Legislative Update

WDC Journal Edition: May 2002
By: Jim Hough

The 2001-02 Regular Session of the Wisconsin Legislature has concluded. With a split (Democrats in control in the Senate and Republicans in the Assembly) legislature, and other distractions, the most apt description of the past session is gridlock. The Legislature does remain in Special Session to deal with the $1.1+ billion deficit. We don't expect consideration of any matters affecting the civil justice system. There has, however, been a proposal to expand the sales tax to services not now covered, including legal services. CTCW has many allies in opposing the sales tax expansion and we do not expect it to be adopted.

While there were numerous other bills that were identified and monitored by CTCW, the following represent the most significant proposals and those in which CTCW played an active role.

  • Assembly Bill 198-compulsory counterclaims in civil actions. This proposal was being promoted by the State Bar as responding to a Supreme Court case [A.B.C.G. Enterprises, Inc. v. Firstbank Southeast, 184 Wis. 2d 465 (1994)] which mandated that certain counterclaims be made despite the existence of a permissive counterclaim statute. CTCW opposed the bill as creating malpractice or ethical traps for our members and the potential for raising additional conflicts within the tripartite relationship. The bill was not passed. We realize that the State Bar proposal was well intended and we have discussed our concerns with the State Bar and have agreed to work together on a solution for next session.
  • Senate Bill 193-loss of society and companionship in medical malpractice cases.This bill would have expanded those eligible to recover to adult children and their parents. CTCW opposed the bill as a further expansion of a legislatively created theory of recovery that had no basis in common law. Loss of society and companionship is impossible to measure in monetary terms and should not be expanded beyond current law. Senate Bill 193 passed the Senate on a 17-15 vote but was never reported out of committee in the Assembly. A companion bill, AB 638, was introduced in the Assembly but did not even receive a public hearing.
  • Senate Bill 232-compensatory and punitive damages in fair employment cases. This proposal appeared to mandate the award of compensatory damages by a hearing examiner in discrimination cases and also provided for punitive damages. Punitive damages are not defined in this proposal as they are elsewhere in the statutes and there are no protections for judicial proceedings. This bill also died with the end of the session.
  • Senate Bill 71-cost of medical records. This bill, which was supported by CTCW, was aimed at assuring "reasonable cost" of health care records. This bill was also supported by WATL, the State Bar and the Wisconsin Insurance Alliance. The provisions of this bill were adopted as part of the biennial budget bill but were vetoed by the Governor. Senate Bill 71 passed the Senate but was never voted on in the Assembly and will have to await another day.
  • Senate Bill 186-service of health care records.This proposal would have reduced from 40 to 20, the number of days before a trial or a hearing in which a party must serve health care records or notify the other parties of the location of the records for inspection or photocopy. CTCW opposed. The bill died.

Please see the CTCW tracking report (www.ctcw.org/ctcw_legislative.html) for additional history on these bills and a summary of other bills monitored on behalf of your organization.