Some Malpractice Damages Capped at $750K by Wisconsin High Court

By TODD RICHMOND | June 28, 2018

The Wisconsin Supreme Court upheld the state’s cap on non-economic medical malpractice damages on Wednesday, reversing an appellate ruling that awarded $15 million to a woman who had all four limbs amputated after a mishandled infection.

The court ruled 5-2 in a long-running case closely watched by doctors, hospitals and the insurance industry. Chief Justice Patience Roggensack wrote that the cap doesn’t run afoul of equal protection guarantees and that the Legislature had a rational basis for setting it at $750,000. She noted that lawmakers argued the cap would keep health care affordable and provide reasonable compensation for injuries.

“By enacting the cap, 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 non-economic damages,” Roggensack wrote.

The ruling stems from a case involving Ascaris Mayo. According to court documents, doctors didn’t tell the mother of four she was suffering from a septic infection in 2011. She fell into a coma and her arms and legs had to be amputated after gangrene set in.

Mayo and her husband sued the doctors and the state malpractice compensation fund, an account doctors pay into to cover malpractice awards.

A jury awarded the couple $25.3 million, including $8.8 million in economic damages and $15 million in non-economic damages, money meant to compensate for pain, suffering, inconvenience and disfigurement.

The compensation fund provides unlimited coverage for economic damages but limits payouts for non-economic damages to $750,000. Thirty other states have similar caps on non-economic damages, according to the Wisconsin Medical Society.

The Mayos argued the cap is unconstitutional. A Milwaukee judge agreed, calling it unconstitutional in their case.

The 1st District Court of Appeals went further last year, finding the cap unconstitutional on its face. That court found the cap limits awards for the catastrophically injured, amounting to an equal protection violation. The court added that the cap doesn’t achieve any of the Legislature’s stated goals in adopting it.

The cap includes language stating it was designed to encourage doctors to practice in Wisconsin, hold down healthcare costs by discouraging “defensive medicine,” provide certainty and protect the compensation fund’s solvency.

Roggensack wrote that statutes can be found unconstitutional if lawmakers had no rational basis for enacting them. The Legislature had such a basis, she wrote, noting the fund was intended to curb rising health care costs by financing part of providers’ malpractice liability and encourage doctors to practice in the state.

As for the equal protection question, Roggensack said the cap is $750,000 for everyone, no matter their age, race or injury.

“Were we to construe the cap based on our emotional response to (Mayo’s) injury, we would be substituting our policy choice for that of the Legislature,” Roggensack wrote.

Liberal-leaning Justices Shirley Abrahamson and Ann Walsh Bradley dissented, saying the cap denies the catastrophically injured full damages.

The Mayos’ attorney, Dan Rottier, hasn’t responded to a message seeking comment.

Wisconsin Hospital Association President Eric Borgerding issued a statement praising the decision, saying the cap helps attract doctors to the state. The Wisconsin Medical Society also issued a statement calling the cap “integral to Wisconsin’s well-balanced medical liability system.”

The Physician Insurers Association of America filed a brief with the Supreme Court in January arguing the cap helps keep malpractice premiums down, in turn improving doctors’ access to insurance.

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