while under general anesthesia. Some recent examples of support provided by Delta Dental to Wisconsin hospitals include:

  • $365,000 over three years to Children’s Hospital of Wisconsin to expand training and education. This training will help dental students as well as current dentists and their team members become more comfortable and skilled in caring for dental patients with special needs. 
  • $36,890 to Fort HealthCare’s program to purchase dental instruments and equipment.
  • $11,500 to ProHealth Care for dental equipment for hospital dentistry.
  • $85,000 to the Red Cliff Band of Indians Dental Clinic & Ashland Memorial Medical Center for a pediatric dentist and hospital cart.
  • $71,940 in the past three years to HSHS St. Mary’s and St. Vincent hospitals for dental instruments and equipment.

After Boson’s presentation, the Work Group reviewed results of a survey that was administered to Work Group members. One of the survey’s key findings was the substantial cost of treating special needs dental patients in hospital operating rooms. Most of these special needs patients are on Medicaid, and the reimbursement does not come close to covering the facility’s costs; in fact, losses are incurred on every patient. However, many of these patients must have their dental treatment provided under general anesthesia in a hospital operating room for safety reasons. Addressing this dilemma will be a primary focus of the Work Group. However, Work Group members acknowledged the importance of first determining how many of these dental patients are being served, or waiting for services, in hospital operating rooms throughout the state. WHA is gathering this information, which will inform the Work Group’s policy recommendations.

For further information on the Special Needs Dental Patients Work Group, contact Laura Rose, WHA vice president, policy development, at

Top of page (2/2/18)

WHA Encouraged by Governor’s Health Care Reinsurance Program

Supports state action to stabilize insurance market

In his State of the State address January 24, Gov. Scott Walker reiterated a plan he released earlier in the week that Wisconsin will seek a federal waiver to create a reinsurance program. The reinsurance program is designed to help mitigate the sharp premium increases that individuals purchasing coverage on the health insurance exchange have seen by providing financial support to insurers for some of their most expensive cases.

Walker estimates the total program will cost $200 million in 2019. Of that amount, $50 million would come from state dollars, and the federal government would cover the remaining $150 million.

WHA President/CEO Eric Borgerding said the time to act to reduce premium increases is now and that WHA was encouraged by the Governor’s proposal to create a reinsurance mechanism to stabilize insurance premiums.

“It seems increasingly unlikely Washington will act to either stabilize or offer an alternative to the Obamacare insurance markets. Rather than stand by and watch the piecemeal deconstruction of Obamacare unfold, WHA has called on the State to strike its own path as necessary, including taking steps to stabilize the individual health insurance market using the tools available to all states under the ACA,” Borgerding said in a statement released after the Governor’s address. “Currently, there are 11 insurers participating in the exchange market, four fewer than last year. The individual market experienced a 36 percent average increase in premiums in 2018. That cannot continue. We welcome opportunities to stabilize our markets and allow consumers to have affordable insurance choices.”

In his address to the state, the Governor also called on the Legislature to pass a law guaranteeing no one with pre-existing conditions is denied coverage.

“As the Governor noted in his State of the State speech, Wisconsin ranks first in the nation for quality, and according to the U.S. Census Bureau, the percentage of people with access to health coverage in Wisconsin is one of the best in the nation,” Borgerding said. “From day one of the ACA repeal and replace debate, sustaining Wisconsin’s coverage gains has been WHA’s top priority. We are looking forward to working with the Governor and the Legislature to ensure our health care system continues to be a national model for high quality, safety and coverage.”

Top of page (1/26/18)

Wisconsin Hospitals Take Measures to Conserve IV Solution

Hospitals coping with shortages to ensure patient care

This news release was shared with the statewide media February 2, 2018.

Wisconsin hospitals and health systems are taking steps to conserve their supply of IV solution as they cope with unprecedented shortages.

A majority of the hospitals and health systems in Wisconsin responding to a survey from the Wisconsin Hospital Association (WHA) this week, said they are proactively rationing intravenous (IV) solution to minimize the impact on their organizations. However, almost half of those hospitals say their conservation efforts are having a significant impact on staffing, scheduling or other operational issues. A few organizations reported they have come close to rescheduling procedures or sending patients to other facilities because they were so low on IV solution, but to date, no hospitals have had to transfer patients or postpone treatments. See data graphs.

“Wisconsin hospitals are known for delivering high-quality patient care and even in the face of this prolonged IV solution shortage, our patients are receiving top-notch, safe care,” according to Ann Zenk, RN, WHA vice president of workforce and clinical practice. “However, our clinicians have been forced to develop resource-intensive workarounds that reduce efficiency and increase health care costs.” 

Alternatives, such as utilizing a syringe to slowly provide the intravenous medication rather than mix it in a bag and hang it from a pole to drip through an IV line, are time consuming for physicians, pharmacists, nurses and patients. Zenk noted the workarounds can triple or quadruple the time needed to safely prescribe, dispense and administer the medication the patient needs.

The prolonged nature of the shortage, and the severe flu season, compound the issue. 

“It’s the domino effect,” Zenk said. “We started with IV solution shortages in small bags used to administer medication, and mitigation strategies cause increased use of syringes and larger volume IV bags, so we are now seeing shortages of those key supplies also.”

