Courts Decide Wisconsin’s Medical Malpractice Awards Are Unconstitutional


Wisconsin’s $750,000 cap on medical malpractice claims was deemed unconstitutional by an appellate court stating a woman who lost all four limbs and her husband from Milwaukee should be awarded a sum of $16.5 million for their pain and suffering.

“We conclude that the statutory cap on non-economic damages is unconstitutional on its face,” said Judge Joan Kessler in a 19-page unanimous opinion written by the three-judge First District Court of Appeals panel.

Kessler continues by saying “Wisconsin’s cap on non-economic medical malpractice damages always reduces non-economic 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 severely injured malpractice victims.”

In 2011 a 57 year old woman, Ascaris Mayo went into septic shock as a result of an untreated Strep A infection, the same infection that causes strep throat. All four limbs had to be amputated due to the infection. The appeal involves her award of $25.3 million from her medical malpractice case.

The case is suppose to be go to the state Supreme Court to be appealed.

Dan Rottier, the attorney representing Mayo and her husband, Antonio, stated the $8.8 million awarded for economic damages would be set aside for any previous of forthcoming expenses. “That’s not putting money back into her pocket,” said their attorney.

According to Rottier if the Supreme Court were to overturn the decision and the cap remained the same at $750,000 the Mayos would not receive enough money for their pain and suffering, economic damages, and expenses incurred by the legal case. Attorney’s fees are also cap in medical mal practice cases at one third of the first million plus 20 % of the remaining award.

The appellate court from Milwaukee struck down the full cap and went beyond Milwaukee County Circuit Judge Jeffrey Conen, who did not declare the cap unconstitutional instead he claimed it was unconstitutional when in regards to the Mayo trial.

Since 1986 Wisconsin has had many caps on medical malpractice damages. In 1995 a cap was enacted for $350,000 but was replaced in 2005 by a cap of $750,000 due to being arbitrary and a violation of the equal protection provision of the states constitution.

The Journal Sentinel published a few articles in 2014 describing how the insurance fund which is used to finance strong defense against malpractice cases plus the cap on damages combined with other state laws make it incredibly hard for victims to find adequate representation.

The state mandated first step in filing a medical malpractice suit is to request mediation. In 1987 there were 410 mediation requests filed in Wisconsin. As of last year the state records shows 116 mediation requests filed.

Judge William Brash an appeals judge in the Mayo case agreed with Conen’s decision and wrote he agreed with the state’s cap on non economic damages as unconstitutional when applied to the Mayo trial.

“It would be unreasonable for the Mayo’s whose lives have been so drastically altered due to these events to have to bear the brunt of the legislature’s tort reform,” said Brash, quoting Conen’s 2014 decision.

No evidence of negligence on the behalf of the physician or assistant from Columbia St. Mary’s Hospital was found in the Mayo malpractice case. However, the case did note that the doctor Wyatt Jaffe and his assistant Donald Gibson, did not give Mayo “alternative medical diagnoses” which would of helped her search for another form of treatment.

2011 Mayo had gone to Columbia complaining of a high fever and pain in her abdominal. At the time she was not made aware she had a septic infection and that her infection could be treated with antibiotics.

“Instead, Mayo was told to follow up with her personal gynecologist for her history of uterine fibroids,” said Kessler.

The following day she went to another hospital.

“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,” according to Kessler.

The Wisconsin Hospital Association and the Wisconsin Medical Society strongly criticized the appeals court decision on Wednesday.

“We disagree with the Court of Appeals conclusion that there is no evidence or rationale supporting the Legislature’s policy decision to protect access to health care in Wisconsin by enacting Wisconsin’s cap on non-economic damages in medical malpractice cases,” Eric Borgerding, association president, stated which foresaw the Supreme Court’s overturned decision.

Elimination of the cap would “negatively impact Wisconsin communities’ efforts to attract physicians to provide accessible quality health care to their residents,” according to the statement.

Caps on malpractice awards have not been proven to improve or protect the quality of medical care or attract skilled Doctors according to Kessler’s decision.

“The number of physicians participating in the (state insurance) fund has increased every year, indicating that the cap increase has had little to no effect on physician retention in Wisconsin,” Kessler stated. “Indeed, data … indicates the existence or non-existence of a non-economic damages cap has no demonstrably consistent effect on physician retention anywhere.”

In 2014, per capita in other states physicians paid more in medical malpractice claims than doctors in the state of Wisconsin according to a Journal Sentinel story.

The general counsel for the Wisconsin Medical Society, John Rather said the data that was being used from 2005 was out dated and not relevant to the case. Illinois state cap on malpractice insurance premiums were struck down in 2010 they have increased by 18%.

The appeals court judges seemed as if they  “didn’t really consider a lot of information provided by … our amicus brief” presented in the case, said Rather. “We  think there is more to the story than that opinion lays out.”


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