A Wisconsin Circuit Court Judge made waves over a year ago, when he issued a Decision finding that Wisconsin’s cap on noneconomic damages in medical malpractice cases was unconstitutional as applied to the plaintiff in the case. By way of background, Wisconsin lawmakers previously passed legislation implementing a statutory cap limiting recovery for noneconomic damages in medical malpractice cases. Most recently, the noneconomic damages cap for a medical malpractice action in Wisconsin is $750,000.00. In other words, a plaintiff in a medical malpractice action in Wisconsin is limited to receiving $750,000.00 for pain, suffering, embarrassment, and other noneconomic losses regardless of the amount awarded by a jury and the nature and extent of the injury sustained. Wisconsin’s damages cap has previously withstood challenges to the broad constitutionality of the statute.
In the relatively recent case, Mayo v. Wisconsin Injured Patients and Families Compensation Fund (2012 CV 6272), the plaintiffs alleged that physicians failed to timely diagnose an infection. Because of this alleged malpractice, Mrs. Mayo suffered the loss of all four of her limbs. Following a jury trial, the jury awarded plaintiff and her husband $25.3 million dollars. This award included $16.5 million dollars in noneconomic damages for Mrs. Mayo’s pain, suffering, disability, and disfigurement in addition to Mr. Mayo’s loss of consortium, or generally known as the loss of his wife’s company. To avoid the statutory damages cap, plaintiffs challenged the constitutionality of the damages cap statute. Instead of making a broad challenge to the overall constitutionality of the statute, they asserted that the damages cap was unconstitutional “as applied” to them.
An “as applied” challenge to a statute is a claim that a statute is unconstitutional as it relates to the facts of a particular case or to a particular party. In other words, the challenger must establish that a statute is violating his or her constitutional rights. In this case, applying the statutory cap resulted in a substantial deprivation of the plaintiffs’ property interest, specifically a 95% reduction of the jury’s noneconomic damages award. In balancing the public’s interest supposedly maintained with the damages cap with the plaintiff’s private interests, the circuit court performed an analysis of the severity of the injuries in the case and concluded that applying the cap was contrary to the legislative goals because applying the cap resulted in only minimal compensation to the plaintiffs. The court further noted that the fund in place for compensating victims of medical malpractice in Wisconsin was valued at over $8 billion dollars and payment to the plaintiffs in the case would not affect the profitability or viability of the fund which in turn demonstrated that applying the cap to the plaintiff’s damages was not rationally related to the purposes for having a statutory damages cap.
Defendants appealed and the parties and numerous non-parties submitted the case to the Wisconsin Court of Appeals on written arguments alone. The final briefs were submitted on March 1, 2016 and the parties now await a decision from the Wisconsin Court of Appeals. The pending decision will address “as applied” challenges to the statute’s constitutionality and of briefing further raises issues with respect to the damages cap statute itself with respect to violations of the rights to a jury trial, certain remedies, equal protection, due process, and separation of powers.
A decision affirming the circuit court would have a profound impact on medical malpractice actions in Wisconsin. The damages caps have been a significant deterrent to medical malpractice lawsuits, making certain cases infeasible for attorneys to provide representation to plaintiffs. A decision affirming the circuit court could potentially broaden the avenues for victims of medical malpractice to seek justice.
If you suspect that you have suffered from an untimely diagnosis or malpractice, you may wish to contact an attorney. The attorneys at Hansen Dordell have investigated and pursued numerous medical malpractice actions resulting in millions of dollars in recovery. If you have any questions, please contact one of the experienced attorneys at Hansen Dordell by phone or email – at www.hansendordell.com/ (651) 482-8900.
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