A Wisconsin trial judge deciding post-trial motions filed by the parties in a Wisconsin medical malpractice case issued his October 3, 2014 Decision and Order finding that Wisconsin’s cap on noneconomic damages in the amount of $750,000 is unconstitutional as it applies to this case, under the particular facts of this case, where a woman had to have all four of her limbs amputated because a hospital emergency room failed to diagnose and treat her serious Staph A infection, leading to sepsis.
The woman had gone to the emergency room in 2011, complaining of a fever and abdominal pain. Despite a differential diagnosis that included infection, the hospital medical staff treated her for uterine fibroids (she had a history of uterine fibroids). The next day, she went to another hospital emergency room where she was properly diagnosed with a Staph A infection that ultimately required that she have all four of her limbs amputated in order to save her life.
A medical malpractice jury determined that although the defendants were not medically negligent in the diagnosis and treatment of the woman in the emergency room, they had failed to properly inform the woman about the suspected infection and the availability of antibiotics to treat her suspected infection, which caused her injuries. The jury awarded $9 million in economic damages and $16.5 million in noneconomic damages, of which $15 million was compensation for the woman’s pain, suffering, disability, and disfigurement.
The plaintiffs asked the trial judge in a post-trial motion to determine that Wisconsin’s cap on noneconomic damages in the amount of $750,000 was unconstitutional as it applied specifically to them in this case. The trial judge granted their motion.
In Wisconsin, successful medical malpractice plaintiffs may receive compensation for their award of economic and noneconomic damages from the Wisconsin Injured Persons and Families Compensation Fund (“Fund”), which is funded by premiums paid by health care providers; however, noneconomic damages are capped at $750,000. The stated purpose of the cap is to ensure affordable and accessible health care for all citizens of Wisconsin while providing adequate compensation to victims of medical malpractice. The Fund covers the amount of awards in excess of the health care providers’ own liability insurance.
In his prior decision in this case dated April 10, 2014, the trial judge determined that the cap is not facially unconstitutional. The plaintiffs’ challenge to the cap after the jury’s verdict was that the cap is unconstitutional “as-applied” specifically to them under the specific facts of their case (the cap itself is presumed constitutional under such a challenge).
The trial judge determined that the plaintiffs’ rights to due process and equal protection were violated by the cap as it applied to them because there is no rational basis for the plaintiffs to submit to the cap. The judge noted that the cap results in two classes of medical malpractice victims: those who are fully compensated and those who are not because of the cap. The plaintiffs would receive only 4.54% of the jury’s award if the cap applied to them.
The judge noted that the Fund was valued at about $1.08 billion in 2013, and that the plaintiffs’ verdict could be paid in full from the Fund’s investment income in 2013 alone (the plaintiffs’ verdict could be paid by the Fund without depriving any other claimants of the money due to them; payment of the plaintiffs’ claim would not increase the overall cost of health care in Wisconsin). Furthermore, the trial judge found that the jury’s verdict was not out of proportion to the severity of the injuries suffered by the plaintiffs.
The trial judge concluded: “It is unreasonable to require [the plaintiffs], whose lives have been so drastically altered, to bear the brunt of the legislature’s intended ‘tort reform’ … in this particular instance, there is no rational basis for requiring the Plaintiffs to forgo their jury award in the hopes of marginally improving health care in Wisconsin.”
The Wisconsin case is captioned Ascaris Mayo, et al. v. The Wisconsin Injured Patients And Families Compensation Fund, et al., Milwaukee County Circuit Court, Case No.: 2012V006272.
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