Medical-Malpractice Cases, 1995-96 through 2014-15

Whenever I have the means to do so, I am happy to explore issues recommended by others, which includes the subject of today’s post, suggested by a reader who prefers to remain anonymous.  The topic is medical-malpractice (med-mal) cases, a category that attracts headlines from time to time and can be isolated fairly easily from among the decisions on the court’s website.[1]

Most readers would likely predict that liberal justices side more frequently with med-mal plaintiffs than do conservative justices, as indeed they have.  According to the following table, the current court’s two most liberal justices (Abrahamson and Bradley) accepted plaintiffs’ arguments more often than not, while Justices Roggensack and Ziegler rejected them in all but approximately 15% of the cases they heard.

(Two side notes:  On any issue it is surprising to encounter such a gap between Justice Gableman’s voting record and those of Justices Roggensack and Ziegler.  It will be interesting to see if the disparity remains as Justice Gableman participates in more med-mal decisions, and the sample size expands.  The table also indicates, with a much larger sample of votes, that the late Justice Crooks sided frequently with Justices Abrahamson and Bradley in med-mal cases—more often than in any other category of case covered so far by SCOWstats.)

Percentage of Med-Mal Cases in which Individual Justices Favored the Arguments Presented by Plaintiffs, 1995-96 through 2014-15

Butler                 8/11=73%
Abrahamson   25/37=68%
Bradley             20/34=59%
Crooks              20/36=56%
Bablitch             8/16=50%
Gableman         2/6=33%
Prosser              9/32=28%
Sykes                  3/11=27%
Wilcox               7/28=25%
Roggensack      3/20=15%
Ziegler                1/7=14%

One might also expect that the conservative court of 2008-09 through 2014-15 (when the court’s composition remained unchanged, and all of the justices except for the late Justice Crooks are still on the bench) would rule more frequently against med-mal plaintiffs than did the court over the previous thirteen terms.  Such has not been the case, however, for the justices decided in favor of med-mal plaintiffs at an almost identical rate during the period 2008-09 through 2014-15 as they did on average from 1995-96 through 2007-08—essentially 50% of the time in both intervals.  Moreover, if we consider the terms prior to Justice Butler’s arrival on the bench in 2004-05, we find that the court ruled in favor of med-mal plaintiffs only 39% of the time—less often than did the more conservative court that took shape a few years later.  It requires the addition of the four “Butler terms” (2004-05 through 2007-08) to bring the favorable-ruling rate up to 48% for the entire period from 1995-96 through 2007-08.[2]

Over the past seven terms, the court’s most striking departure from its practice in the previous period pertains not to the percentage of favorable rulings but to the number of med-mal cases accepted for review.  From 1995-96 through 2007-08 the court heard close to three times as many med-mal cases per term as it did in the seven terms thereafter.  In fact, from 2008-09 through 2014-15, the court averaged less than a single med-mal decision per term (6 cases in seven terms, or 0.86 cases per term)—compared to an average of 2.38 med-mal cases per term in the earlier period.[3]

Any explanation for the decline must acknowledge the sharp drop in the number of med-mal lawsuits initiated across Wisconsin.  Whichever factors may be responsible for this development—award caps, the massive state-run malpractice fund, or more careful health-care professionals—it stands to reason that fewer cases entering the system would result in fewer petitions for review reaching the supreme court.[4]  And, indeed, fewer med-mal petitions for review have been filed of late—only 30 petitions over the entire seven terms from 2008-09 through 2014-15, an average of 4.3 petitions per term.  This is not even half the average of 9.8 petitions per term yielded by the 127 med-mal petitions filed from 1995-96 through 2007-08.

However, it is not just a matter of fewer petitions reaching the justices.  They have been rejecting the petitions that do reach them at a higher rate than previously.  This may be the most noteworthy aspect of the data.  Of the 30 med-mal petitions for review filed from 2008-09 through 2014-15, only 13% (4/30) were granted—scarcely more than half the acceptance rate of 24% (31/127) for the preceding period.[5]

Thus, two conclusions seem warranted for med-mal plaintiffs—good news and bad news, as it were.  They have retained nearly the same odds of winning their cases in the conservative supreme court of recent years as they did on average over the previous thirteen terms.  However, they have also found it a good deal more difficult to persuade the current justices to admit them to the courtroom in the first place.


[1] I searched the decisions for such phrases as “medical malpractice,” “informed consent,” and “Chapter 655” as well as numbers that would turn up references to specific statutes and codes: including 448.30, 655.015, 655.017, 655.27, 893.55, and 17.26.  I then weeded out cases in which med-mal issues were absent altogether or, at any rate, not the issues on which the decisions hinged.  Also excluded were a couple of cases in which the outcomes did not clearly favor the plaintiff or the defendant.

[2] Three of six decisions favored med-mal plaintiffs in 2008-09 through 2014-15, compared to 15 of 31 decisions during the 13 preceding terms—including eight of 13 decisions from the “Butler terms.”  It may be of interest that of the 18 decisions favoring med-mal plaintiffs, 14 were reversals.

[3] From 1995-96 through 2003-04, the court averaged 2 med-mal cases per term.  During the four “Butler terms” that followed, the average climbed to 3.25 cases per term—resulting in the average of 2.38 cases per term from 1995-96 through 2007-08 (31 cases over 13 terms).

[4] For details on the declining number of med-mal lawsuits filed in the state, see “Medical malpractice lawsuits plummet in Wisconsin” from the Milwaukee Journal Sentinel.  It is also worth noting that the overall volume of cases heard by the Wisconsin Supreme Court has declined over the past decade or so.  See Graph 2 in the SCOWstats post “Concurrences, Dissents, and Efficiency.”

[5] I am most grateful to Diane Fremgen, Clerk of the Supreme Court and Court of Appeals, for taking the time to furnish me with data pertaining to petitions for review.  Needless to say, I could not have completed this portion of the post without her assistance.  The data cover petitions for review in all cases with codes 30103 (“Medical Malpractice—Other”) and 30104 (“Medical Malpractice—Ch. 655”).  On occasion, a petition was filed in one term and decided in the following term, but adjustment for this fact does not alter the percentages presented above.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 91 years.

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