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9/27/2017 » 9/29/2017
2017 PLDF Annual Meeting

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Brett A. SmithFee, Smith, Sharp & Vitullo, LLP, Dallas, TX
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Member Achievement and Case News: Featured

WI: Med Mal Damages Cap is Unconstitutional

Tuesday, July 11, 2017   (0 Comments)
Posted by: Tom Jensen
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Patient suffered catastrophic injury following an untreated septic infection, which required amputation of all her limbs. She had visited the hospital ER complaining of abdominal pain and fever. PA included infection in the differential diagnosis. Neither he nor the attending physician informed patient of available treatment (i.e., antibiotics) and she was released. Next day at another ER her condition was discovered, but it was too late to prevent the outcome. Jury awarded $15 million in noneconomic damages. Defendants moved the circuit court to reduce the award to $750,000 per the damages cap statute.  In Mayo v. Wisconsin Injured Patients and Families Comp. Fund, 2017 WL 2874614 (Wis. App. July 5, 2017) the appeals court affirmed the circuit court's ruling the statute was unconstitutional. Reviewing the legislative purposes of the act, the court found the evidence "indicates that the existence or non-existence of a noneconomic damages cap has no demonstrably consistent effect on physician retention anywhere. Data demonstrates that many states with no caps on noneconomic damages actually have higher physician retention rates than Wisconsin. As for the argument the cap prevents "defensive medicine" the court noted "data suggests that the existence of noneconomic damages caps may actually increase the risk to patient safety." It also noted that caps have shown to have no noticeable effect on malpractice insurance premiums. Thus the statute is an arbitrary act that violates the constitution's equal protection clause.

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