In a June 27, 2018 opinion, the Wisconsin Supreme Court overruled a Milwaukee County Circuit Court judge, a state appellate court, and a 2005 Wisconsin Supreme Court Decision when it held that caps on non-economic damages are constitutional in medical malpractice cases. This 5-2 decision is the latest result of a long-standing constitutional battle in Wisconsin between legislators and the judiciary over whether statutory caps on non-economic damages in medical malpractice cases violates equal protection laws.
Under Wis. Stat. § 893.55 (4)(d)1, effective April 6, 2006, limits on total non-economic damages in medical malpractice cases was set at $750,000. The legislature increased the cap from $350,000 after the Wisconsin Supreme court held in 2005 that a $350,000 cap on noneconomic damages in medical malpractice cases was unconstitutional because it was not rationally related to the legislative objective of compensating victims fairly, lowering medical malpractice insurance premiums, lowering overall healthcare costs, ensuring quality health care, or preserving Wisconsin’s Patient’s and Families Compensation Fund. The cap does not affect economic damages such as medical expenses and lost wages, but focuses on limiting damages for pain and suffering and loss of companionship.
According to the Wisconsin legislature, the purpose of this non-economic damages cap is to “ensure affordable and accessible health care for all citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice.” The legislative cap is generally supported by doctors, hospitals, and the insurance industry. Proponents of a non-economic damages cap also argue that it is necessary in order to preserve Wisconsin’s “Patients and Families Compensation Fund.” This unique Fund was established by legislative enactment in 1975. The Fund provides excess medical malpractice coverage to Wisconsin health care providers that pay into it. This Fund guarantees payment to those injured by medical malpractice because it pays any claims in excess of a health care provider’s insurance coverage amount.
The recent Supreme Court decision overturned a 2017 Court of Appeals decision that held a cap on non-economic damages violated equal protection on its face. This case involved Ascaris Mayo, a 50 year old woman who lost all four of her limbs after medical personnel failed to diagnose an infection. The jury awarded Mayo and her husband $16.5 million in non-economic damages. The case was appealed to the Supreme Court, which reversed the verdict, holding that Ferdon “erroneously invaded the province of the legislature” and that the $750,000 cap on non-economic damages was “constitutional both facially and as applied to the Mayos.”
The two judges who dissented in Mayo noted that this holding denied the Mayos 95 percent of the jury award, and that the only difference between Mayo and Ferdon was that the malpractice non-economic damages cap was set at $750,000 rather than $350,000. They further opined that raising “the cap by $400,000 does not fix the fundamental constitutional problems with the damage cap that the Ferdon court identified.” The dissent in Mayo may be a foreshadowing of a continued battle over the constitutionality of non-economic damage caps if the makeup of the Court shifts. For now however, it appears that for the first time in over a decade, the judicial and legislative branches have formed a unified front on this issue.
 Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund 701 N.W.2d 440 (WI 2005).
 Wis. Stat. § 893.55 (1d)(a).
 Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 901 N.W.2d 782 (WI Ct. App., 2017).
 Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 No. 2014AP2812 WL 3132486, *1 (WI June 27, 2018).
 Id. at 20.
This information is general in nature and should not be construed for tax or legal advice.