Tag Archives: Wisconsin

Wisconsin Supreme Court Reverses Circuit & Appellate Courts, Rules State’s Noneconomic Damage Cap Constitutional

On June 27, the Wisconsin Supreme Court ruled that the state’s $750,000 cap on noneconomic medical liability damages is constitutional.

“Today’s Court decision preserves Wisconsin’s balanced medical liability system that has been instrumental in attracting physicians to communities across Wisconsin, while providing assurance to injured patients that they will receive payment for the full amount of a jury’s award of medical expenses, lost wages and other economic losses,” said Eric Borgerding, Wisconsin Hospital Association president and chief executive. “Enacted with bipartisan support and signed by Gov. Doyle in 2006, Wisconsin’s balanced system includes a unique guarantee of a full and uncapped payment of awarded economic damages, as well as capped, subjective noneconomic damages. As Wisconsin continues to work to address current and future physician workforce shortages, that balanced medical liability system is just as important today as it was in 2006.”

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 in circuit court found that neither Jaffe nor Gibson was negligent, but that both failed to provide Mayo with proper informed consent about her diagnosis and treatment choices. She was awarded $25.3 million — $15 million of which were for noneconomic damages, while her husband received $1.5 million for loss of consortium and companionship of his wife.

After the verdict, the Wisconsin Injured Patients & Families Compensation Fund filed a motion to reduce the noneconomic portion of the jury award to the $750,000 statutory cap on noneconomic damages imposed by state law. The Mayos responded by moving for entry of judgment on the verdict on the grounds that the application of the cap would violate their constitutional rights, claiming the noneconomic damage cap is facially unconstitutional because it violates the equal protection rights of catastrophically injured patients, specifically arguing that there is no rational basis linking the amount of the current noneconomic damages cap to the Wisconsin Legislature’s purposes for enacting the cap.

The circuit court ruled that the cap was not facially unconstitutional but agreed that it was unconstitutional specifically as applied to the Mayos because it violated their right to equal protection and due process. The court ruled that application of the cap would reduce the Mayos’ jury award by 95 percent; there is no rational basis to deprive Mayo of the money the jury found necessary to compensate her for her injuries; reducing the jury award wouldn’t further the cap’s purpose of balancing affordable healthcare with adequate compensation to malpractice victims; the Wisconsin Injured Patients & Families Compensation Fund could afford to pay the award; and applying the cap in Mayo’s case would not service the legislative purpose of “policing high or unpredictable economic damage awards.” The Wisconsin Injured Patients & Families Compensation Fund appealed that ruling.

In 2017, a three-judge Wisconsin Court of Appeals unanimously affirmed the lower court’s decision.

“Here, the $750,000 cap on noneconomic damages has the practical effect of imposing devastating costs only on the few who sustain the greatest damages and creates a class of catastrophically injured victims who are denied the adequate compensation awarded by a jury, while the less severely injured malpractice victims are awarded their full compensation,” wrote Judge Joan Kessler for the unanimous three-judge panel. “We are not concluding that all caps on noneconomic damages are unconstitutional. We can only conclude that the amount of this cap was arbitrarily selected because, based on the record before us, it is unrelated factually to the goals of the statute of which it is a part.”

The appellate decision was again repealed, and the Wisconsin Supreme Court sided with the state’s patient compensation fund, concluding that to overturn the noneconomic damage cap would invade “the province of the legislature.”

“In 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,” wrote Chief Justice Patience Rogensack for the majority. “The legislature carefully set out its objectives, stating that ‘[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.’

“The Mayos were treated the same under the cap as any other persons for whom the jury has awarded noneconomic damages in excess of $750,000,” Rogensack continued. “The cap applies regardless of how much in excess of $750,000 the award; how drastic the injury suffered; the gender, age, or race of the plaintiff; or the extent of a healthcare provider’s culpability. The Mayos certainly are very sympathetic plaintiffs because of the severe injuries that Ascaris Mayo has suffered. However, were we to construe the cap based on our emotional response to her injury, we would be substituting our policy choice for that of the legislature.” We predict we will see medical malpractice insurance in Wisconsin continue its downward pricing trend with this latest court ruling.

Wisconsin Repays Fund that Keeps Medical Malpractice Rates Low

side note: This is a news story that caps the almost five-year saga where the Wisconsin Medical Society litigated for the return of $233 million the state took from the Wisconsin Patient Compensation Fund to balance its 2007 budget. A patient compensation fund is a state-run fund that the healthcare community pays into to keep the state’s medical malpractice insurance rates affordable.

