Medical Malpractice Damages Cap Found Unconstitutional on a Case by Case Basis

October 21, 2014
Mark Longua
SmithAmundsen Milwaukee Alert



On October 3, 2014, Judge Jeffrey Conen of the Milwaukee County Circuit Court issued a decision finding that Wisconsin’s medical malpractice cap on economic damages was unconstitutional as it applied solely to the Ascaris Mayo, et al. v. Wisconsin Injured Patients and Families Compensation Fund, et al. case.

Ms. Mayo lost all four extremities following the delayed treatment of a septic infection. Although infection was part of the differential diagnosis, the providers initially opted to treat Ms. Mayo for a gynecological issue. The jury concluded that the providers failed to provide sufficient information as to alternate diagnoses and treatments available including antibiotics to treat an infection. The jury awarded $9 million in economic damages and $16.5 million in noneconomic damages of which $15 million was allocated to Ms. Mayo’s pain, suffering, disability and disfigurement.

On motions after verdict, the court refused to change the jury’s finding on the failure to inform. Judge Conen further refused to reduce the noneconomic damages to the §893.55(4) statutory cap of $750,000 finding that the facts of this case supported the award. He noted that use of the cap would reduce the jury award by more than 95%. Applying the cap in this case would not serve the legislative goals of ensuring “…affordable and accessible health care … while providing adequate compensation to victims of medical malpractice.” Judge Conen declined to rule §893.55(4) unconstitutional on its face but found in this case that there was no rational basis to impose the cap. He specifically recognized the disparity of the fund’s worth with the amount of claims paid over time writing that the award could be paid “in full from [the fund’s] 2013 investment income alone.”

This case is highly likely to be appealed. In its current form, however, the plaintiff’s bar may be more willing to file medical malpractice lawsuits particularly where the damages may be significantly higher than the statutory cap.