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Appeal Filed in Wisconsin to Test Constitutionality of Medical Malpractice Cap on Damages

Earlier in 2014, a Milwaukee County jury awarded nearly $25 million to Ascaris Mayo, a 53-year old mother of four who lost all four limbs due to medical malpractice. The award included approximately $15 million in non-economic damages for the woman's pain, suffering and disability and her husband's lost of consortium. Although Wisconsin law caps non-economic damages at $750,000 for patients injured by malpracice, the trial court judge later ruled that the law was unconstitutional as applied to the facts of this case and upheld the jury's decision.

On December 4, 2014, a Notice of Appeal was filed in the case to challenge the trial court's ruling that the cap should not apply to this case. Given the magnitude of the award and horrific nature of the injuries in the case, it would seem likely that this case will ultimately make its way to the Wisconsin Supreme Court.

Wisconsin enacted a number of medical malpractice "reforms" years ago at the behest of the healthcare and insurance industry due to a presumed medical malpractice crisis. Although the evidence of a crisis was lacking, the impact of these "reforms"has been clear: financial responsiblity for harmed caused by malpractice has been shifted from the healthcare and insurance industry to innocent parties, i.e., the patient, the patient's health insurer, and the taxpayer.

In Wisconsin, injured patients and their families now have a difficult time finding an attorney who will handle a medical malpractice case. Noneconomic damages are capped by the legislature as are the fees that attorneys can earn in such cases. Malpractice cases are very expensive to pursue and come with a high risk of loss as juries side with the defendant healthcare provider approximately 90% of the time. Under these circumstances, attorneys are not willing to handle cases they otherwise would, and this is reflected in the decrease in the number of medical malpractice cases filed in Wisconsin. In 2013, for example, only 140 medical malpractice cases were filed in Wisconsin, which represents a 50% decrease from the number of malpractice cases filed in 1999.

Regardless of how the appellate courts decide the Ascaris Mayo case, our lawmakers need to keep in mind that medical malpractice "reforms" do not save money; instead, they simply determine who will be responsible for paying for the harm that has already been caused by poor care--will it be those whose negligent conduct caused the harm, or will it be innocent parties?

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