(602) 271-9344

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.”

Ascaris Mayo’s doctors negligently failed to treat a septic infection resulting in the amputation of all four limbs.  The ER provider included infection in his differential diagnosis and admitted at trial that Mayo met the criteria for Systematic Inflammatory Response Syndrome; however, neither the MD or the PA 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 a septic infection from the untreated infection.  She became comatose and eventually became minimally responsive until she was transferred to another medical facility.  Ultimately, the sepsis caused nearly all of Mayo’s organs to fail and led to dry gangrene in all four of Mayo’s extremities, necessitating the amputation of all of Mayo’s extremities.

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. 

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 appeals court both declined to reduce the award.  The Court of Appeals noted the cap allows full awards for less severely injured patients but results in reduced awards for the catastrophically injured, which amounts to an equal protection violation.

Lawmakers included language with the cap that said it was designed to encourage doctors to practice in Wisconsin, contain health care costs by discouraging “defensive medicine” and providing certainty in damage awards as well as 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. 

After the Wisconsin Supreme Court struck down a lower cap, in 2005, the number of doctors participating in the compensation fund has increased every year and there’s 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, which would appear to 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 I have said in the past, medical malpractice lawsuits are not the problem–we need to hold dangerous doctors accountable for the injuries they case and fully and fairly compensate the victims of medical malpractice.

Share:Share on Facebook1Share on Google+0Tweet about this on TwitterShare on LinkedIn2Pin on Pinterest0

Joseph D'Aguanno

Leave a Reply

Your email address will not be published. Required fields are marked *

Social Media Auto Publish Powered By : XYZScripts.com