At the behest of the plaintiffs’ bar, a bill introduced in the Assembly this week would substantially limit a defendant’s attorney from determining whether a plaintiff’s injuries were the actual result of the accident caused by the defendant.

Below is a synopsis of AB 815. WCJC will provide timely updates of this bill.

Medical Examinations

The bill makes a number of changes to current law involving physical, mental, or vocational examinations when a plaintiff files a lawsuit against a defendant.

First, if a plaintiff raises an issue involving his/her mental or physical condition, the court may order the plaintiff to undergo only one physical, mental, or vocational examination, unless the defending party shows good cause for the plaintiff to undergo more than one examination.

Second, under this bill, the court order for an examination must do the following:

• Specify the time, place, manner, conditions, and scope of the examination, and identify who will conduct the examination.
• Prohibit the person conducting the examination from inquiring into the any issue relating to liability in the underlying action.
• Allow the plaintiff to record the examination electronically and have one or more witnesses present at the examination.
• Require the examination to be conducted within 100 miles of where the plaintiff lives, is employed, or transacts business.
• Require the defending party to pay the plaintiff’s expenses related to the examination, including traveling expenses, child care expenses, and a minimum $30 per hour.

Patient Records

The plaintiffs’ bar is also attempting to limit access by a defendant and his/her attorneys to a plaintiff’s medical records. The bill does the following:

• If a plaintiff seeks damages for personal injuries, a court may order the plaintiff to give the defending party, and any physician named in the order, permission to inspect any X-rays or hospital or medical records or reports that were taken in the course of diagnosing or treating the injuries for which the plaintiff seeks damages.
• If the defending party seeks additional discovery, the bill requires the defending party to prove, by clear, satisfactory, and convincing evidence to a reasonable certainty, that the additional discovery is essential to the defense relating to the cause of the plaintiff’s injuries and that the discovery relates to a pre-existing condition that is at least substantially similar to the injuries for which the plaintiff seeks damages.
• Also requires the defending party to give a copy of any report that is made pursuant to an examination or inspection within 15 days after the examination or inspection takes place to the plaintiff.
• The bill also provides that a plaintiff may introduce evidence obtained from the examination or inspection, regardless of whether the defending party seeks to introduce the evidence.

The Assembly Committee on Labor on Wednesday, March 10 (10:00 a.m.) will hold a public hearing on AB 792, relating to false claims submitted to state and local governments.

WCJC opposes AB 792 because it encourages abusive litigation by providing incentives for plaintiffs’ attorneys to bring lawsuits on behalf of the state. WCJC further opposes AB 792 because it is unnecessary – existing laws provide meaningful avenues for the state to prosecute those who file false claims.

False claims (also known as qui tam) laws are a favorite tool of plaintiffs’ lawyers to sue, on behalf of the state, companies that allegedly commit fraud by submitting false claims for payment. These laws essentially turn private individuals into bounty hunters for the state, often with multi-million dollar rewards.

AB 792’s companion bill (SB 447) is currently in the Joint Finance Committee.

Assembly Committee on Labor Public Hearing

Wednesday, March 10
10:05 AM
225 Northwest
State Capitol

The Senate Committee on Labor, Elections and Urban Affairs is holding a public hearing tomorrow (Dec. 15) on Senate Bill 275, prohibiting employment discrimination based on credit history. If enacted, SB 275 would subject employers to significant punitive and compensatory damages. Therefore, WCJC is opposes the bill.

Background

The Legislature this year significantly amended the Wisconsin Fair Employment Law (WFEL) (Wis. §§ 111.31 – 111.395) when it enacted 2009 WI Act 20. That law added punitive and compensatory damages for violations of the WFEL. Prior to enactment of Act 20, the WFEL allowed an employee who was discriminated against to seek reinstatement, back pay, attorneys’ fees, and costs, but did not allow an employee to sue for punitive and compensatory damages. Under the new law, punitive and compensatory damages range between $50,000 and $300,000, depending on the number of people employed by the business.

SB 275/AB 367

SB 275/AB 367 would prohibit employment discrimination based on credit history under Wisconsin’s WFEL. The bill provides a narrow exception where circumstances of an individual’s credit history are “substantially related to the circumstances of a particular job or licensed activity.”

Thus, if SB 275 (or AB 367) is enacted, an employer would be subjected to potentially significant punitive and compensatory damages by simply obtaining a job applicant’s credit history. In fact, as currently written, valuable tools for screening potential employees such as salary and employment verification could subject an employer to penalties under the bill.

Wisconsin would join just three other states that have adopted similar legislation, and would have the dubious distinction of having the most stringent penalties in the nation.

In its testimony, WCJC will argue that the Legislature should not burden Wisconsin businesses with greater civil liability, especially during this economic downturn.

SB 275’s companion bill (AB 367) already received a public hearing in the Assembly and passed out of committee on a party-line vote.

The Wisconsin Senate will vote on Tuesday (Oct. 27) on legislation that will drive up health care costs by expanding medical liability. Senate Bill 203 allows “loss of society and companionship” damages for adult children and their parents in medical malpractice cases.

To see read WCJC’s full press release, read here.

As the debate over health care reform continues in Washington, the issue of medical liability is also gaining quite a bit of attention.

That’s because the Congressional Budget Office, the non-partisan research arm of Congress, issued an analysis of proposals aimed at limiting costs to related to medical malpractice liability. The CBO found that by implementing certain medical liability measures, federal spending would be reduced by $41 billion over ten years and reduce the federal deficit by $54 billion.

In addition to the CBO’s finding, the Pacific Research Institute released a study regarding the costs of medical malpractice liability. According to the study, medical malpractice tort losses totaled $5.894 billion in 2008. For more information on the costs associated with medical liability lawsuits, please visit the Pacific Research Institute’s Website.

A legal publication recently noted the efforts in Wisconsin to defeat a number of provisions that would have greatly expanded liability and increased litigation. Read the rest of this entry »

On Thursday, August 27 (10:00 a.m. – 415 NW, State Capitol) the Assembly Committee on Workforce Development will hold a public hearing on Assembly Bill 367. Read the rest of this entry »

According to PointofLaw.com, plaintiffs’ attorneys are seeking a $1.6 billion federal tax break for contingent-fee lawyers that would allow them deduct expenses as made, rather than in the year of settling a suit. Read the rest of this entry »

The Wisconsin Supreme Court today in a 6-0 opinion (Justice Annette Zielger did not participate) reversed a lower court decision that dismissed a medical malpractice claim against an emergency room physician. Read the rest of this entry »

In another decision handed down on July 17, the Wisconsin Supreme Court ruled (5-2) ruled that the Wisconsin Family or Medical Leave Act (WFMLA) does not grant a right to jury civil trial in an action to recover damages. Read the rest of this entry »