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Frequently Asked Questions
It depends. For End, Hierseman & Crain to represent your interests, we must thoroughly investigate your medical records, your injury, the potential compensation, and the cost of pursuing the case. Following that, if we believe your case has merit, we will attempt to find one or more expert physicians to review your case. The number of expert physicians depends upon the complexity of your case. If the expert(s) believe that the doctor(s) or other health care professional(s) treating you violated the standard of care and that violation caused you substantial harm, we can pursue a case on your behalf. If an expert physician does not support your case, we will explain the reasons for the expert physician's opinion and decline further representation of your claim.
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The legislature has imposed time limits associated with malpractice claims. Generally, the time limit for pursuing a claim is 3 years from the date of injury. In medical negligence cases, however, the date of injury is not always easily determined. The date of injury may be when substantial injury is discovered or it may be at the end of a long course of negligent treatment. Children injured before age 7 have until their 10th birthday to bring a claim. After age 7, the time limit for kids is also 3 years from the date of injury.
There are special rules that apply to claims against Governmental (State or Local Government) Employees and Federal Employees. These time limits and rules can be explained further in consultation with our firm.
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Yes. On March 22, 2006, a law was passed which placed a monetary limit of $750,000 on medical malpractice non-economic damages (damages for pain, suffering, emotional distress, disfigurement, or loss of society and companionship). This damage limit does not apply to medical negligence cases which occurred prior to April 6, 2006. This damage limit also does not apply if you are injured in a setting that does not involve health care providers. In that case, no limit applies to the amount of damages which you can recover. There is no limit on the amount of monetary recovery for economic damages (wage loss, medical expenses, and other tangible expenses) in medical negligence or other personal injury cases.
In cases involving the death of a loved one, the damages are also limited. In a wrongful death case due to medical malpractice, damages are limited in two respects: a monetary limit is placed on the amount of damages which can be recovered; and a limit is placed on who is allowed to bring a claim for damages. The damages for post-death loss of society and companionship are limited to $350,000 for a deceased adult and to $500,000 for a deceased child. The damages for pre-death loss of society and companionship and for pre-death pain and suffering are limited to $750,000. In wrongful death cases due to medical negligence, only certain persons are allowed to make a claim for post-death loss of society and companionship. In the case of a deceased minor child, only the child's parents and minor siblings can file a claim. In the case of a deceased adult, only a spouse or minor children can bring a claim.
In cases involving the wrongful death of an adult or minor child which does not involve medical negligence, the $350,000/$500,000 cap still applies to post-death loss of society and companionship claims. However, there is no monetary limit placed on pre-death loss of society and companionship claims or on pre-death pain and suffering claims. Also, the limits regarding who can bring a claim do not exist if the case is not related to medical negligence.
*Lower monetary damage limits apply to claims against State employees or local governmental entities and employees.
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Question: My insurance company (or Medicare or Title XIX) paid my medical bills, and/or short or long term disability benefits, do they get paid back?
If you receive compensation related to your injury, part of that money must be used to pay back the insurance companies who paid benefits to you or on your behalf as a result of the negligence. This reimbursement ensures that the negligent party is responsible for monetary expenses due to his or her negligence, rather than taxpayers or those who pay premiums. We do not charge a fee for medical expenses or other insurance benefits awarded. The insurance companies who provided benefits to you or on your behalf will have their own lawyers representing their interests.
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Question: I have heard that I do not pay attorney fees if I do not win. Is pursuit of a case risk-free for me?
No. It is true that most people hire End, Hierseman & Crain to handle their case on a contingency fee basis. (There is an option to hire us on an hourly basis.). A contingency fee means that End, Hierseman & Crain will only recover an attorney's fee if you receive compensation for your injury. This fee arrangement is structured by Wisconsin law.
In order to pursue your case, End, Hierseman & Crain will spend money to accumulate records, hire experts, and prepare the case for trial. These expenses can be substantial. You are obligated to reimburse our firm for those expenses, whether we recover money for you or not. End, Hierseman & Crain will keep you advised of the expense incurred in the case and will work with you to make payments if you do not receive compensation for your injury.
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Question: I have heard that you can force settlement by filing a lawsuit. Don’t most cases settle out of court?
Some cases do settle, but many do not. In the year 2003, 81 people were compensated for medical malpractice that took place in Wisconsin, but only 4 of those cases went to trial. Insurance companies frequently push cases to trial because they know the injured plaintiff often will be forced to dismiss his or her case because they cannot afford the costs associated with trying the case. Insurance companies also know that jurors often side with the doctor out of the mistaken belief that malpractice cases are increasing the cost of health care in the nation. Also, insurance companies know that even if they go to trial and lose, their monetary liability is limited. In Wisconsin, health care providers only need to carry $1 million in insurance coverage. Any award above that figure is covered by the Injured Patients and Families Compensation Fund. That means that in most cases, the insurance company will force a trial because it knows that the worst case scenario means it will pay a maximum of $1 million, no matter how devastating the injury.
At End, Hierseman & Crain we know the insurance companies’ strategies and are equipped to fight them. We do not, however, fight them foolishly or on “principle.” We will only take your case to court if we believe it has strong merit.
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Please give us a call. You will speak to one of our professional staff to discuss the facts of your case. You can also submit your information on the Submit a Question page of our website. One of our attorneys will review the information you have given and decide if your case warrants further investigation. If we believe your case warrants further investigation, we will accommodate you and arrange a no obligation consultation at your convenience.
