Constitutionality – Statutory Cap on Noneconomic Damages

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WI Court of Appeals – District I

Case Name: Ascaris Mayo, et al., v. United Health Care Insurance Company, et al.

Case No.: 2014AP2812

Officials: Brennan, P.J., Kessler and Brash, JJ.

Focus: Constitutionality – Statutory Cap on Noneconomic Damages

This is an appeal stemming from a circuit court decision finding the $750,000 cap on noneconomic damages in medical practice actions, as articulated in WIS. STAT. § 893.55 (2015-16), unconstitutional as it applied to Ascaris and Antonio Mayo. This is also a cross-appeal of the circuit court’s finding that the statutory cap is not unconstitutional on its face. We conclude that the statutory cap on noneconomic damages is unconstitutional on its face because it violates the same principles our supreme court articulated in Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, by imposing an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws. We conclude 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, this cap denies equal protection to that class of malpractice victims whose adequate noneconomic damages a factfinder has determined are in excess of the cap. Because we conclude that the statutory cap is facially unconstitutional, we need not reach the question of whether the cap is unconstitutional as it applies to the Mayos and we do not disturb the circuit court’s findings as to that question. Because the effect of our decision still entitles the Mayos to their jury award, we affirm the circuit court, albeit on different grounds.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.