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Appeals court strikes down cap on malpractice awards

Monday, July 10, 2017   (0 Comments)
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July 6, Wisconsin Health News

An appeals court struck down a state law Wednesday capping the amount of money that injured patients can receive for some malpractice claims.

The 1st District Court of Appeals ruled that a state law capping awards for noneconomic damages at $750,000 was unconstitutional. Noneconomic damages are intended to compensate for pain and suffering.

Judge Joan Kessler, who penned the majority opinion, wrote that the law imposes "an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws."

The case involves Ascaris Mayo, who lost her limbs after she wasn't notified she had an infection after visiting a Milwaukee-area emergency room in May 2011. Mayo and her husband sued, and a jury awarded them $16.5 million for noneconomic damages. 

The state's Injured Patients and Families Compensation Fund, which is funded by hospitals and doctors and covers large medical malpractice claims, moved to reduce that amount to the $750,000 limit. The Mayos challenged that.

Hospitals and doctors in the state were concerned about the Wednesday's ruling. Wisconsin Hospital Association CEO Eric Borgerding expects the state's Supreme Court to review the decision. 

"We believe the court will uphold the well-supported and bipartisan public policy balance set by the Legislature to help ensure accessible healthcare in Wisconsin," he said in a statement.

A spokeswoman for the Office of Commissioner of Insurance, which provides administrative staff to the 13-member board, didn't respond to a request for comment on whether the state would appeal the decision.

Dr. Noel Deep, Wisconsin Medical Society president, said the decision"endangers the long-term solvency of the Injured Patients and Families Compensation Fund and its ability to adequately compensate patients." He warned that it could incentivize "attorneys to file questionable cases in hopes of astronomical jury awards seen in other states without caps."

Dan Rottier, an attorney for the Mayos, called the society's claim regarding fund's solvency "ridiculous." The fund reported a net position of $879 million as of June 2016, according to an annual report.

Rottier said that pursuing such cases are difficult because "they're extremely expensive...these cases are not taken lightly.

Rottier said the court's decision has "implications for a few cases every year where there's horrendous injuries...it's those cases where the inequity is the most severe." He noted that applying a cap in this case would have reduced the jury award by more than 95 percent.

"I would call it 5 percent justice instead of 100 percent justice," he said. 


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