Judge’s decision in medical malpractice case a rarity

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In the eight years since the state enacted a cap on the amount of damages a plaintiff can collect in a medical malpractice case, a Milwaukee judge’s decision to award an amputee $15.75 million more than the damages cap is the exception to the rule, the woman’s attorney said Monday.

Daniel Rottier, who represented Ascaris Mayo in a case she brought against doctors Wyatt Jaffe and Donald Gibson, said he could only think of one other case where a jury awarded more than $750,000 in noneconomic damages. Even if the defendants appeal, he said, the circumstances presented in this case are a rarity.

“This isn’t going to be a recurring problem, and certainly not with any frequency,” Rottier, of Habush Habush & Rottier SC, Madison, said.

On Friday, Judge Jeffrey Conen, in a decision and order, ruled that Mayo’s case does not have to follow the state’s cap on noneconomic damages. He said Mayo and her husband, Antonio, deserve the $16.5 million in economic damages a jury awarded them.

“Although the cap may be constitutional as applied to medical malpractice victims as a whole, there is no rational justification for depriving Mrs. Mayo, who is in her mid-fifties, limbless, and largely immobile, and Mr. Mayo of the award the jury decided was appropriate to compensate them for their injuries,” Conen wrote.

Mayo had her arms and legs amputated in 2011 as a result of a Strep A infection and treatment she received for septic shock that resulted in poor blood flow to her limbs. She now has prosthetic arms and legs.

The Mayos sued Jaffe and Gibson in 2012. In addition to $16.5 million in economic damages, a jury awarded Mayo nearly $9 million in economic damages in July. Following the verdict, Mayo asked the judge to allow the award to stand.

The Legislature approved the $750,000 cap on noneconomic damages in 2006 amidst concerns that insurance premiums would soar and litigation against doctors would be more prevalent.

In Friday’s decision, Conen noted there were 117 medical malpractice lawsuits filed in Wisconsin in 2012, compared with 225 in 2004.

He pointed out that his ruling does not declare the cap itself unconstitutional, writing that “this decision is not meant to be precedential, nor is it intended to dictate the legal outcome of any other factual matters.” He also pointed out that on April 10 in this case, he ruled that the cap itself is not facially unconstitutional.

Conen also noted that the Wisconsin Injured Patients & Families Compensation Fund, which would pay noneconomic damages, has more than $1 billion in it and that a $16.5 million payout would only be a small part of that.

“Given the fund’s financial viability,” Conen wrote, “payment of the full award will also not affect the fund to the point that it must raise premiums.”

Rottier said Conen’s ruling makes it clear that any judge would have to take into consideration different factors for exempting from the cap, such as the severity of a plaintiff’s injuries and the financial status of the fund.

Michael Malone, an attorney representing the fund, said he was not in a position to comment on the decision. Malone, of Hinshaw & Culbertson LLP, Milwaukee, said no decision has been made on whether to appeal, but that he expects one to be filed.

Rottier said he wouldn’t be surprised to see an appeal, but said defense counsel may not want a Court of Appeals opinion on this, since that would risk becoming precedential.

Nonetheless, the verdict is being closely watched. According to an email attributed to Mark Grapentine, a lobbyist for the Wisconsin Medical Society, “we’re reviewing the judge’s opinion and we’ll take appropriate steps to ensure Wisconsin’s patients have good access to high-quality health care.”

In his decision, Conen also struck down attempts by the defendants to change the answers on the jury’s verdict based on the evidence. Follow @eheisigWLJ