Lampert Smith: Let jurors decide awards for pain

SUSAN LAMPERT SMITH Wisconsin State Journal
Contact Susan Lampert Smith at ssmith@madison.com or 252-6121.
MON., FEB 27, 2006 – 11:49 PM

How do you judge another’s pain?

Elizabeth Morrison has acute pain in both legs. She walks with a cane. Her left foot drags. Still, it’s a vast improvement from the day six years ago when she woke up from botched spinal surgery and couldn’t feel her feet. She was 44, and spent weeks in a hospital bed worrying that she’d have to go to a nursing home because her children wouldn’t be able to care for her.

In October, an Eau Claire jury awarded her $2.2 million; $775,000 of the total was for past and future pain. The rest is largely because Morrison is unable to work as a nurse because of her pain and the amount of pain medication she must take for it.

(Ironically, she once worked as a neuro-surgical nurse for the surgeon who later injured her. The surgeon, Thomas Rankin of Eau Claire, has since lost his license, not due to malpractice claims but because he lied on his license application by not disclosing previous tax and forgery convictions.)

Morrison, who now lives in Madison, was at the Capitol on Monday to testify against legislation (AB1073) that would put a $750,000 cap on pain and suffering awards from juries. (Earlier caps have been thrown out by the Wisconsin Supreme Court.) The Wisconsin Hospital Association and the Wisconsin Medical Society say the cap is needed to keep down malpractice insurance costs for doctors.

Morrison disagrees.

“I don’t for a minute believe this debate is about me getting a $2.2 million award,” said Morrison, who still hasn’t received any of the money. “I think it has more to do with insurance companies scaring people so they can make more money.”

Morrison’s side is bolstered by an Illinois group called Center for Justice and Democracy, which says that “the malpractice crisis is over” and that rates are no longer increasing due to a soft market in the insurance industry. They contend that rates rise not because of runaway jury awards but because insurance companies lose money on their other investments and make it up by hiking rates. They want insurance reform. Needless to say, Wisconsin Disability Rights is on this side, as are the trial lawyers.

Who’s right?

It’s a heavily lobbied issue, and every source has bias.

Here’s mine. You may have heard the radio ads in which a woman calls for a doctor’s appointment and learns that all her favorite doctors have left Wisconsin.

When I hear those ads, I picture a quiet girl who sat next to me in elementary school who was also named Susan. She married a Smith, so we had the same married names. I’m here to enjoy my children; she’s not. In 1996, a surgeon nicked her colon while doing laparoscopic surgery and she died of the infection. Her family got a $1.6 million award, but I’m sure they’d much rather have their wife and mother back.

So when I hear about doctors leaving Wisconsin, I sincerely hope the guy who killed her is among them.

And when it comes to judging another’s pain, I’d rather leave it up to a jury of 12 regular people than the Legislature.
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