On October 3, 2014, Milwaukee County Circuit Court Judge Jeffrey Conen held the $750,000 statutory cap on noneconomic damages for medical malpractice claims was unconstitutional as applied to Ascaris and Antonio Mayo in Mayo v. Wisconsin Injured Patients and Families Compensation Fund (2012 CV 6272). While the defendants’ appeals are still pending, if Judge Conen’s ruling is affirmed, the Wisconsin Injured Patients and Families Compensation Fund (“the Fund”) will be responsible for approximately $16 million in noneconomic damages, and a new chapter will be opened in the law governing medical malpractice claims in Wisconsin.
The Mayo lawsuit alleged that the physicians failed to timely diagnose Ascaris Mayo with an infection, resulting in amputation of all four of her limbs. At trial, the jury found for plaintiffs and awarded approximately $25.3 million dollars, including $16.5 million in noneconomic damages for Mrs. Mayo’s pain, suffering, disability and disfigurement, and Mr. Mayo’s loss of society and companionship. These noneconomic damages are subject to a statutory cap limiting recovery for noneconomic damages to $750,000 in medical malpractice cases.
Prior to trial, the court denied plaintiffs’ motion seeking to declare the cap unconstitutional. After the trial, plaintiffs again challenged the cap’s constitutionality, arguing that the cap was unconstitutional “as applied” to Ascaris and Antonio Mayo. In an “as applied” challenge, the statute is presumed constitutional and challengers must prove beyond a reasonable doubt that the statute, as applied to them, is unconstitutional.
Judge Conen granted plaintiffs’ motion, finding the cap unconstitutional as applied to plaintiffs. In his analysis, Judge Conen considered the value of the Fund, which was around $1.08 billion in 2013. He noted its “profitability” would not be affected by paying the full verdict, which could be paid from the Fund’s 2013 investment income alone. Judge Conen thus declined to reduce the verdict pursuant to the statute and entered judgment in favor of the plaintiffs for the full verdict.
Generally, an “as applied” constitutionality challenge is more likely to be upheld than a facial constitutionality challenge. However, regardless of the Appellate court’s decision, the Mayo case will likely proceed to the Supreme Court. If the Supreme Court affirms and finds the cap unconstitutional as applied to the Mayos, similar challenges would likely follow in cases in which noneconomic damages exceed the statutory cap, raising additional questions of constitutionality. For each individual plaintiff presenting an “as applied” challenge, courts would have to decide whether the cap was constitutional and applicable, or unconstitutional and inapplicable. These decisions may face the same constitutional challenges previously raised, including violations of the rights to jury trial, certain remedy, equal protection, due process, and separation of powers.
In addition, numerous “as applied” challenges would undermine the express legislative intent of the cap. In establishing the current cap, the legislature considered actuarial studies, experiences of other states, and expert testimony. Courts are not in a position to thoroughly evaluate and assess the financial effect of excess noneconomic damage verdicts on the Fund. They are not privy to pending and anticipated claims, settlements, and verdicts paid. In addition, the defendant’s ability or inability to pay should not factor into an analysis as to whether or not the statute is constitutional as applied to a single individual, even when the Fund is the defendant.
Judge Conen’s decision explicitly states that it is “not meant to be precedential” or dictate the outcome of other matters. However, should the decision be affirmed, it will inevitably influence the course of future medical malpractice claims and likely be the impetus for a new case law regarding noneconomic damage caps.
John Reid is a partner in Cassiday Schade LLP's Libertyville, Milwaukee and Chicago offices. He litigates and tries civil litigation matters throughout Illinois and Wisconsin with a concentration in medical and dental malpractice and transportation related issues.