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Wisconsin Appeals Court Rules $750,000 Cap On Noneconomic Damages In Medical Malpractice Cases Is Unconstitutional

The medical malpractice case involving Ascaris Mayo was brought to a District Court of Appeals in Wisconsin. Doctors failed to inform Mayo that she had a septic infection, which later sent her into a coma resulting in the amputation of her limbs. A jury awarded Mayo $25.3 million in damages, $15 million of which were noneconomic, as well as $1.5 million for her husband’s losses of companionship. In Wisconsin, the state has a malpractice fund which medical professionals pay into for coverage of malpractice awards. Attorneys for the fund moved to have her award reduced to the state’s cap of $750,000. The appeals court panel ruled that the cap was unconstitutional because it is unfair to those who have experienced the most catastrophic injuries. Judge Joan Kessler explained that the cap implemented in the statutes is unconstitutional “on its face”. She feels that the cap unfairly reduces the noneconomic damages for the most badly injured, which is not usually the case for those with less severe injuries.

In 2011, Ascaris Mayo arrived at Columbus St. Mary’s Hospital in Milwaukee complaining of stomach pain and fever. Dr. Wyatt Jaffe and his assistant determined that she had an infection; however, she was not made aware of the diagnosis, which would have been treatable with antibiotics. Mayo was simply told to visit her gynecologist regarding her uterine fibroids. In the meanwhile, Mayo’s condition worsened from the infection and another medical facility determined that she had developed gangrene in her arms and legs, which needed to be amputated.

The appeals court ruled that the state cap essentially violated equal protection. The panel felt that the cap did not contribute toward the goals for which it was intended. Some of the goals that the cap sought to achieve were as follows:

  • To encourage physicians to practice in the state
  • Cost containment and a reduction in the practices of “defensive medicine”
  • To prevent massive awards
  • Maintain and protect the state compensation fund

The court cited that the number of physicians participating in the compensation fund had steadily grown. Physicians are protected from personal liability by the fund; therefore, should not be forced to employ tactics of defensive medicine. The state fund has remained strong; in fact, the volume of claims has fallen and the fund’s assets exceed $1 billion. The court found no evidence of any correlation between the limitation on noneconomic damages and these objectives. Dan Rottier, an attorney for the plaintiff, feels that the case will reach the state’s Supreme Court.

Opposition was strong to the appeals court ruling from representation of the Wisconsin Hospital Association (WHA) and the Wisconsin Medical Society. Eric Borgerding, of the WHA, thinks that the Supreme Court will reverse the decision. He disagrees that there is no correlation between the cap and the success of the state’s malpractice environment. Borgerding says that the elimination of the cap would have negative consequences for the physicians in the state who wish to deliver care that is high quality and affordable.

About the Author

Briggs Bedigian
Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm’s litigation practice.  Briggs’ legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 


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