Wisconsin was one of the first states to reform its medical liability system, passing Wis. Stat. 655 in 1975 in response to the medical liability crisis of the era. The law was intended to reduce the premium burden on the state‚Äôs medical community, while preserving citizens‚Äô access to healthcare. It mandated a minimum limit of liability for healthcare workers of $200,000 per claim and $600,000 per year, beyond which the healthcare provider would have no personal liability. The state‚Äôs new patient compensation fund (PCF) ‚Äď also created through the statute ‚Äď would pay for judgments greater than this amount.
Wisconsin refined this legislation several times, creating a $1 million cap on noneconomic damages with the passage of Wisconsin Act 340 in 1985. Act 340 expired in 1991, but four years later, the Wisconsin Legislature revisited damage caps, resetting them at $350,000 and allowing for inflation. They also enacted a law barring the application of the joint-and-several-liability rule when recovering damages from defendants found to be less than 51 percent at fault. The updated rules for joint-and-several liability were a major victory for the state‚Äôs healthcare community.
In a 2005 ruling, the Wisconsin Supreme Court declared the state‚Äôs $350,000 noneconomic damage cap unconstitutional, saying it violated the equal protection provision of the state constitution. Lawmakers responded in 2006 with a re-write of the noneconomic damages cap, now setting it at $750,000 and widening the language to pass constitutional muster. Further reforms in 2011 discouraged plaintiffs from filing frivolous claims, improved rules of evidence and raised the standard for qualifying expert testimony, among other measures.
In July of 2017, a Wisconsin 1st District Court of Appeals ruled the state‚Äôs $750,000 cap on noneconomic damages is unconstitutional for imposing an illogical burden on injured patients, denying them equal protection. The decision is being appealed to the Wisconsin Supreme Court.
In 2018, the state‚Äôs highest court settled the Wisconsin 1st District Court of Appeals case challenging the state‚Äôs noneconomic damage cap. The Wisconsin Supreme Court affirmed that the state‚Äôs $750,000 cap on noneconomic medical liability damages is constitutional. The five-to-two decision in Mayo v. Wisconsin Injured Patients & Families Compensation Fund stems from a case filed by Ascaris Mayo, whose four limbs developed gangrene and had to be amputated after doctors failed to diagnose her with a septic infection. Mayo and her husband sued Wyatt Jaffe, MD, and physician assistant Donald Gibson, Infinity Health Care Inc., ProAssurance Wisconsin Insurance Co. and the Wisconsin Injured Patients & Families Compensation Fund for medical malpractice and failure to provide proper informed consent. The initial jury trial verdict awarded Mayo $25.3 million ‚ÄĒ $15 million of which were for noneconomic damages, while her husband received $1.5 million for loss of consortium and companionship of his wife. Both the trial judge and the Wisconsin Court of Appeals found the state‚Äôs noneconomic damage cap, citing no rational basis to link the amount of the current noneconomic damages cap to the Wisconsin Legislature‚Äôs purposes for enacting the cap. The Wisconsin Supreme Court ultimately sided with the state‚Äôs patient compensation fund, concluding that to overturn the noneconomic damage cap would invade the province of the legislature. ‚ÄúIn creating the $750,000 cap for noneconomic damages, the legislature undertook substantial investigative efforts to assure that any future legislation in regard to a cap would be constitutionally appropriate,‚ÄĚ wrote Chief Justice Patience Rogensack for the majority. ‚ÄúThe legislature carefully set out its objectives, stating that ‚Äė[t]he objective of the treatment of this section is to ensure affordable and accessible healthcare for all of the citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice.‚Äô‚ÄĚ