A jury ruled that neither the emergency physician nor the physician assistant who treated here were negligent, but that both failed to provide proper informed consent on diagnosis and treatment options. The patient was awarded $15 million in noneconomic damages and her husband, Antonio Mayo, was awarded $1.5 million for the loss of his wife’s companionship. Defendants, including the compensation fund, moved to have the award reduced to match the cap.
The trial court denied the motion ruling that, while the cap was constitutional, it was unconstitutional as it applied to this case.
Kessler and another judge on the appellate panel, Kitty Brennan, ruled that the cap was unconstitutional on its face. A third judge issued a concurring opinion that matched the original trial court’s opinion.
The Mayos said the cap was unconstitutional because they were denied due process and equal protection. Kessler and Brennan agreed.
Kessler described the cap as “arbitrary,” and wrote how it has varied in amount from $1 million, then down to $350,000 and then up to $750,000 in response to legislative expiration dates and judicial rulings.
They also ruled it denies equal protection by creating “a class of fully compensated victims and partially compensated victims” in the case of catastrophically injured victims such as Ascaris Mayo.
The WMS and the Litigation Center of the American Medical Association and State Medical Societies filed an amicus brief. The brief argues against that opinion and urges the state Supreme Court to review the case.
“The Court of Appeals’ decision—despite its stated justification of seeking to protect the rights of severely injured patients—would harm the unique benefits provided to all Wisconsin patients (including and especially the severely injured) by the state’s comprehensive medical liability system,” the brief states. “Elimination of the cap will harm the protections provided by the Wisconsin Injured Patients and Families Compensation Fund.”
The brief notes that Ascaris Mayo had received more than $8.8 million for past and future medical expenses plus future wage loss. Had her injuries occurred in another state or been the result of a car accident, “There is no guarantee that she would receive compensation sufficient to pay her past medical expenses.”
Legislative remedy may be needed
The court’s decision on whether it will review the case is expected by Thanksgiving, Rather said. If it decides to review, there will be a filing period followed by oral arguments and decision would need to be rendered before June 30 when the court’s current term ends.
If it decides not to hear the case or reaffirms the appellate decision, Rather said, the Wisconsin legislature would be faced with implementing a new cap, one that attempts to “withstand judicial scrutiny.”
Rather wouldn’t make a prediction on the outcome, but did note that there is a misunderstanding about noneconomic-damage caps that needs to be reversed.
“Far too often, the issue of the cap gets played out as patient versus physician and that it’s benefitting physicians at the expense of patients,” Rather said. “But, in reality, it’s the opposite. The cap protects the patient because it allows the (compensation) fund to exist.”