WHEELERweek – Medical Malpractice Caps

As published by The Wheeler Report – Friday, December 2, 2005

DOYLE VETOES MALPRACTICE CAPS, COLLATERAL SOURCE BILLS; SIGNS COVERAGE FOR GRADUATE MEDICAL PROGRAMS

As expected, Gov. Doyle late Friday vetoed the bill reinstituting caps on medical malpractice claims for future pain and suffering. Doyle said it was “unlikely that the Wisconsin Supreme Court would uphold it (the new cap).” (AB-766)

History….

1975: Chapter 37, Laws create Chapter 655 of the Wisconsin Statutes, medical malpractice awards are limited to $500,000 if the Injured Patients and Families Compensation Fund assets fall below a certain level.

1978: State ex rel. Strykowski v. Wilkie. The Wisconsin Supreme Court says Chapter 655 does not violate equal protection or due process guarantees, does not constitute an unlawful  delegation of judicial authority, and does not impair a claimant’s right to trial by jury.

1986: Non-economic damages are limited to $1 million.

1995: Non-economic damages are limited to $350,000 adjusted for yearly inflation.

2000: Czapinski v. St. Francis Hospitals. Wisconsin Court of Appeals says the statutory cap on non-economic damages does not violate the equal protection clause of Wisconsin Constitution.

2001: Guzman v. St. Francis Hospitals. Wisconsin Court of Appeals says the cap on non-economic damages does not violate the right to a trial by jury, the right to remedy clause, due process, or the doctrine of separation of powers.

2005: Ferdon v. Wisconsin Patients Compensation Fund. Wisconsin Supreme Court says the cap on non-economic damages in medical malpractice cases violates the equal protection clause of Wisconsin Constitution.

2005: The Wisconsin legislature passes AB-766, 64-30 in the Assembly (10/25/2005), 19-14 in the Senate (11/8/2005).  Failed to override the Governor’s veto 63-36 (1/19/2006).

2006: The Wisconsin legislature passes AB-1073, 74-22 in the Assembly (3/2/2006), 25-8 in the Senate (3/7/2006) and signed by Gov. Doyle as 2005 Wisconsin Act 183 (3/23/2006). The bill sets the cap at $750,000.

And Today …

From Wednesday, July 5, 2017

APPEALS COURT OPINION RECOMMENDED FOR PUBLICATION

(Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund, Milwaukee County Circuit Court, District I Court of Appeals) This case questions the constitutionality of the $750,000 cap on noneconomic damages in medical practice actions. Ascaris Mayo visited the emergency room of Columbia St. Mary’s Hospital in Milwaukee for abdominal pain and a high fever.  The doctor and physician assistant included infection as part of their differential diagnosis; they did not inform the patient about a possible infection and instead told her to follow up with her personal physician.  The next day Mayo went to a different emergency room where she was admitted with a septic infection. Ultimately Mayo’s infection led to organ failure and gangrene in all four extremities, requiring amputation of all four extremities. Mayo sued the doctor, the health insurance and the Wisconsin Injured Patients and Families Compensation Fund for medical malpractice and failure to provide proper informed consent. The circuit court ruled the cap was not facially unconstitutional but allowed Mayo to raise an as-applied challenge to the cap post-trial. A jury awarded Mayo $15 million in noneconomic damages, not for negligence on the diagnosis, but for not providing enough information to Mayo.  The Fund moved to reduce the jury award to the $750,000 statutory cap. Mayo moved for entry of the judgment saying applying the cap would violate her constitutional rights. The circuit court determined that the cap was not facially unconstitutional, but was unconstitutional as applied to Mayo because it violated the right to equal protection and due process. The Fund and Mayo both appealed the circuit court’s constitutional rulings. The appeals court affirmed the circuit court ruling saying, “We conclude that the statutory cap on noneconomic damages is unconstitutional on its face because it violates the same principles our supreme court articulated in Ferdon ex. Rel. Petrucelli v. Wisconsin Patients Comp. Fund. by imposing an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws.”

Reaction:
Wisconsin Medical Society.
 Disappointed with court decision invalidating cap on noneconomic damages.
Wisconsin Hospital Association.
 Court decision risks patient access to health care.