July 20, 2017, Trial News
Wisconsin Court of Appeals finds med mal noneconomic damages cap unconstitutional
A noneconomic damages cap in medical malpractice actions is facially unconstitutional because it denies catastrophically injured plaintiffs equal protection under the law, the Wisconsin Court of Appeals has ruled. The court found that the cap is unfair because it always limits noneconomic damages for severely injured plaintiffs but never for less severely injured plaintiffs.
A noneconomic damages cap in medical malpractice actions is facially unconstitutional because it denies catastrophically injured plaintiffs equal protection under the law, the Wisconsin Court of Appeals has ruled. The court found that the cap is unfair because it always limits noneconomic damages for severely injured plaintiffs but never for less severely injured plaintiffs. (Mayo v. Wis. Injured Patients & Families Comp. Fund, 2017 WL 2874614 (Wis. Ct. App. July 5, 2017).)
Ascaris Mayo suffered permanent injuries, including amputation of all her limbs, following an untreated septic infection at a Milwaukee hospital. When she presented at the emergency room (ER) with abdominal pain and a fever, she was not informed of the possibility that she had an infection and was instead instructed to see her gynecologist. When her symptoms worsened the next day, she went to another ER, where she was diagnosed with sepsis. She eventually fell into a coma and suffered organ failure. A gangrene infection led to the amputation of her limbs.
Mayo and her husband sued the treating doctors, the first hospital, insurance company, and a state fund that offers health care providers additional insurance and compensation to injured patients. The plaintiffs’ claims included medical malpractice and failure to obtain informed consent. Before trial, the fund moved for a ruling on the constitutionality of Wisconsin’s $750,000 statutory noneconomic damages cap. A Milwaukee circuit court ruled that the cap was not unconstitutional on its face but allowed the plaintiffs to challenge the cap after trial as it applied to their case.
A jury found in the defendants’ favor on the medical malpractice claim but found for the plaintiffs on the informed consent claim, awarding $15 million in noneconomic damages. When the fund moved to reduce the award based on the cap, the Mayos countered that the cap was unconstitutional facially and as applied to their case. The circuit court agreed that the cap violated the Mayos’ constitutional rights but it again determined that it was not facially unconstitutional. Both parties appealed.
The appellate court relied on a “rational basis” test outlined in a state supreme court decision about a different noneconomic damages cap (Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 701 N.W.2d 440 (Wis. 2005). In Ferdon, the court held that a $350,000 noneconomic damages cap was facially unconstitutional because it essentially created two classes of plaintiffs—those who were catastrophically injured and could not be fully compensated because their damages exceeded the cap and those who were less severely injured but were fully compensated because their damages were below the cap.
The Ferdon court determined that the cap was at odds with the legislature’s goal of compensating victims fairly and stated that “no rational basis exists for treating the most seriously injured patients of medical malpractice less favorable than those less seriously injured.” The cap, therefore, violated the equal protection clause of the state’s constitution—but the court stopped short of declaring all damages caps unconstitutional.
In the Mayos’ case, which involved the legislature’s amended noneconomic damages cap in the wake of Ferdon, the court of appeals followed Ferdon’s reasoning. The court highlighted that all that had changed in the interim was the amount of the cap: The legislature’s reasons for enacting the cap and the requirement of a rational basis for the cap remained essentially the same. The cap did not address the legislature’s goals of discouraging doctor migration out of Wisconsin and defensive medicine practices, protecting residents’ access to quality health care, and adequately compensating medical malpractice victims. The court found that, based on the evidence in the record, these objectives were not “promoted in any way.”
The court also noted that the number of medical malpractice claims in the state is low and that during the compensation fund’s 40-year existence, only 11 percent of claims had been paid—despite the fund having a value of more than $1 billion. It concluded that the cap was arbitrary and placed an undue burden on severely injured plaintiffs in violation of equal protection: “The $750,000 cap . . . has the practical effect of imposing devastating costs on the few who sustain the greatest damages.”