Noneconomic Damages – Medical Malpractice

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WI Supreme Court

Case Name: Ascaris Mayo, et al. v. Wisconsin Injured Patients and Families

Case No.: 2018 WI 78

Focus: Noneconomic Damages – Medical Malpractice

Our review considers whether the legislatively-enacted cap of $750,000 (the cap) on noneconomic damages for victims of medical malpractice that is set out in Wis. Stat. § 893.55 (2015-16) is unconstitutional facially or as applied, based on equal protection and due process grounds. In reliance on Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, the court of appeals concluded that the cap was facially unconstitutional. The court of appeals did not address whether § 893.55 was unconstitutional as applied to Ascaris and Antonio Mayo (the Mayos). However, the circuit court had concluded that the $750,000 cap on noneconomic damages was unconstitutional as applied to the Mayos.

We conclude that rational basis is the proper standard by which to judge the constitutionality of Wis. Stat. § 893.55; that § 893.55 is facially constitutional and constitutional as applied to the Mayos; and that Ferdon erroneously invaded the province of the legislature and applied an erroneous standard of review. Accordingly, we reverse the court of appeals’ decision, overrule Ferdon, and conclude that the $750,000 cap on noneconomic damages in medical malpractice judgments and settlements is constitutional both facially and as applied to the Mayos.

Therefore, we reverse the court of appeals and remand to the circuit court to impose the $750,000 cap on noneconomic damages.

Reversed and Remanded

Concur: R.G. BRADLEY, J., concurs, joined by KELLY, J. (opinion filed).

Dissent: A.W. BRADLEY, J., dissents, joined by ABRAHAMSON, J. (opinion filed).

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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.