Court rules malpractice award cap unconstitutional

Ruling that Wisconsin’s $750,000 cap on medical malpractice claims is unconstitutional, an appellate court said Wednesday that a Milwaukee woman who lost all four limbs should collect the $16.5 million for pain and suffering awarded to her and her husband.

“We conclude that the statutory cap on non-economic damages is unconstitutional on its face,” Judge Joan Kessler wrote in the 19-page unanimous opinion by the three-judge First District Court of Appeals panel.

Kessler added that “Wisconsin’s cap on non-economic medical malpractice damages always reduces non-economic 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.”

The appeal involves the $25.3 million award given in 2014 to Ascaris Mayo, a 57-yearold mother of four who had her limbs amputated in 2011 after a Strep A infection — the kind that causes strep throat — went undetected, leading to septic shock. The damage caused by the infection led to the amputations.

Wisconsin law caps non-economic damages in medical malpractice cases at $750,000 but does not put a ceiling on the amount that could be awarded for economic damages, such as medical costs, which in Mayo’s case was awarded at $8.8 million. That award and $750,000 has already been paid by the $1.3 billion state-managed medical malpractice insurance fund.

The case is expected to be appealed to the state Supreme Court.

The attorney for Mayo and her husband, Antonio, said the $8.8 million awarded for economic damages is earmarked for past and future expenses. “That’s not putting money back into her pocket,” attorney Dan Rottier said.

In fact, Rottier said, if the Supreme Court overturns the decision and rules the $750,000 cap constitutional, the Mayos would not receive enough mon-

ey from the award to cover the $400,000 in expenses that were incurred to bring the case and the fees for Rottier and his associates. Attorney’s fees in medical malpractice cases are capped at one-third of the first $1 million won, plus 20% of any awards over that amount.

By striking down the entire cap, the appellate court, which sits in Milwaukee, went further than Milwaukee County Circuit Judge Jeffrey Conen, who fell short of declaring the cap unconstitutional, instead ruling that it was unconstitutional when applied in the Mayo case.

Wisconsin has had various ceilings on medical malpractice damages since 1986. A $350,000 cap enacted in 1995 was struck down by the state Supreme Court in 2005 as being arbitrary and violating the equal protection provision of the state constitution. It was replaced a year later by the $750,000 ceiling.

Discourages lawsuits

The Journal Sentinel in 2014 published a series of stories detailing how the insurance fund, whose dollars are used to finance aggressive defense against medical malpractice claims, combined with the damage cap and other state laws, created roadblocks that made it difficult — and often impossible — to find attorneys willing to represent potential victims of medical malpractice.

In 1987 there were 410 requests for mediation — the state-mandated first step in bringing a medical malpractice suit — filed in Wisconsin. Last year, 116 requests were filed, state records show.

In the Mayo case, Appeals Judge William Brash echoed Conen’s decision, writing a concurring opinion saying he agreed that the state’s cap on non-economic

damages was unconstitutional as applied in the Mayo case.

“It would be unreasonable for the Mayos whose lives have been so drastically altered due to these events to have to bear the brunt of the legislature’s tort reform,” Brash wrote, quoting Conen’s 2014 ruling.

In the Mayo malpractice trial, the jury found no negligence by the physician or physician’s assistant who treated Mayo at Columbia St. Mary’s Hospital in Milwaukee. However, it found that the doctor, Wyatt Jaffe, and the physician’s assistant, Donald Gibson, failed to provide Mayo with “alternative medical diagnoses” that would have led her to pursue other treatment.

Mayo had gone to Columbia in 2011 complaining of abdominal pain and a high fever. She was not told that she may have a septic infection or that antibiotics could be used to treat the infection.

“Instead, Mayo was told to follow up with her personal gynecologist for her history of uterine fibroids,” Kessler wrote.

The next day she went to a different hospital.

“Ultimately, the sepsis caused nearly all of Mayo’s organs to fail and led to dry gangrene in all four of Mayo’s extremities, necessitating the amputation of all of Mayo’s extremities,” Kessler wrote.

Decision criticized

The appeals court decision was sharply criticized Wednesday by the Wisconsin Hospital Association and the Wisconsin Medical Society.

“We disagree with the Court of Appeals conclusion that there is no evidence or rationale supporting the Legislature’s policy decision to protect access to health care in Wisconsin by enacting Wisconsin’s cap on non-economic damages in medical malpractice cases,” Eric Borgerding, association president, said in a statement that

predicted the decision would be overturned by the Supreme Court.

Eliminating the cap will “negatively impact Wisconsin communities’ efforts to attract physicians to provide accessible quality health care to their residents,” the statement said.

Kessler’s decision argued caps do not improve or protect the quality of medical care or attract good doctors.

“The number of physicians participating in the (state insurance) fund has

increased every year, indicating that the cap increase has had little to no effect on physician retention in Wisconsin,” Kessler wrote. “Indeed, data ... indicates the existence or non-existence of a non-economic damages cap has no demonstrably consistent effect on physician retention anywhere.”

The decision cited a Journal Sentinel report that in 2014 Wisconsin doctors paid fewer medical malpractice claims per capita than physicians in any other state.

John Rather, general counsel for the Wisconsin Medical Society, argued that much of the data used by the appeals court dated to 2005 and was no longer relevant. For example, Rather said, malpractice insurance premiums have increased by 18% in Illinois since that state’s cap on damages was struck down in 2010.

It appears the appeals court judges “didn’t really consider a lot of information provided by ... our amicus brief,” Rather said. “We think there is more to the story than that opinion lays out.”