Wisconsin Court of Appeals Holds Medical Malpractice Damage Cap on Noneconomic Damages Is Unconstitutional
The Wisconsin Court of Appeals, District 1, today decided Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2017 WI App ___, Appeal No. 2014AP2812 (July 5, 2017). It unanimously affirmed the circuit court’s decision awarding plaintiffs the full amount of a jury award of noneconomic damages even though the award vastly exceeded the medical malpractice statutory damage cap for such damages. The court majority held the cap was unconstitutional.
In 2014, a Milwaukee County jury awarded plaintiffs Asacaris and Antonio Mayo approximately $25.3 million dollars, including $16.5 million in noneconomic damages for Mrs. Mayo’s pain, suffering, disability and disfigurement, and Mr. Mayo’s loss of society and companionship. Those noneconomic damages are subject to a statutory cap limiting recovery for noneconomic damages to $750,000 in medical malpractice cases, Wis. Stat. § 893.55(4)(d)1 (passed in 2005). After trial, the circuit court determined that the cap was not facially unconstitutional but was unconstitutional as applied to the jury award because it violated the Mayos’ rights to equal protection and due process. The circuit court noted that applying the cap would result in a reduction of the jury award by over 95%. The circuit court declined to reduce the verdict and entered judgment for the plaintiffs for the full verdict amount.
All parties appealed. In 2016, the Wisconsin Court of Appeals certified the case to the Supreme Court for a determination of the constitutionality of the damage cap. The Supreme Court, however, denied certification.
Today’s Court of Appeals majority opinion affirmed the circuit court although on different grounds. The majority, Judges Kessler and Curley, held the cap on noneconomic damages in medical malpractice actions is unconstitutional on its face. The majority explained that the cap imposed an unfair burden only on catastrophically injured patients, thus denying them the equal protection of the laws. The majority concluded that because Wisconsin’s cap always reduces noneconomic damages only for the class of the most severely injured victims (in which a jury has awarded damages exceeding the cap), yet always allows full damages to the less severely injured malpractice victims, the cap denies equal protection to that class of malpractice victims whose adequate noneconomic damages a factfinder has determined are in excess of the cap.
The majority noted that the record did not demonstrate any correlation between medical malpractice premiums and caps on noneconomic damages. Because the majority held the statutory cap is facially unconstitutional, it did not reach the question of whether the cap was unconstitutional as applied to the plaintiffs.
A concurrence by Judge Brash disagreed with the majority that the cap was facially unconstitutional but agreed with the circuit court that the cap was unconstitutional as applied to the plaintiffs.
The defendant will almost certainly seek review by the Supreme Court. If this decision is not reversed, it will likely have a dramatic effect on medical malpractice litigation in this state. For the last 12 years, the damage cap was a major disincentive for potential plaintiffs to file claims. Absent the cap, the number of medical malpractice actions will likely increase.