Login Register Subscribe
Current Issue

Wisconsin med mal cap ruled unconstitutional


Wisconsin’s $750,000 cap on noneconomic medical malpractice damages is unconstitutional because it imposes an “unfair and illogical” burden on catastrophically injured patients, says a state appeals court in a ruling on a case where all four of a women’s limbs were amputated following inadequate treatment.

When Ascaris Mayo went to Columbia St. Mary’s Hospital in Milwaukee in May 2011 for abdominal pain and a high fever, she was told by medical personnel to follow up with her personal gynecologist about her history of uterine fibroids, according to the July 5 ruling by the Wisconsin Court of Appeals in Milwaukee in Ascaris Mayo and Antonio Mayo et al. v. Wisconsin Injured patients and Families Compensation Fund et al.

Ms. Mayo’s condition worsened, and the next day she visited a different emergency room where she was diagnosed with a septic infection caused by the untreated infection.

She went into a coma, and ultimately the septic infection caused nearly all of her other organs to fail and led to gangrene in her arms and legs, which necessitated their amputation.

Ms. Mayo and her husband filed suit against defendants including medical personnel and the Madison-based Wisconsin Injured Patients and Families Compensation Fund, charging medical malpractice and failure to provide proper informed consent.

A Milwaukee circuit court jury awarded Ms. Mayo $15 million in noneconomic damages and her husband $1.5 million. The fund appealed, seeking to reduce the Mayos’ jury award to the $750,000 cap on noneconomic damages under state law.

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

A three-judge state appeals court panel unanimously upheld the lower court’s ruling, although the majority opinion did so on different grounds.

The statutory cap on noneconomic damages is unconstitutional because “it 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 injured malpractice victims,” said the majority ruling.

“This cap denies equal protection to that class of malpractice victims whose adequate noneconomic damages a fact finder has determined are in excess of the cap,” the ruling said.

The concurring opinion states the justice disagrees with the majority opinion that the $750,000 cap is unconstitutional on its face. “However, because I agree with the trial court’s conclusion that (the state statute) is unconstitutional as applied in this case — an issue the majority decision did not reach — I concur in the result allowing the jury’s award of noneconomic damages to stand.”