Wisconsin Court Tosses Cap on Medical Malpractice Damages

MADISON, Wis. (CN) – A Wisconsin appeals court ruled Wednesday that the state’s $750,000 cap on medical malpractice damages is unconstitutional because it imposes an unequal disadvantage for catastrophically injured patients.

“We conclude that the statutory cap on noneconomic damages is unconstitutional on its face because it … [imposes] an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws,” the ruling states. “We conclude that because Wisconsin’s cap on noneconomic medical malpractice damages always reduces noneconomic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims, this cap denies equal protection to that class of malpractice victims whose adequate noneconomic damages a factfinder has determined are in excess of the cap.” (Emphasis in original.)

Wednesday’s Wisconsin Court of Appeals ruling stems from a case filed by Ascaris Mayo, whose four limbs developed gangrene and had to be amputated after doctors failed to diagnose her with a septic infection.

Mayo went to the emergency room of Columbia St. Mary’s Hospital in Milwaukee in May 2011 complaining of abdominal pain and a high fever. She was seen by Dr. Wyatt Jaffe and a physician’s assistant, Donald Gibson, who “included infection in his differential diagnosis and admitted at trial that Mayo met the criteria for Systematic Inflammatory Response Syndrome,” according to court records.

But Mayo wasn’t told about the diagnosis or available treatment, such as antibiotics. Instead, she was told to consult with her gynecologist about her history of uterine fibroids, court records show.

Her condition worsened and she went to another emergency room the next day, where she was diagnosed with septic infection caused by the earlier untreated infection.

Mayo went into a coma and nearly all of her organs failed, causing dry gangrene in her arms and legs, which had to be amputated.

Mayo and her husband sued Dr. Jaffe, Gibson, Infinity Health Care Inc., ProAssurance Wisconsin Insurance Company and the Wisconsin Injured Patients and Families Compensation Fund, or WIPFC, for medical malpractice and failure to provide proper informed consent.

The jury found that neither Jaffe nor Gibson was negligent but that both failed to provide Mayo with proper informed consent about her diagnosis and treatment choices.

She was awarded $15 million in noneconomic damages and her husband received $1.5 million for loss of the society and companionship of his wife.

After the verdict, the WIPFC filed a motion to reduce the jury award to the $750,000 statutory cap on noneconomic damages imposed by state law.

The Mayos responded by moving for entry of judgment on the verdict on the grounds that the application of the cap would violate their constitutional rights.

They claimed Wis. Stat. § 893.55 is facially unconstitutional because it violates the equal protection rights of catastrophically injured patients, specifically arguing that there is no rational basis linking the amount of the current noneconomic damages cap to the Legislature’s purposes for enacting the cap.

The circuit court ruled that the cap was not facially unconstitutional but that it was unconstitutional specifically as applied to the Mayos because it violated their right to equal protection and due process.

The court ruled that: application of the cap would reduce the Mayos’ jury award by 95 percent; there is no rational basis to deprive Mayo of the money the jury found necessary to compensate her for her injuries; reducing the jury award wouldn’t further the cap’s purpose of balancing affordable healthcare with adequate compensation to malpractice victims; WIPFC could afford to pay the award; and applying the cap in Mayo’s case would not service the legislative purpose of “policing high or unpredictable economic damage awards.”

On Wednesday, the Wisconsin Court of Appeals affirmed the lower court’s decision.

Judge Joan Kessler, writing for a unanimous three-judge panel, called the state’s cap on noneconomic damages for medical malpractice arbitrary.

“Here, the $750,000 cap on noneconomic damages has the practical effect of imposing devastating costs only on the few who sustain the greatest damages and creates a class of catastrophically injured victims who are denied the adequate compensation awarded by a jury, while the less severely injured malpractice victims are awarded their full compensation,” Kessler wrote.

The judge added, “We are not concluding that all caps on noneconomic damages are unconstitutional. We can only conclude that the amount of this cap was arbitrarily selected because, based on the record before us, it is unrelated factually to the goals of the statute of which it is a part.”

The Wisconsin Medical Society released a statement condemning the appeals court’s decision.

“The decision invalidates a key component of Wisconsin’s comprehensive medical liability system, which protects the ability of injured patients to recover damages due to medical negligence while helping control health care costs and protecting access to care for all Wisconsin citizens,” the group said.

The WIPFC did not immediately respond to an email request for comment sent Thursday.

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