Gov. Scott Walker says the state of Wisconsin has repaid a medical malpractice fund $233 million after a raid in 2007 done to help balance the budget.

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Wisconsin Ponders Informed Consent

Side Note: The Wisconsin Supreme Court is currently reviewing a case that challenge’s notions about informed consent. While we have previously discussed here the concept of informed consent and stressed that it is not merely getting a signature on a consent form, it bears repeating that informed consent is a process and a conversation. However, that said, we fear that the state of Wisconsin may make it an infinite conversation.

The current case involves a physician, Therese J. Bullis, MD, who made a diagnosis of Bell’s Palsy in the ER for patient Thomas Jandre. The patient later had a stroke. Dr. Bullis was not found negligent for the diagnosis in 2008, but she was found liable for not providing proper informed consent. In 2010, an appellate court upheld this decision. The appellate court said that the physician is not only responsible for presenting information related to the diagnosis made, but should also present what “… a reasonable person in the patient’s position [would] want to know in order to make an intelligent decision with respect to the choices of treatment.”

This poses a strange situation. It throws the doors wide open as to the scope of informed consent. No longer would a physician be required to discuss information just pertaining to the diagnosis made, it seems that physicians would need to include information pertaining to diagnoses not made, as well.

Having to uphold this new level of informed consent would not only put an extraordinary burden on physicians, but many feel that it would contribute to an even higher level of defensive medicine practiced and it would result in more unnecessary tests being ordered to avoid potential medical malpractice lawsuits.

Contributing to this case, Wisconsin has a complicated history of informed consent cases and rulings. Read the article below for further details and we will keep you posted on the developments in this case as they happen. We here at MyMedicalMalpracticeInsurance.com understand that Wisconsin physicians don’t want to have to use their Wisconsin liability insurance. We can only hope that the Wisconsin Supreme Court will make a reasonable ruling and protect Wisconsin physicians from further medical liability exposure.

Are you a physician who would like to lower your Wisconsin liability rates? To see if we can help, complete our quote request today.

Wisconsin high court weighs responsibilities on informed consent
By Alicia Gallegos
Posted Apr 25, 2011 on amednews.com

Physician Getting Informed ConsentThe Wisconsin Supreme Court is reviewing a lower court’s decision finding a physician negligent for failing to inform a patient about a stroke test after diagnosing him with a condition marked by stroke-like symptoms.

The case raises questions about the scope of informed consent and how much treatment information doctors should provide about conditions for which patients are not diagnosed. Experts say the high court’s ruling could lead to unnecessary health information being given to patients and doctors ordering unneeded tests to avoid lawsuits.

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Wisconsin SC reverses bystander's award for emotional distress

side note: WISCONSIN DOES NOT ALLOW DAMAGES FOR WITNESSING MALPRACTICE: The Wisconsin Supreme Court reversed a bystander’s medical malpractice award for emotional distress, ruling that the state’s medical malpractice law does not allow bystanders to seek damages for emotional distress. The high court’s 5-2 decision tossed out a lower court’s $200,000 award to a father who watched one of his twin sons die during birth in 1998. The justices noted that the state medical malpractice law makes no mention of allowing for emotional distress claims by bystanders.

by Chris Rizo

MADISON, Wis. The Wisconsin Supreme Court on Friday ruled that the state’s medical malpractice law does not allow bystanders to seek damages for emotional distress.

The high court’s 5-2 decision tossed out a lower court’s $200,000 award to a father who watched one of his twin sons die during birth in 1998.

A trial, Milwaukee Circuit Court Judge John Franke in 2003 awarded Gregory Phelps of Pewaukee, Wis., the damages as part of a $990,000 wrongful death and medical malpractice case his family won.

Phelps’s wife was being treated at St. Joseph’s Hospital in Milwaukee by an unlicensed resident physician. The other twin, Kyle, survived.

Gregory and Marlene, along with their two surviving children, Kyle and Caroline, sued Dr. Matthew Lindemann and his insurer, Physician’s Insurance Company of Wisconsin, St. Joseph’s, St. Joseph’s insurer, and the Affiliated Hospitals entity, alleging negligence, loss of society and companionship, wrongful death and negligent infliction of emotional distress. Continue reading