Wisconsin Justices OK Cap on Some Malpractice Damages

MADISON, Wis. (CN) – Reversing the Wisconsin Court of Appeals and dramatically slashing a $15 million jury award, the state’s highest court ruled Wednesday that a statutory $750,000 cap on noneconomic medical malpractice damages is constitutional.

The 5-2 ruling stems from a 2012 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 and her husband, represented by Daniel Rottier of Habush Habush, sued for medical malpractice and failure to provide proper informed consent. The jury found that neither the doctor nor his physician’s assistant 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 the loss of his wife’s companionship.

Noneconomic damages apply to pain and suffering and loss of companionship, as opposed to economic damages for medical expenses and loss of earnings. The jury also awarded the Mayos $8.8 million in economic damages.

After the verdict, one of the defendants – the Wisconsin Injured Patients and Families Compensation Fund, or WIPFC – filed a motion to reduce the jury award to the $750,000 statutory cap on noneconomic medical malpractice damages imposed by state law.

In response, the Mayos argued the application of the cap is facially unconstitutional and violates the equal protection rights of catastrophically injured patients because there is no basis linking the amount of the current damages cap to the Legislature’s purposes for enacting the cap.

The circuit court held that the cap was not facially unconstitutional but was unconstitutional as applied to the Mayos specifically.

The Wisconsin Court of Appeals also affirmed the noneconomic damages award but on the basis that it imposed an unfair burden solely on catastrophically injured patients in violation of equal protection laws.

But the Wisconsin Supreme Court reversed that decision Wednesday, finding the cap is constitutional facially and as applied to the Mayos. It remanded the case back to the circuit court to lower the noneconomic damages award to $750,000.

The decision was based in part on a Wisconsin State Assembly-appointed Medical Malpractice Task Force finding that “noneconomic damages are an aspect of recovery that often is based on emotion and not on any predictable standard.”

“The Mayos certainly are very sympathetic plaintiffs because of the severe injuries that Ascaris Mayo has suffered. However, were we to construe the cap based on our emotional response to her injury, we would be substituting our policy choice for that of the Legislature,” Chief Justice Patience Roggensack wrote in a 32-page majority opinion.

The court also found that its 2015 ruling in another case striking down a $350,000 damages cap wrongfully invaded the province of the Legislature and applied an improper standard of review.

Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, wrote a seven-page dissenting opinion, saying the noneconomic damages cap “singles out the most severely injured and treats them differently.”

“Under the majority’s analysis, the Mayos will receive merely five percent of what a jury assessed was due for their noneconomic damages, while those less severely injured will get 100 percent,” Bradley wrote. “It makes no sense that those who are injured most get the least. This senseless and unequal result is compounded by the lack of a rational basis for the cap, rendering it unconstitutional.”

Wisconsin Solicitor General Misha Tseytlin and Mayos’ attorney, Rottier, did not immediately respond Wednesday to email requests for comment on the ruling.

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