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Home / Legal News / Wisconsin upholds med-mal cap for some malpractice damages at $750K (UPDATE)

Wisconsin upholds med-mal cap for some malpractice damages at $750K (UPDATE)

By TODD RICHMOND, Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court upheld the state’s cap on noneconomic medical-malpractice damages on Wednesday, reversing a lower-court ruling that had awarded $15 million to a woman whose four limbs had to be amputated following a mishandled infection.

The court ruled 5-2 in a long-running case closely watched by doctors, hospitals and the insurance industry. Chief Justice Patience Roggensack wrote that the Legislature was acting rationally when it concluded that the $750,000 cap would keep health care affordable while providing reasonable compensation to injured people.

“By enacting the cap, the Legislature made a legitimate policy choice, knowing that there could be some harsh results for those who suffered medical malpractice and would not be able to recover the full amount of their noneconomic damages,” Roggensack wrote.

The ruling stems from a case involving Ascaris Mayo. According to court documents, doctors didn’t tell the mother of four she was suffering from a septic infection in 2011. She fell into a coma and her arms and legs had to be amputated after gangrene set in.

Mayo and her husband sued the doctors and the state’s malpractice-compensation fund, an account doctors pay into to cover malpractice awards.

A jury awarded the couple $25.3 million, including $15 million in noneconomic damages, defined as damages such as pain, suffering, inconvenience and disfigurement, and $1.5 million for her husband’s loss of companionship.

The compensation fund’s attorneys moved to reduce the noneconomic damages award to $750,000, the maximum payout under Wisconsin statutes.

The Mayos argued the cap is unconstitutional. A Milwaukee County judge agreed, saying the cap was unconstitutional as it applied in their case. The 1st District Court of Appeals went further last year, finding the cap unconstitutional on its face.

That court found the cap limits awards for the catastrophically injured, amounting to an equal-protection violation. The court added that the cap doesn’t achieve any of the Legislature’s stated goals in adopting it.

The cap includes language stating it was designed to encourage doctors to practice in Wisconsin, hold down health-care costs by discouraging “defensive medicine,” provide certainty and protect the compensation fund’s solvency. The appeals court said the number of doctors in Wisconsin has been increasing and doctors don’t face any personal liability thanks to the state fund, eliminating the need to practice defensive medicine. What’s more, by 2014, the fund’s assets stood at around $1.2 billion, negating concerns about solvency, the court said.

A coalition of nonprofit associations representing specialized physicians, psychiatrists and surgeons filed a brief with the Supreme Court urging the justices to uphold the cap, arguing it’s not the only instance in which the Legislature has limited damage and it helps foster the perception that Wisconsin welcomes doctors.

The Wisconsin Hospital Association filed its own brief in January, maintaining that eliminating the cap would expose the compensation fund to unlimited future risk. More than 30 Wisconsin counties are suffering a shortage of doctors and a removal of the cap could exacerbate the shortages.

John Rather, general counsel for the Wisconsin Medical Society, said the court’s decision found the cap to be constitutional both on its face and as it was applied in Mayo’s particular case. It also reversed the court’s decision in Ferdon vs. Wisconsin Patients Compensation Fund, helping to clarify the law, Rather said.

“I hope and think that this issue of whether the cap is legal or not will be put to rest for the foreseeable future,” he said.

The Wisconsin Association of Justice, which had filed an amicus brief urging the court to do away with the cap, took a different position. That group, which represents trial lawyers, was disappointed by the case’s outcome, said president-elect Edward Robinson.

“We respectfully disagree with the Wisconsin Supreme Court’s decision,” he said. “The association supports the Constitutional right to a trial by jury, as guaranteed by the Wisconsin and Federal Constitutions. Caps on damages in medical malpractice cases violate that right. The fact that the (compensation fund) has a surplus of over $1 billion shows that there is no rational basis for the cap.”

The Mayos’ attorney, Dan Rottier, didn’t immediately return a message left at his office Wednesday morning.

Rather said the decision is gratifying and will give doctors a greater sense of stability.

“We think today’s decision will help attract and retain good doctors, which helps all of us,” he said.

Erika Strebel of the Wisconsin Law Journal contributed to this article.

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