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- Fewer than one-half of 1% of the nation’s doctors face any serious state sanctions each year. In 1999, 2,696 total serious disciplinary actions were taken by state medical boards. This is a pittance compared to the volume of injury and death of patients caused by negligence of doctors. A recent study by the Institute of Medicine of the National Academy of Sciences estimated that as many as 98,000 patients may be killed each year in hospitals alone as a result of medical errors. Earlier studies also found that this was a serious national problem.
- Harvard researchers found that 1% of a representative sample of patients treated in New York state hospitals in 1984 were injured, and one-quarter of those died, because of medical negligence. Nationwide, that would have translated into 234,000 injuries and 80,000 deaths in 1988 from negligence in American hospitals. Most of this involves physicians. There is no clear evidence that there has been significant improvement since then.
- A similar study conducted in California in 1974 found that 0.8% of hospital patients had either been injured by negligence in the hospital or had been hospitalized because of negligent care. Extrapolation of those findings would have yielded an estimate of 249,000 injuries and deaths from negligent medical practice in 1988.
- In 1976, the HEW Malpractice Commission estimated similarly that one-half of 1% of all patients entering hospitals are injured there due to negligence. That estimate would have indicated 156,000 injuries and deaths resulting from doctor negligence in 1988.
- Expanding these estimates to include general medical practice outside of a hospital, the potential abuse by physicians is even greater. An in-depth interview with 53 family physicians revealed that 47% of the doctors recalled a case in which the patient died due to physician error. Only four of the total reported errors led to malpractice suits, and none of these errors resulted in an action by a peer review organization.
- Medical students at SUNY-Buffalo were asked to recall incidents during their clinical training that raised ethical concerns. More than 200 students responded (40% of total sample); the majority of instances they reported (60%) did not in the researchers’ opinions threaten the patient’s life, health or welfare. This, however, implies that potentially 40% did.
- It is not unreasonable to estimate that at least 1 percent of doctors in this country deserve some serious disciplinary action each year. This would amount to 7,703 physicians being disciplined each year, a number that, unfortunately far exceeds the actual number of physicians disciplined.
- Sexual abuse of or sexual misconduct with a patient is also a serious issue. Six to ten percent of psychiatrists surveyed confessed to having engaged in sexual contact with a patient and in a longitudinal study.
- Two studies surveyed residents to determine the incidence of substance use. Recent alcohol use was extremely high in both groups (87% within the last year for emergency medicine residents; 74% within the past 30 days for surgery residents).Additional findings proved extremely disturbing; although the emergency medicine program directors accurately determined the incidence of alcohol use amongst residents, they dramatically underestimated the percent who were actually impaired by the substance as indicated by diagnostic tests (1% estimate impaired vs. 13% diagnosed.)
- This does not bode well for creating a medical system that prevents mishaps before they occur. And although the surgery residents reported negligible recent cocaine use, when employed, the drug was typically obtained from the hospital supply, indicating a greater ease of access than for the general population.
- Excessive work hours of residents. Their longest period without sleep during their first year of residency was an average of 37.6 hours (standard deviation (SD) 9.9). During a typical work week, they worked an average of 56.9 total hours (SD 30.19) in on-call shifts (as distinguished from the total average number of hours they worked per week). An on-call shift is a continuous shift at the hospital allowing for little to no sleep; two on-call shifts are typically scheduled per week.
25% reported being on-call in the hospital a total of over 80 hours per week. Surgeons reported the highest average hours of on-call time per week (72.5). On a scale of 0 (never) to 4 (almost daily), residents most frequently gave a response of 3 for the amount of sleep deprivation experienced during the first year. Over 10% of residents indicated sleep deprivation was an “almost daily” occurrence.
- Just 5.1 percent of doctors account for 54.2 percent of the malpractice payouts, according to data from the National Practitioner Data Bank. Of the 35,000 doctors who have had two or more malpractice payouts since 1990, only 7.6 percent of them have been disciplined. And only 13 percent of doctors with five medical malpractice payouts have been disciplined.
- Between 44,000 and 98,000 people die in hospitals annually each year due to preventable medical errors, the Institute of Medicine found. A survey of doctors and other adults released in December in the New England Journal of Medicine found that more than a third of the doctors said they or their family members had experienced medical errors, most leading to serious health consequences. The cost to society in terms of disability and health care costs, lost income, lost household production and the personal costs of care are estimated to be between $17 billion and $29 billion. In contrast, the medical liability system costs $6.7 billion annually, about what is spent on dog food each year.
- There is no growth in the number of new medical malpractice claims. According to the National Association of Insurance Commissioners, the number of new medical malpractice claims declined by about four percent between 1995 and 2000. There were 90,212 claims filed in 1995; 84,741 in 1996; 85,613 in 1997; 86,211 in 1998; 89,311 in 1999; and 86,480 in 2000.
While medical costs have increased by 113 percent since 1987, the amount spent on medical malpractice insurance has increased by just 52 percent over that time. Insurance companies are raising rates because of poor returns on their investments, not because of increased litigation or jury awards, according to J. Robert Hunter, director of insurance for the Consumer Federation of America. Recent premiums were artificially low.
Malpractice insurance costs amount to only 3.2 percent of the average physician’s revenues.
Few medical errors ever result in legal claims. Only one malpractice claim is made for every 7.6 hospital injuries, according to a Harvard study. Further, plaintiffs drop 10 times more claims than they pursue, according to Physician Insurer Association of America data.
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