Ruling that Wisconsin’s $750,000 cap on medical malpractice claims is unconstitutional, an appellate court said Wednesday that a Milwaukee woman who lost all four limbs should collect the $16.5 million for pain and suffering awarded to her and her husband.
“We conclude that the statutory cap on non-economic damages is unconstitutional on its face,” Judge Joan Kessler wrote in the 19-page unanimous opinion by the three-judge First District Court of Appeals panel.
Kessler added that “Wisconsin’s cap on non-economic medical malpractice damages always reduces non-economic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.”
Wisconsin law caps non-economic damages in medical malpractice cases at $750,000 but does not put a ceiling on the amount that could be awarded for economic damages, such as medical costs, which in Mayo’s case was awarded at $8.8 million. That award and $750,000 has already been paid by the $1.3 billion state-managed medical malpractice insurance fund.
The case is expected to be appealed to the state Supreme Court.
Wisconsin has had various ceilings on medical malpractice damages since 1986. A $350,000 cap enacted in 1995 was struck down by the state Supreme Court in 2005 as being arbitrary and violating the equal protection provision of the state constitution. It was replaced a year later by the $750,000 ceiling.