As in many other states, Wisconsin legislators placed a cap on the amount of non-economic damages a plaintiff in a medical malpractice case can recover. This was done to limit the potentially high costs of cases, which in turn raises the costs of malpractice insurance and healthcare in the state in general. Critics of the cap say it unfairly punishes those who are most badly harmed by medical negligence. One woman is taking this argument all the way to the state Supreme Court.
The Damages Cap in Wisconsin
In medical malpractice cases plaintiffs often seek damages for both economic and non-economic harm. Economic damages are rarely limited, and these account for actual, monetary costs, like medical bills, future medical expenses, and lost wages as a result of harm from medical negligence. Non-economic damages cover things that cannot be monetized, like pain and suffering. The cap on these types of damages currently limits plaintiffs to $750,000.
Critics of the Cap
Advocates for patients criticize caps on non-economic damages for a couple of reasons. One is that it puts a significant roadblock in the way of victims being able to file a lawsuit at all. Malpractice lawyers are paid as a percentage of damages won. When the damages are limited, taking on a case may not make financial sense for a law firm. This leaves some patients, with genuine cases of malpractice, without the ability to file a lawsuit.
Another criticism is that the cap punishes those who are most severely injured. They may be unable to recover the full amount of damages awarded by a jury because of the cap, while those who are less severely injured do get the total that the jury decides they are owed.
Patient Challenging Damages Cap
It is this second reason that has sent a patient to higher courts to challenge the constitutionality of the non-economic damages cap. Ascaris Mayo, a 50-year-old mother of four, developed a strep A infection in 2011. She went to the hospital with serious symptoms, but the doctors failed to diagnose the infection. Without treatment the infection turned into sepsis, which caused organ failure and gangrene. Mayo ultimately had to have both hands and both legs below the knees amputated.
Mayo and her lawyers took her case of malpractice and failure to diagnose to trial where the jury awarded her $25.3 million in 2014. Of that award, $16.5 million was for non-economic damages, set to be reduced to $750,000 because of the cap.
Mayo and her lawyers appealed the reduction, and the First District Court of Appeals agreed that the limit on what she could recover was unconstitutional. The court stated that the law was unfair because it punished Mayo and others so severely harmed by negligence. The defendants appealed that decision and the case is now headed to the Wisconsin Supreme Court.
The Supreme Court is now hearing oral arguments from both sides of the case. The defendants are arguing that the cap should remain in place with no individual exceptions because it helps keep malpractice insurance rates low, encourages doctors to practice in the state, and limits defensive medicine, making healthcare better for everyone.
The plaintiff and her lawyers are arguing that the cap is unconstitutional in that it unfairly limits what the most severely injured patients can receive in compensation. No matter what a jury decides is a fair amount, they will not get it. What the Supreme Court will decide remains to be seen.