In July 2017, a state appeals court ruled that Wisconsin’s $750,000 cap on noneconomic damages in medical malpractice actions is unconstitutional as it imposes illogical burdens on catastrophically injured individuals. A three-judge panel said that the cap denies protection to seriously injured victims “who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.”
Judges Joan Kessler and Kitty Brennan of the District 1 Appeals Court, found the cap facially unconstitutional. Facially unconstitutional is a description of a government law, regulation, or rule that is deemed to be unconstitutional as written, as opposed to being unconstitutional as applied. One judge, Judge William Brash III, found the cap unconstitutional, but solely as applied to the plaintiff who was injured.
Case in Point
A woman went to a Milwaukee emergency room and a doctor diagnosed her with an infection but did not inform her of the infection or give her antibiotics even though she met the criteria for Systematic Inflammatory Response Syndrome (SIRS). The following day, the untreated infection caused a septic infection, which led to organ failure and dry gangrene that required amputation of all extremities.
The woman and her husband sued the doctor and others, alleging medical negligence and a failure to provide proper informed consent. She was not told of the diagnosis or the availability of antibiotics to treat her condition, but was told to see a specialist.
Noneconomic Damages
The court addressed the constitutionality, as an initial matter, which sets a $750,000 cap on noneconomic damages in medical malpractice actions. Noneconomical damages compensate for: “pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; loss of consortium, social and companionship; or loss of love and affection.”
Ultimately, after finding negligence on the part of the doctor and his physician’s assistant, a jury awarded the woman $15 million in noneconomic damages. The jury awarded her husband $1.5 million for loss of society and companionship.
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Attempts to Reduce Award
The Wisconsin Injured Patients and Families Compensation Fund, which provides secondary coverage for medical malpractice claims, moved to reduce the award. The court again ruled that the cap was unconstitutional as applied to the couple. Both parties appealed, and two judges decided that the cap was unconstitutional on its face; that it always operates unconstitutionally.
It was noted that in a 2005 case, the Wisconsin Supreme Court struck down, as facially unconstitutional, a $350,000 cap on noneconomic damages. The supreme court acknowledged several stated goals in implementing the cap – to keep the costs of medical insurance down and to keep young doctors in Wisconsin – but eventually ruled against it. The supreme court ruled that the legislature had no rational basis for shifting the economic burden from insurance companies and negligent healthcare providers to injured patients.
Cap Raised
In response, the legislature raised the cap to $750,000, which was $50,000 more than the award at issue in the 2005 case. Again, the legislature specifically stated its policy reasons for implementing the cap, including to ensure affordable health care. But, like the supreme court, a two-judge majority found no rational basis to conclude that the cap does what the legislature says it should do.
The legislature noted that the cap would protect the financial integrity of the fund but as of 2014, the fund held over one billion dollars and “has only paid approximately 11 percent of filed malpractice claims since its inception over 40 years ago.”
Agreement
Judge William Brash III agreed that the statute was unconstitutional, but only applied to this injured woman. “I believe that the legislature has established a reasonable basis for the damages cap statute, and I therefore find it to be facially constitutional,” he wrote.
However, Judge Brash noted that it is unconstitutional in its enforcement against the injured woman, in part because it reduces the amount of her award by more than 95 percent. He remarked that this highlights the disparity in applying the cap to a severely injured patient, as compared to applying the cap in cases where a patient is less severely injured and receives a lower award, but is able to collect the whole amount of the award because it falls under the cap’s limits.
Judge Brash added that the “primary goal of the legislature in enacting the cap was to regulate against excessively high or unpredictable damages awards. This is neither. As noted above, there are no arguments that it is excessive or out of proportion” with the injured woman’s damage.
Legal Help Involving Medical Malpractice
If you or someone you know suffered injuries due to medical malpractice, you may be eligible for compensation. Parker Waichman LLP lawyers offer free, no-obligation case evaluations. We urge you to contact us at 1-800-YOURLAWYER (1-800-968-7529).
