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After Quadruple Amputee Verdict, Wisconsin Rules Cap on Non-Economic Damages Unconstitutional

An appeals court in Wisconsin ruled in favor of overturning the state’s $750,000 non-economic damages cap, with Judge Joan Kessler saying that a “cap on non-economic medical malpractice damages always reduces non-economic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.”

The case was brought forth by Wisconsin’s state medical malpractice fund, an entity that is responsible for the payment of malpractice settlements and judgements against state-run facilities. The appeal came after a Milwaukee mother of 4 suffered from an infection that put her into septic shock and a coma, leading to amputation of all 4 limbs. The woman, Ascaris Mayo, was only 57 years old in 2011 when the missed diagnosis of a Strep A infection forced her to become a quadruple amputee. In 2014, a jury awarded her $8.8 million in economic damages, along with $16.5 million for pain and suffering. Under previous Wisconsin law, she would have been able to collect the $8.8 million in economic damages, but only $750,000 for pain and suffering.

It is expected that the state medical malpractice fund will attempt to take the appeal before the Wisconsin Supreme Court, but the victory of Mrs. Mayo in Wisconsin is a step in the right direction for all injured victims and those of us who fight for patients’ rights.

Currently, legislation is pending in the Senate that seeks to limit non-economic damages (or pain & suffering) to $250,000 at the federal level. This would override any state law with pre-existing caps (such as Wisconsin’s $750,000 cap), as well as those who have chosen not to impose a cap. The legislation, called H.R. 1215, is still pending a Senate vote after narrowly passing the House in late June.