Milwaukee Judge Deems Medical Malpractice Caps Unconstitutional
Whibbs & Stone, Attorneys at Law

Milwaukee Judge Follows Florida’s Lead: Holds Medical Malpractice Caps Unconstitutional

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In October of this year, a judge in Milwaukee County Circuit Court held that it would be unconstitutional to apply the state’s cap on noneconomic damages for medical malpractice in the case of Mayo v. Wisconsin Injured Patients and Families Compensation Fund. The plaintiff in the case, Ascaris Mayo, had reported to an emergency room with fever and abdominal pain. She was treated for uterine fibroids and sent home, without being informed of the possibility of an infection which could be treated with antibiotics. Her pain worsened, and she reported to a different emergency room the next day. There, she was diagnosed with an infection that had become septic, and she had to have all four limbs amputated to save her life.

Ms. Mayo won her medical malpractice lawsuit, and the jury awarded her $25.3 million, which included $16.5 million in “noneconomic damages” for her pain and suffering and loss of companionship with her husband. The defendants moved to have that portion of the award reduced to $750,000, which is the state’s cap on noneconomic damages in medical malpractice cases. The judge refused to go along with this however, holding it would be unconstitutional to apply the caps in this instance. The judge knocked down all the arguments lawmakers hold out for damages caps, such as limiting frivolous lawsuits and “runaway juries,” controlling health care costs and maintaining physician insurance premiums at a practical level. In the court’s well-reasoned opinion, none of these arguments bore any rational relationship to the case at hand or justified reducing the jury award for the tragic harm which befell Ms. Mayo.

This decision is reminiscent of the Florida Supreme Court’s opinion last March in the case of Estate of McCall v. U.S. The court there held that Florida’s cap on noneconomic damages for medical malpractice is unconstitutional when applied to a wrongful death case. Like the Milwaukee judge, the justices of the Florida Supreme Court held that the state’s reasons for capping damages bore no rational relationship to the law itself and violated the rule of equal protection of the law. The court went into great detail in examining the legislative history of the Florida Wrongful Death Act, and seriously questioned whether a healthcare crisis in the insurance industry every really existed or was only a pretext used by the people pushing for “tort reform.”

Ironically, damages caps affect most severely the malpractice victims with the most serious injuries who are most in need of compensation beyond these arbitrary caps. Hopefully, these cases will set valuable precedents and encourage courts in other cases to look closely at caps on damages to see whether they actually serve valid purposes and serve the interests of justice, or whether they unconstitutionally infringe on the rights of injury victims and their families.