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Damage Caps Unconstitutional – Wisconsin

We are happy to share the news that the 1st District Court of Appeals in Wisconsin ruled that a cap on noneconomic damages in medical malpractice cases is unconstitutional because “it imposes an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws.”

Medical malpractice case at the heart of the ruling

Ascaris Mayo’s doctors negligently failed to treat a septic infection resulting in the amputation of all four limbs. The emergency room provider included infection in his differential diagnosis and admitted at trial that Mayo met the criteria for Systematic Inflammatory Response Syndrome. However, neither the doctor nor the physician assistant told Mayo about the diagnosis or the available treatment. Instead, Mayo was told to follow up with her personal gynecologist for her history of uterine fibroids. She developed sepsis from the untreated infection. Mayo was transferred to another medical facility after she became comatose. Ultimately, the sepsis caused nearly all of Mayo’s organs to fail and led to dry gangrene in all four of her extremities. The necessary treatment at that point was amputation.

This sad story had a somewhat happy ending when a jury held the negligent health care providers accountable.  The jury awarded $25.3 million in damages, including $15 million in noneconomic damages and $1.5 million for her husband’s loss of companionship.

Damage caps stopped by constitutional roadblock

Defense lawyers moved to reduce the noneconomic damages award to $750,000, the maximum compensation for such damages allowed under state law.

The Milwaukee County judge and the appellate court both declined to reduce the award. The Court of Appeals noted that the cap allows full awards for less severely injured patients but results in reduced awards for the catastrophically injured. Their opinions were clear; this amounted to an equal protection violation.

Lawmakers included language with the cap that made their intentions clear. They expected the law to encourage doctors to practice medicine in Wisconsin, contain health care costs by discouraging “defensive medicine,” and provide certainty in damage awards. They also believed the law would protect the solvency of the state compensation fund. However, the Court of Appeals noted the cap doesn’t achieve any of the Legislature’s stated goals in adopting it.

In 2005, the Wisconsin Supreme Court struck down a lower cap. As a result, the number of doctors participating in the compensation fund has increased every year. There is no data indicating a cap has any effect on physician retention anywhere. Doctors don’t face any personal liability thanks to the state compensation fund. Little or no doctor liability should eliminate the need for defensive medicine. Also, medical malpractice claims against the fund have decreased since 2005. “We are left with literally no rational factual basis in the record before us which supports the legislature’s determination that the $750,000 limitation on noneconomic damages is necessary or appropriate to promote any of the stated legislative objectives.”

This goes along with what we have said in the past: medical malpractice lawsuits are not the problem. We need to hold dangerous doctors accountable for the injuries they cause. Most importantly, victims of medical malpractice must be fully and fairly compensated.