Wisconsin’s statutory cap on noneconomic damages for medical malpractice cases has taken many twists and turns over the past 30 years. A recent state court of appeals decision in Mayo v. Wis. Injured Patients & Families Comp. Fund has added to this seemingly never-ending saga by striking down the legislatively enacted $750,000 cap on noneconomic damages. The Supreme Court of Wisconsin will likely have the final say.
The first Wisconsin statute limiting medical malpractice awards to $500,000 was enacted in 1975. The amount was later increased to $1 million in 1986, only to be reduced by the legislature to $350,000 in 1995. The $350,000 limit twice was legally challenged by opponents in 2000 and 2001 and upheld both times by the court of appeals.
In 2005, the Supreme Court of Wisconsin struck down the statute holding that the $350,000 limit on noneconomic damages violated the equal protection clause of the Wisconsin Constitution in Ferdon ex. rel. Petrucelli v. Wisconsin Patients Comp. Fund. According to the Ferdon court the cap created two classifications of victims: 1) the most severely injured who are denied the full award for their injuries, i.e. non-economic damages in excess of the cap; and 2) the less severely injured victims who are fully compensated because their noneconomic damages are not reduced.
Shortly after the Ferdon decision in 2005, the Wisconsin Legislature enacted yet another statute limiting noneconomic damages at $450,000. This bill was vetoed by then Gov. Jim Doyle. A year later the Wisconsin Legislature enacted compromise legislation limiting noneconomic damages at $750,000, which was signed by Gov. Doyle. That statute remained unscathed until the latest court of appeals decision.
The $750,000 cap was challenged by a patient who tragically lost all of her limbs when her physician failed to properly diagnosis a septic infection. The jury awarded the patient $15 million in noneconomic damages, which was to be reduced to $750,000 under the statutory limitation. However, the trial court struck down the statute as-applied to the plaintiff.
A three-judge panel of the Wisconsin Court of Appeals (Dist. I) upheld the lower court’s decision. The court of appeals, however, determined the law was unconstitutional on its face, rather than as-applied.
Citing Ferdon, the court held that statutory caps must be “reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation in order to satisfy State equal protection guarantees.” The court further stated that not “all caps on noneconomic damages are unconstitutional,” but that the current limit was “arbitrarily selected.”
Many court watchers expect the case to be appealed to the Wisconsin Supreme Court, which will have the final say on the constitutionality of the law (at least for now.)
Andrew Cook is a Senior Counsel at Michael Best & Friedrich, LLP, and is the former Deputy Attorney General for the state of Wisconsin.