In its decision filed on July 5, 2017, the Wisconsin Court of Appeals District I (“Appellate Court”) held that Wisconsin’s statutory $750,000 cap on noneconomic damages in medical malpractice cases (WIS. STAT. § 893.55 (2015-16)) is unconstitutional on its face because it imposes an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws.
The Appellate Court stated that because Wisconsin’s cap on noneconomic medical malpractice damages 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 severely injured malpractice victims, the cap denies equal protection to that class of malpractice victims whose adequate noneconomic damages a factfinder has determined are in excess of the cap.
The Underlying Facts
In May 2011, the Wisconsin medical malpractice plaintiff went to a local hospital emergency room, complaining of abdominal pain and a high fever. A physician’s assistant’s differential diagnosis included infection, and he admitted at trial that the plaintiff met the criteria for Systematic Inflammatory Response Syndrome.
The physician’s assistant and a treating physician did not advise the plaintiff regarding the diagnosis or that the treatment for infection would have been antibiotics. The plaintiff was told to follow up with her gynecologist for her history of uterine fibroids and was discharged home.
The next day, the plaintiff’s medical condition deteriorated. She went to another hospital’s emergency room where she was diagnosed with a septic infection caused by the untreated infection. The plaintiff’s condition continued to deteriorate: she became comatose and eventually became minimally responsive until she was transferred to another medical facility. The sepsis caused nearly total organ failure and led to dry gangrene in all four of her extremities, all of which had to be amputated.
The plaintiff filed her Wisconsin medical malpractice lawsuit alleging medical negligence and the failure of the defendants to obtain the proper informed consent from her. The Wisconsin medical malpractice jury found that the defendant medical providers did not commit medical malpractice in treating the plaintiff but did find that they failed to provide the plaintiff with the proper informed consent regarding her diagnosis and treatment options. The Wisconsin medical malpractice jury awarded the plaintiff $15,000,000 in noneconomic damages and her husband $1,500,000 for his loss of the society and companionship of his wife.
Post-trial, the Wisconsin Injured Patients and Families Compensation Fund (“Fund”) moved to reduce the the plaintiffs’ jury award to the $750,000 statutory cap on noneconomic damages imposed by WIS. STAT. § 893.55. The plaintiffs responded by moving for entry of judgment on the verdict, arguing that an application of the cap would violate their constitutional rights.
The circuit court determined that the cap was not facially unconstitutional, but that it was unconstitutional as applied to the plaintiffs because it violated their rights to equal protection and due process, finding that: (1) application of the cap would reduce the plaintiffs’ noneconomic damages jury award by 95.46%; (2) there is no rational basis to deprive the plaintiff, who is largely immobile, of the money the jury found necessary to compensate her for her injuries; (3) reducing the plaintiffs’ jury award would not further the cap’s purpose of promoting affordable healthcare to Wisconsin residents while also ensuring adequate compensation to medical malpractice victims; (4) financially, the Fund was more than capable of honoring the jury’s award without jeopardizing its solvency; and (5) applying the cap would not advance the legislative purpose of “policing high or unpredictable economic damage awards.”
Both the plaintiffs and the defendants appealed.
Appellate Court Decision
In setting a $750,000 cap on noneconomic damages in Wisconsin medical malpractice cases, the Wisconsin Legislature concluded that the cap would: limit disincentives for physicians to practice in Wisconsin; limit the incentive for doctors to practice defensive medicine; contain the cost of patient care by keeping medical malpractice premiums low; and protect the financial solvency of the Fund.
The Appellate Court discussed a prior Wisconsin Supreme Court case in which it had expressly rejected the notion that a rational relationship existed between any of these stated objectives and the then $350,000 cap (adjusted for inflation). Based on the data before it, the Wisconsin Supreme Court concluded that: (1) the existence or nonexistence of “caps on noneconomic damages [does] not affect doctors’ migration,” (2) “defensive medicine cannot be measured accurately and does not contribute significantly to the cost of health care,” (3) “the correlation between caps on noneconomic damages and the reduction of medical malpractice premiums or overall health care costs is at best indirect, weak, and remote,” and the cap was not necessary to the financial integrity of the Fund (“The Fund has flourished both with and without the cap”).
The Appellate Court stated that all of the conclusions reached by the Wisconsin Supreme Court in the prior case continue to hold true today: the record does not support a finding that the legislative objectives articulated in WIS. STAT. § 893.55 are promoted in any way because the amount of the noneconomic damages cap is $750,000 (the number of physicians participating in the Fund has increased every year, indicating that the cap increase has had little to no effect on physician retention in Wisconsin; data in the record indicates that the existence or non-existence of a noneconomic damages cap has no demonstrably consistent effect on physician retention anywhere (data demonstrates that many states with no caps on noneconomic damages actually have higher physician retention rates than Wisconsin); the record does not demonstrate any correlation between medical malpractice premiums and caps on noneconomic damages; and data suggests that the existence of noneconomic damages caps may actually increase the risk to patient safety.
The Appellate Court therefore concluded that the current noneconomic damages cap is not rationally related to the legislative objective of retaining physicians in Wisconsin, and that the evidence does not establish that the current noneconomic damages cap is rationally related to the legislative objective of keeping medical malpractice insurance premiums low.
The Appellate Court further concluded that the cap does nothing to promote the primary purpose of the statute, which is to “ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice,” and the record does not contain any evidence explaining why one class of malpractice victims (the most severely injured as measured by a jury award of noneconomic damages exceeding the cap) should be denied their full jury award, while another class of malpractice victims (less severely injured as measured by a jury award of noneconomic damages not exceeding the cap) should receive the full jury award.
The Appellate Court held that by reducing damages only for the most severely injured victims of medical malpractice, that class of persons is denied equal protection guaranteed by the Wisconsin Constitution; severely injured medical malpractice claimants are unduly burdened by the cap without a rational basis that supports the legislature’s stated objectives in any way; and the $750,000 cap on noneconomic damages has the practical effect of imposing devastating costs only on the few who sustain the greatest damages and creates a class of catastrophically injured victims who are denied the adequate compensation awarded by a jury, while the less severely injured malpractice victims are awarded their full compensation.
The Appellate Court concluded that the amount of the cap was arbitrarily selected because, based on the record, it is unrelated factually to the goals of the statute of which it is a part.
Source Mayo v. Wisconsin Injured Patients And Families Compensation Fund, Appeal No. 2014AP2812
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