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Wisconsin Judge Says State’s Cap on Medical Malpractice Damages is Unconstitutional as Applied to Woman With Four Limbs Amputated

Medical Malpractice

Most states have caps on the amount of damages an injured plaintiff can recover in a medical malpractice lawsuit. The caps are usually placed on “non-economic damages” such as pain and suffering, emotional distress, and loss of enjoyment in life. In West Virginia, plaintiffs are limited to recovering no more than $250,000 in noneconomic damages, or up to $500,000 in certain cases, such as when the medical negligence results in serious, permanent disfigurement; the victim is left unable to perform self-care and life-sustaining activities; or in the case of wrongful death.

When a jury awards more than the law allows because the injury was so severe or the negligence so great, the defendants and their insurance companies can have the award reduced to the amount of the cap. In other words, the people on a jury in West Virginia may think the damages resulting from an injury are worth $5 million, but the insurance company can get that amount reduced to $250,000.

Caps on damages are pushed by doctors, hospitals, medical groups, insurance companies and chambers of commerce, on the grounds that “runaway juries” and “frivolous lawsuits” have caused physician liability insurance premiums to skyrocket and have forced doctors to practice “defensive medicine” to avoid lawsuits, causing the costs of health care to go up for everyone. Lately however, judges have questioned these rationales, finding that the legislative arguments don’t seem to have much basis in reality.

The latest court decision to question – in this case outright reject – medical malpractice damages caps comes from a Milwaukee County judge in Wisconsin. In the case of Mayo v. Wisconsin Injured Patients and Families Compensation Fund, a jury awarded $25.3 million to a woman who went to an emergency room with fever and acute abdominal pain but was not advised that she may have an infection that could be treated with antibiotics. She did in fact have an infection which became septic and required her to have all four limbs amputated.

The jury’s award included $15 million for pain and suffering and $1.5 million to the husband for loss of companionship. The defense requested that these damages be reduced to $750,000 in accordance with the state’s damages cap, but the judge refused to do it, finding “no rational justification” to deprive the plaintiff of the entire award. This claim, like other medical malpractice claims over $1 million, would be paid out of a state fund financed by insurance premiums and set aside for the purpose of paying large claims. This fund is currently valued at over a billion dollars.

The judge declared that paying this judgment would not have an impact on the fund that would require insurers to raise premiums. This judgment, he felt, was not out of sync with the severity of the injury, and reducing the amount of the judgment would neither properly compensate the victim nor have any affect on reducing overall health care costs. None of the arguments put forward to justify damage caps hold any water in this case, and the judge ruled it would be unconstitutional to apply the damage caps in this instance.

This case will most certainly be appealed by the defendants. It will be interesting to see what the higher courts rule, and just how far this case may go.

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