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Applicability of caps in certain situations questioned

In a decision filed Friday, Oct. 3, a Milwaukee County Circuit Court judge questioned the applicability of Wisconsin’s cap on noneconomic damages in extreme situations. While not questioning the legality of the cap in general, the Honorable Jeffrey A. Conen refused to apply the statutorily mandated cap to, in the Court’s view, the extreme facts of a particular case.

Wisconsin Statute section 893.55 limits the amount of noneconomic damages (e.g. pain and suffering) that can be recovered in a medical negligence case to $750,000. Neither the total amount of damages nor the amount of economic damages (e.g. past and future medical bills, lost wages) is capped.

In Mayo v. Wisconsin Injured Patients and Families Compensation Fund, et al., the plaintiff suffered amputations to all four limbs as a result of a septic Streptococcus A infection. The jury found that the defendants, an emergency department physician and a physician assistant, were not negligent in their care of the plaintiff, but that the defendants failed to provide the plaintiff with alternate diagnoses and options under the pre-2013 version of Wisconsin’s informed consent law. The jury awarded the plaintiff and her husband approximately $25.5 million in total damages, including $16.5 million in noneconomic damages.

By statute, the noneconomic damages award is required to be reduced to the statutory cap. However, the Circuit Court judge refused to apply the cap because, according to the Court, doing so under such extreme facts would not fit the legislative purpose behind the cap. Judge Conen cautioned that his decision is limited only to the extreme facts of this particular case, having previously denied a motion to have the cap declared unconstitutional as a whole.

Wisconsin’s current cap on noneconomic damages was enacted in 2006 based on detailed findings by the Wisconsin legislature. As noted in the statute, the cap on noneconomic damages is critical to ensuring affordable health care for the citizens of Wisconsin, preventing defensive medicine and ensuring the availability of professional liability insurance that is essential to retaining highly qualified and skilled physicians in Wisconsin. The statute balances these critical requirements with the necessity to fairly compensate those who suffer injuries as a result of medical negligence.

It is important to note that this decision does not impact the validity or applicability of Wisconsin’s cap on noneconomic damages in other cases. The Circuit Court’s decision also is subject to appeal. The Wisconsin Medical Society will continue to monitor this case and will update members accordingly.

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