Wisconsin appellate court deems statutory noneconomic damages cap unconstitutional
July 17, 2017
The U.S. Court of Appeals of Wisconsin ruled last week that the $750,000 noneconomic damages cap in medical practice actions was unconstitutional as it applied to the following case, and is unconstitutional on its face, as it imposes an unfair and illogical burden only on catastrophically injured patients, in effect denying them the equal protection of laws. The case is Mayo v. Wis. Injured Patients & Families Comp. Fund. No. 2014AP2812, 2017 Wisc. App. Lexis 494 (Ct. App. July 5, 2017).
The case is a result of a catastrophic injury sustained by the plaintiff, Ascaris Mayo. Mayo suffered from an untreated septic infection that ultimately resulted in the amputation of all of her extremities despite a hospital visit. After being taken to the emergency room due to high fever and abdominal pain, Mayo was seen by Dr. Wyatt Jaffe and a physician's assistant, Donald Gibson. In his differential Gibson included infection as a possible ailment. Although her symptoms met the criteria for Systematic Inflammatory Response Syndrome, neither professional informed her of the diagnosis or the available treatment. She was instead instructed to follow up with her personal doctor. The next day Mayo went to a different emergency room where she was diagnosed with a septic infection caused by the untreated infection. She became comatose and largely unresponsive. Ultimately all of her organs failed, due to the sepsis, which lead to dry gangrene in all of her extremities, eventually requiring amputation of all four of her limbs. The Mayos sued both doctors, their insurance company, and the Wisconsin Injured Patients and Families Comp. Fund for medical malpractice and failure to provide proper informed consent.
The Mayos got a large verdict from the jury, $15 million for noneconomic damages for Ascaris Mayo, and $1.5 million in noneconomic damages for her husband for loss of society and companionship. The Wisconsin Injured Patients and Families Compensation Fund moved to reduce the jury award to the $750,000 statutory cap for noneconomic damages (Wis. Stat. §893.55). The Mayo's argued that the statutory cap is unconstitutional because it violates the equal protection rights of catastrophically injured patients, and that there is no rational basis connecting the amount of the cap to the purposes that the legislature stated for enacting the cap.
The appellate court ultimately concluded, in conjunction with a previous decision of the Wisconsin Supreme Court, that legislative objectives, namely a loss of physicians in the state of Wisconsin, from Wis. Stat. §893.55 are not supported, as the number of physicians has increased every year in Wisconsin. The appellate court also cited concerns about the difference between the cost of medical malpractice cases now and when the statutory cap was enacted. The court ultimately concluded that not all caps on noneconomic damages are unconstitutional, just that the amount that this cap was set to was arbitrarily selected because it seems to have been set at an amount that was unrelated factually to the goals of the statute that enacts the cap.
Editor's Note: Although the court specifically states that it does not deem all statutorily depicted caps on damages to be unconstitutional, it found that this cap in particular discriminated against the most catastrophically injured patients, and there was no rational basis that connected the amount of the statutorily depicted cap to the purposes the legislature had for enacting the cap. Times and economics have changed since the statutory cap was enacted. This decision, though, still has an adverse impact on insurers. Since insurers are responsible for noneconomic damages in cases of liability, including medical malpractice, if statutory caps are deemed unconstitutional, insurance premiums across the board are likely to rise.