A Milwaukee County circuit judge struck a blow for compassion and common sense last week when he narrowly ruled against the state’s medical malpractice cap and affirmed a $25.3 million jury award in the case of a Milwaukee woman who lost all four of her limbs.
Judge Jeffrey Conen said he was not striking down the 2006 state law that created a $750,000 cap on noneconomic awards for pain and suffering in malpractice cases, but held it shouldn’t apply in the case of Ascaris Mayo.
“Although the cap may be constitutional as applied to medical malpractice victims as a whole, there is no rational justification for depriving Mrs. Mayo, who is in her mid-fifties, limbless and largely immobile, and Mr. Mayo” of the entire award, according to news reports.
Judge Conen affirmed the entire jury award of $15 million for pain and suffering and $1.5 million to her husband, Antonio, for loss of companionship — an award that would have been reduced to $750,000 under the 2006 state law. The remainder of the jury award is for economic damages and health care expenses, which are not affected by the cap.
Mayo, a mother of four children, sought treatment at Columbia St. Mary’s Hospital in Milwaukee for a fever and stomach pains in 2011. While there was no finding of negligence in her treatment that day, the jury found she was not provided with “alternative medical diagnoses” that would have led her to pursue other treatment.
The next day she went to another hospital emergency room where she was diagnosed with septic infection. The damage was so severe that she later had all four of her limbs amputated.
Judge Conen wrote in his decision that the evidence in the case suggested that could have been prevented had medical staff offered her standard antibiotics when she first sought treatment.
“This is not a runaway verdict. It is certainly not outrageous, and no one could seriously argue that it is not in proportion to Mrs. Mayo’s injuries,” Conen said in his decision.
Unfortunately, lawyers for the medical profession and the state insurance fund that pays out malpractice damages will probably appeal the award to the Wisconsin Supreme Court and have it reduced to the $750,000 cap. Judge Conen tried to craft his decision narrowly to this one case, which may give it more chance of success before the high court.
Overturning the pain and suffering cap itself would seem unlikely given the conservative dominance of the high court today.
Judge Conen’s ruling upholding the jury award will no doubt be vilified as another case of judicial activism by the right, when it should be hailed as a sensible, compassionate decision.
The charge should be to the state Legislature to revisit the cookie-cutter, one-size-fits-all cap which was imposed in the name of “tort reform” amid dire warnings of doctors being forced to leave the state and health care costs soaring out of control. A dose of GOP antipathy toward state trial lawyers also factored in.
The fact is the malpractice claims have little to do with the overall costs of health care.
The fact is that the state’s medical malpractice insurance fund has soared to $1.15 billion — a huge amount.
The fact is that Wisconsin is the third lowest state in the country in per-capita payouts of medical malpractice amounts.
Whichever way the state Supreme Court falls on this, the medical malpractice cap should be taken up by the Legislature and either dropped altogether or raised to reflect some reasonable level of payment for pain and suffering by state residents who are injured when seeking medical treatment.
Legislators need only ask themselves one question when taking up this issue: Would I trade my four limbs for $750,000. The answer is, “No. Hell no.”