WHA is urging Wisconsin’s members of Congress to sign on to a letter initiated by the American Hospital Association that urges the Federal Drug Administration (FDA) to use “every authority at its disposal to address this crisis and present a plan to ensure immediate and sustained production of IV bags that also provides sufficient guidance to mitigate cost increases.”

The FDA recently announced it has taken steps to attempt to remedy this crisis by allowing the importation of saline products from other countries and by also approving new saline products. However, hospitals nationwide are concerned about the uncertainty of when these products will become available and when a long-term solution to this shortage will be implemented.

WHA is monitoring the situation with its member hospitals, the Wisconsin Department of Health Services Division of Public Health, the Wisconsin Healthcare Emergency Preparedness Program and the Division of Quality Assurance. 

Top of page (2/2/18)

NPR’s Mara Liasson to Keynote Advocacy Day 2018, March 21

Register today!

Each year, WHA’s Advocacy Day is one of the best ways hospital employees, trustees and volunteers can make an important, visible impact in the state capitol. Help make an impact in 2018 by registering today for 2018 Advocacy Day, set for March 21 at the Monona Terrace in Madison. Registration is open at

As always, Advocacy Day 2018 will have a great line up of speakers, including morning keynote Mara Liasson, national political correspondent for NPR. Her reports can be heard regularly on NPR’s award-winning newsmagazines, All Things Considered and Morning Edition. Liasson provides extensive coverage of politics and policy from Washington, D.C., focusing on the White House and Congress. As the 2018 Advocacy Day keynote speaker, Liasson will explore the current political climate and health policy, discuss what it means for America, and what impacts individuals, communities and health providers might expect during the next few years.

Join over 1,000 of your peers from across the state at Advocacy Day 2018 on March 21. More information and online registration are available at For registration questions, contact Kayla Chatterton at or 608-274-1820.

Top of page (2/2/18)

State Lawmakers Circulate Care Coordination Medicaid Pilot Legislation

Reps. Rodriguez, Sanfelippo and Sen. Darling see “promising results” in provider care coordination

Three Republican lawmakers circulated legislation January 16 to establish an intensive care coordination pilot program aimed at better managing care for Medicaid enrollees who frequent hospital emergency departments. The legislation, modeled closely after a WHA priority provision that was adopted in the Legislature’s version of the 2017-2019 biennial state budget, would provide a payment to hospitals and health systems that agree to provide a set of services to curb emergency department utilization to an identified population of Medicaid recipients.

“In partnership with the legislative authors of LRB 4332, Wisconsin’s hospitals and health systems are identifying a utilization and care management gap in our Medicaid program and developing a proactive solution to address that problem,” said WHA President/CEO Eric Borgerding and WHA Senior Vice President, Government Relations Kyle O’Brien in a January 17 memo to lawmakers in support of the legislation. “These types of innovative reforms from Wisconsin’s hospitals and health systems should come as no surprise, since Wisconsin consistently ranks as having the highest quality health care in the country and has led the nation in health care delivery reform.”

In a cosponsor memo to their colleagues, Rep. Jessie Rodriguez (R-Oak Creek), Rep. Joe Sanfelippo (R-New Berlin) and Sen. Alberta Darling (R-River Hills) said, “While hospitals continue to work proactively to hold the line on health care costs, inappropriate use of hospital emergency departments continues to be a cost driver in our state’s Medicaid program. While hospitals are not able to control who comes through their emergency room doors, hospitals in Wisconsin have developed models that have shown promising results in lowering inappropriate emergency department utilization by providing intensive care coordination services.”

According to the lawmakers, over 10,000 individuals statewide visited emergency departments (EDs) seven or more times in 2016, at an estimated cost of $53.5 million—a 36 percent increase since 2014.  This small population is commonly referred to as “high utilizers,” and accounted for over 111,000 ED encounters last year.

The three lawmakers pointed to existing intensive care coordination programs operated by Aurora Sinai, Aurora St. Luke’s and Wheaton St. Joseph’s hospitals in Milwaukee to reduce emergency department utilization through intensive care coordination services. The legislative authors said the bill is intended to, “provide support for hospitals to create new programs that would work for their unique populations and support further innovation and refinement of models currently in place.”

The legislation will be formally introduced shortly and likely receive a committee hearing in late January.

See more:
Proposed legislation
WHA memo
Legislators’ cosponsor memo

Top of page (1/19/18)

WHA Quality Forum Focuses on Engaging Physicians for Quality Improvement

On March 6, as part of the WHA Quality Forum, a series of day-long education events that address high-priority topics for hospital quality leaders, WHA is offering the session titled “Medical Staff Quality.”

“Medical Staff Quality” is the second session in WHA’s Quality Forum and will focus on key strategies for identifying, engaging and retaining physician champions for clinical quality improvement and performance management. Faculty includes Beth Dibbert, WHA chief quality officer; Bobby Redwood, MD, WHA physician improvement advisor; and Shelly Egstad, director of quality, risk and compliance for Tomah Memorial Hospital.

Throughout 2018, the WHA Quality Forum series will include topics such as survey readiness, meeting external reporting requirements and more. Presenters for each will share topic expertise and best practice applications.

Online registration and information on all WHA Quality Forum sessions can be found at Registration at each session will be limited, so those interested should register as soon as possible.

For registration questions, contact Kayla Chatterton at Contact Beth Dibbert at for questions about the content of these sessions.