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2115, 04 Oct 14


Judge Rules Medical Malpractice Cap Does Not Apply

I’m having a hard time seeing the judge’s rationale here.

A Milwaukee woman who lost all four of her limbs as a result of medical malpractice should collect her entire $25.3 million jury verdict, a Milwaukee County circuit judge ruled in declaring a state-mandated $750,000 cap on medical malpractice court awards unconstitutional in her case.

“This is not a runaway verdict. It is certainly not outrageous, and no one could seriously argue that it is not in proportion to Mrs. Mayo’s injuries,” Judge Jeffrey Conen wrote referring to the July jury award to Ascaris Mayo, a 53-year mother of four who lost her limbs after a blood infection went undiagnosed.

The Milwaukee County jury award included $15 million for her pain and suffering and $1.5 million to her husband, Antonio Mayo, for loss of companionship. Conen’s order rejects a defense request that he cut the pain and suffering and loss of companionship awards from $16.5 million to $750,000. The remainder of the award is for economic damages, such as health care expenses, and is not affected by the cap.

Conen’s 21-page decision released late Friday applies only to the Mayo case and does not strike down the 2006 statute that created the $750,000 cap on noneconomic awards, for such things as pain and suffering.

“Although the cap may be constitutional as applied to medical malpractice victims as a whole, there is no rational justification for depriving Mrs. Mayo, who is in her mid-fifties, limbless and largely immobile, and Mr. Mayo” of the entire jury award, Conen wrote.

The judge’s decision seems completely arbitrary because he feels bad for this woman’s tragic circumstances. The law establishing the cap is absolute. Either it is constitutional or it is not. It is not up to a judge to waive it for individuals as he deems fit. I suspect that the judge’s ruling won’t survive appeal.


2115, 04 October 2014



  1. Recess Supervisor

    And I suspect the judge perceives the arbitrary action in the other direction – namely, that the legislature established a limit on damages that is arbitrary and is in no way connected to the individual circumstances of a malpractice case. In that sense, the law is no way absolute; it’s quite possible a court could rule that the principle behind the law is constitutional but that the dollar amount is not.

  2. Owen

    By definition a cap is arbitrary. To say that a cap does not apply in this one case because the judge thinks the victim deserves more is to render the cap utterly meaningless. And that invalidates the law as a whole – despite what the judge professes. And if this cap is unconstitutional because it is an arbitrary restriction, then wouldn’t that make all caps unconstitutional?

  3. purplepenquin

    If money = speech, then a pre-determined limit on damages is akin to suppression of free speech.

  4. Robert

    If that’s the case, you should go sue your boss at Burger King. After all, since you moved from fry cook to cashier, and didn’t get a raise, that’s denying free speech and stuff.

    Idiot druggie.

  5. Steve Austin

    I always wonder what will happen to the trial lawyers assuming Obama gets his way and Obamacare is allowed to destroy private health insurance in favor of government run healthcare.

    How can you run things efficiently on behalf of the people and get care to, you know, all people who need it, yet at the same time have the government (who is immune from suit in many circumstances) pay out $3 to $300 million dollar jury awards for malpractice.

  6. Recess Supervisor

    I get your point, Owen. (And thanks for the response.) Where I think an argument for divergence exists is whether the cap bears any rational relationship to the specific injury. This cap, for instance, treats all material facts surrounding the case as irrelevant – the specific nature of the injury, the degree to which the doctor’s behavior may have been negligent, etc.

    So a doctor screws up and she loses all her limbs. Should the legislature be able to restrict the courts to treating that woman no differently than someone who may have lost one leg? A foot? Suffers only from occasional pain in an extremity but is otherwise functional?

    To me, I think that’s where the grey area exists. I’m not certain how/where one draws those lines, but I do think it’s a plausible question for the courts to explore.

    Also Steve, it’s worth noting that this settlement, which is extremely rare in its magnitude, wouldn’t even dent the principal in the Patients Compensation Fund. The fund currently holds over a billion dollars in assets – the fund could pay the settlement out of this year’s earnings and still come out ahead on the year. Now, if these size settlements were routine (or for that matter, were ever routine – and they weren’t), or if the Patients Compensation Fund didn’t exist – perhaps this would be a matter of greater urgency. As it were, these caps were a fine example of the work product that you get when a political party (Republican or Democratic, they’re both guilty) creates a straw man to attack rather than address an actual problem.

  7. Steve Austin

    RS–the problem is that while we all feel in this specific case the cap might be too low, if you eliminate or raise the cap it does two things:

    a) Raises health care costs on all of us
    b) Sets a precedent for a future jury and plaintiffs attorneys. If this case was worth $25 million, then the woman who claims the plastic surgeon did a bad boob job figures her pain and suffering should be worth $3 million.

    I’m all for significant compensation for people who suffer some really bad things. It is needed as both compensation for the victim and as deterrent against future malpractice. Unfortunately guys like John Edwards and other plaintiffs attorneys have abused the system for lesser cases bringing us to the point we are at today.

    Until we installed some tort reforms here in Wisconsin, Louie Butler and Doyle were setting us up to be a trial attorney haven. Bring your cases to WI and win untold millions.

  8. Recess Supervisor


    Thanks for the response. I’ll choose to avoid hypotheticals – I can’t attest as to what Doyle and Butler would have or could have done in the political climate of the late ’00s. But what we do know is that the world to which you’re alluding is not the world that existed within medical malpractice before the enactment of these limits. If it were, I’d agree with you 100 percent. But to my mind, this was always a bit of a solution in search of a problem.

    I think what the evidence tells us all is that in the end, insurance companies aren’t the demons that everyone makes them out to be. I know Democrats love to beat on them constantly, but their profit margins are pretty low and by and large, their marketplace is pretty competitive. It’s pretty easy (I think) for people and businesses to comparison shop for health insurance, especially given federal and state requirements regarding uniformity of benefits. The real driver of health care costs in the U.S. are the actual fees charged by health care providers and pharmaceutical companies, and the fact that we allow patients in end-of-life situations to consume a ton of really expensive care on everyone else’s dime, and for no real benefit to society.

    The top 5 percent of health care spenders consume half of all the resources in the U.S. That’s a cost that everyone else bears. Yet a lot of western societies don’t have that same sort of care-at-all-costs mentality. Do you think that trying to ratchet that down would be a worthwhile consideration? It would seem that the potential for savings would be far, far greater.

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