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18 July 2018

Wisconsin Supreme Court: Malpractice Damages Cap Is Constitutional

Wisconsin’s Supreme Court has upheld a cap on pain and suffering damages in medical malpractice lawsuits, overruling lower court decisions and a previous Supreme Court precedent in the case of a woman who lost her arms and legs to a botched sepsis diagnosis, the Milwaukee Journal Sentinel reports. Ascaris Mayo, the plaintiff in that case, will receive only $750,000 in noneconomic damages, despite being awarded $15 million by a Milwaukee jury in 2014.

Wisconsin High Court Refuses To Overturn Medical Malpractice Award Limits

Medical malpractice damages cap have become a contentious issue in many states in recent years. Over the last two years, judges in Florida and New Mexico have overturned damages caps as unconstitutional, ruling that, by severely limiting the compensation available to the most-injured malpractice victims, the arbitrary damage restriction violate equal protection principles. Wisconsin’s judiciary, however, feels taking similar measures would be judicial overreach.


Horrifying Tale Of Malpractice Ends In Disappointment

Ascaris and Antonio Mayo filed suit against a doctor, a physician’s assistant and Columbia St. Mary’s Hospital, pursuing millions of dollars in economic and noneconomic damages. Antonio Mayo had visited the hospital in 2011 with severe abdominal pain and fever.

Instead of being treated with antibiotics, Dr. Wyatt Jaffe and physician’s assistant Donald Gibson discharged the woman and told her to call her gynecologist. The next day, she went to a different hospital and received a correct diagnosis, but time had already run out. Sepsis, a life-threatening blood infection, ravaged her body.

She suffered multiple organ failure as gangrene ate away at her limbs, causing them to turn “hard, brittle and black,” her plaintiff’s attorney says. All four of her limbs were amputated.

Wisconsin Couple Won’t Receive Jury-Granted Damages Award

It’s a horrifying story, one that led a Milwaukee jury three years later to award Mayo and her husband a total of $25.3 million, including $16.5 million in noneconomic damages for pain and suffering and loss of companionship. But the Mayos will not receive the total award granted to them by that civil jury.

While around $9 million of the judgment have already been paid out to cover Mayo’s medical expenses, her noneconomic damage award has been pared down to just $750,000 due to a Wisconsin law that caps malpractice damages.

Court Can’t Overturn Legislature’s Policy Decisions, Wisconsin Chief Justice Says

In an opinion written for a 5-2 majority, Wisconsin Chief Justice Patience Roggensack says it’s not the Supreme Court’s job to second guess laws passed by Wisconsin’s legislature, according to ABC News. “By enacting the cap,” Judge Roggensack wrote, “the Legislature made a legitimate policy choice, knowing that there could be some harsh results for those who suffered medical malpractice and would not be able to recover the full amount of their noneconomic damages.”

Emotions shouldn’t come into the equation, Justice Roggensack continued, noting how sympathetic the Mayo family is as a family. But “were we to construe the cap based on our emotional response to her injury,” the Justice concluded, “we would be substituting our policy choice for that of the Legislature.”

Wisconsin Is No Friend To Malpractice Plaintiffs

Wisconsin’s unique legal landscape is one of the worst for medical malpractice plaintiffs, according to the Milwaukee Journal Sentinel. “State laws and court rulings,” writes Journal Sentinel reporter Cary Spivak, “have combined to erect roadblocks at the doors of Wisconsin courthouses, placing strict limits on who can sue for medical malpractice, how much money they can collect and where the money will come from.”

State Insurance Fund Balloons To $1.4 Billion

At the center of this architecture stands the Injured Patients and Families Compensation Fund, a state-run medical malpractice insurance fund fueled by dues paid by doctors and hospitals. Running on a massive surplus of $1 billion, the fund was designed, at least nominally, to compensate patients and their families for malpractice-related injuries. It’s there to pay out any malpractice verdicts or settlements that exceed $1 million.

But most of the $1.4 billion in the fund’s coffers aren’t being paid out to anyone. And the incentives created by the fund’s vast wealth are anything but plaintiff-friendly, attorneys in the State say. Because insurance companies are protected from any judgements above $1 million, they can dig in and fight every claim of malpractice tooth-and-nail, rather than coming to the negotiating table to find an acceptable resolution.

Attorneys Stop Taking Cases

Insurance companies in Wisconsin have “adopted a scorched-earth approach,” says Madison attorney Eric Farnsworth. Farnsworth is one of the only attorneys left in Wisconsin who’s still fighting malpractice cases. Most successful malpractice attorneys have taken their shingles down. “Who wants to tilt at windmills?” Charles Stierman, a Milwaukee-based lawyer, asks.

Wisconsin Supreme Court Overturns Prior Precedent

In concluding that Wisconsin’s damages cap is constitutional, the State’s Supreme Court is just propping up another bit of the legal structure that’s holding plaintiffs down. And it didn’t just overrule the judgment of the Wisconsin Court of Appeals, which made the opposite conclusion in July 2017.

It also overturned an earlier decision of the Supreme Court, in which former Chief Justice Shirley Abrahamson had struck down a similar damages cap of $350,000 as a violation of equal protection. That decision, the Ferdon decision, Roggensack writes, “erroneously invaded the province of the legislature and applied an erroneous standard of review.”

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