Wisconsin Supreme Court takes up challenge to legality of state's caps on medical malpractice payments

The more than $9.5 million award paid to a Milwaukee woman who lost all four of her limbs as a result of medical malpractice will not be enough to cover all of her future healthcare costs, her attorney told the state Supreme Court on Thursday. 

"These people didn't get enough money to cover their future medical bills," Daniel Rottier said in arguing that Ascaris and Antonio Mayo should be allowed to exceed the state's $750,000 cap on non-economic damages such as pain and suffering and loss of companionship. 

A Milwaukee County jury in 2014 awarded the couple $25.3 million — of which, $16.5 million was for non-economic damages — after it decided that staff at Columbia St. Mary's hospital erred in 2011 when it failed to inform Ascaris Mayo, then 50, that a simple antibiotic could be used to treat severe abdominal pain that later was discovered to have been caused by a Strep A infection.  

She was discharged from the hospital after spending nine hours in the emergency room and instructed to contact her gynecologist the next day. The condition worsened and the next day doctors at a second hospital discovered she had sepsis, which caused her organs to fail. The mother of four sons went into a coma for a month, which was followed by the amputations. 

Rottier is asking the court to strike down Wisconsin's $750,000 cap on non-economic damages, as an appellate court did last year. If the court allows the caps to survive, Rottier asked the justices to strike it down as it applies to the Mayos.

The state and its seldom-tapped $1.4 billion Injured Patients and Families Compensation Fund is urging the court to keep the cap in place in all cases, including the Mayos' claim. Fund lawyers argue that the strength of the state's healthcare system depends on keeping the cap in place. 

Lifting the cap as applied to the Mayos would result in other people with catastrophic injuries asking to also exceed the cap, lawyers for the fund and the state argued

Kevin St. John, a former deputy attorney general representing the fund, argued that "only Wisconsin guarantees plaintiffs full recovery of all economic damages" plus non-economic damages of up to $750,000.

Wisconsin physicians are required to carry $1 million of medical malpractice insurance and pay premiums to support the fund, which covers claims of more than $1 million.

Still, Rottier argued, that's not enough to make all injured patients whole.

Rottier explained that the money the Mayos received from the fund was used for past and future medical costs, attorney fees plus the expense of bringing the medical malpractice case to trial. Attorney fees and expenses cost about $2.4 million. 

The portion of the award that has been paid included a payment for impairment of earning capacity, although the "fund had an expert say there is no impairment of earning capacity for a 50-year-old African-American woman in Milwaukee with no hands and no feet."

When Chief Justice Patience Roggensack seemed surprised by the shortfall, Rottier explained that it is not uncommon for money from the pain and suffering portion of an award to actually be used to cover economic damages, such as medical bills.

"It's just a practical consequence of what happens," Rottier said. 

Supreme Court Oral Argument: Ascaris Mayo v. WI Injured Patients & Families Comp. Fund

During the hourlong hearing, Justice Daniel Kelly peppered Rottier with questions and repeatedly wondered whether a cap could be set at zero. If that was done, Kelly reasoned, there would be no argument about equal protection — that is, the constitutional guarantee that all people be treated the same.

If non-economic awards were "eliminated for everyone there wouldn't be an equal protection issue," Kelly said. 

Kelly, who was appointed to the court in 2016 by Gov. Scott Walker, compared the fund to an insurance company. "Insurance policies by their nature have limits," Kelly said. "Why should this be any different?"

Rottier argued that the cap is unconstitutional because the most severely injured, like Mayo, see their awards cut by the largest percentage. The Mayos have received less than 5% of the jury's non-economic award.

Rottier repeatedly argued that the fund, which was established in 1975, is financially stable and should be used to pay non-economic awards issued by juries. 

"We are arguing in a case where someone gets less than 5% at a time when the fund has surplus of $1`billion," Rottier said.

The surplus means that if every actual and anticipated claim were paid the fund would still have more than $1 billion.

He noted that juries rarely exceed the cap  — the Mayo case marks the first time the current cap challenged in appellate court, Rottier said, noting the cap pays only one or two claims a year.

St. John argued that is why the caps are needed  — to keep the fund strong. 

"Physicians told the Legislature they would not practice in Wisconsin if not for the cap," St. John said, referring to testimony provided before the caps were instituted in 1986. A prior cap of $350,000, which included adjustments for inflation, was struck down on a 4-3 vote as being arbitrary and violating the equal protection provision of the state constitution.

Justices Ann Walsh Bradley and Shirley Abrahamson, who participated in Thursday's hearing via telephone, voted to strike down the earlier cap. Roggensack was in the minority in that case. 

Court observers see little chance of the court declaring the current cap unconstitutional. The court, which is expected to decide the case this summer, is viewed as having five conservative judges and two — Abrahamson and Walsh Bradley — liberal jurists.