Wisconsin’s burgeoning $1.4 billion insurance fund for doctors and state-mandated caps on damages in malpractice cases will go on trial Thursday when the state Supreme Court wrestles with the question of whether a woman who lost all four limbs to malpractice should collect millions of dollars for pain and suffering.
The narrow question before the seven justices is whether Ascaris Mayo, who at age 50 had all four limbs amputated as the result of medical malpractice, should receive the full $25.3 million that a Milwaukee County jury awarded her and her husband in 2014.
At issue is the $16.5 million awarded to the Milwaukee couple for pain and suffering and the loss of companionship — the portion known as non-economic damages. The remainder of the award is for economic damages, such as past and future medical and related costs.
The defendants, led by the state’s mammoth Injured Patients and Families Compensation Fund, argue the non-economic award should be limited to $750,000, the state-mandated cap on non-economic damages in medical malpractice cases. The health of the $1.4 billion fund and much of Wisconsin’s health care system is dependent on keeping the caps in place, they argue.
The Mayos argue the cap is unconstitutional and that it punishes the most severely injured patients like Ascaris Mayo — a mother of four who was an active community and church member and played numerous musical instruments.
The case, which will be argued Thursday, has attracted widespread attention. More than a dozen groups, including those representing doctors, lawyers, insurance companies and businesses, have joined in friend of the court briefs that have flooded the justices’ chambers.
Attorney General Brad Schimel is going so far as to ask the Supreme Court to make the cap bullet-proof.
The case started in 2011 when Ascaris Mayo went to Columbia St. Mary’s Hospital in 2011 complaining of severe abdominal pain, a rapid heartbeat and a fever.
Medical personnel did not diagnose her Strep A infection — the kind that causes strep throat — which ultimately led to septic shock and sepsis. She was not offered antibiotics to treat the infection. Instead, she was discharged after nine hours and told to contact her gynecologist.
The following day, she went to a second hospital where doctors correctly diagnosed her condition. By then it was too late.
“Her sepsis went unchecked, resulting in a ‘medical tsunami’ making nearly every organ fail and causing dry gangrene in her extremities,” Mayo’s attorney, Susan Tyndall, wrote in a brief. Mayo was comatose for about a month and “gangrene caused her extremities to ‘mummify,’ turning them hard, brittle and black.”
A jury in 2014 did not find negligence. Rather, they found that Wyatt Jaffe and Donald Gibson, the physician and physician’s assistant who treated her at Columbia St. Mary’s, failed to tell her about the availability of antibiotics, Tyndall noted.
Milwaukee County Circuit Judge Jeffrey Conen upheld the overall constitutionality of the cap but ruled the Mayos should collect the full jury award because the cap was unconstitutional as applied in the Mayo case.
The Mayos, for example, will receive less than 5% of the money for non-economic damages that the jury said they deserved if the court allows the caps to survive.
Proponents say the caps and the strength of the state Injured Patients and Families Compensation Fund fund are a reason that high-quality physicians stay in Wisconsin. Besides, they argue, Wisconsin malpractice victims are guaranteed to receive every dime awarded them for economic damages — that is, past and anticipated costs for medical care and related treatment.
“This is the only state where every cent for economic damages” is guaranteed, Rather said. Physicians must carry $1 million in malpractice insurance and the state-managed fund covers all economic damages above that amount.
The fund has paid the Mayos’ $9 million economic award plus $750,000 for pain and suffering. About $2.4 million went to legal fees and expenses, Rottier said.
“The cap is an integral part of a comprehensive and carefully balanced system the Legislature began constructing in 1975 to ensure the affordability and availability of quality health care,” Kevin St. John, the fund’s attorney, wrote in a Supreme Court brief.
Cap opponents argue the fund has become an embarrassment of riches and could cover any potential damage awards even if the cap were lifted. The fund is sitting on a $1 billion surplus, meaning that if it paid every pending and anticipated claim it would still have that amount in the bank, state records show.
In 2016 just two people were paid by the fund and only one person was paid last year, according to state statistics cited in End’s trial lawyer’s brief.
Rather and other cap proponents argue that a few large awards could still drain the fund if the caps were not in place.
Not likely, argue cap opponents, who point to the dwindling number of malpractice cases that are even filed.
Few lawyers are willing to take the cases because they are expensive to bring and because physicians win nine out of every 10 cases that go to trial, according to industry records.
In Wisconsin there were 116 requests for mediation filed in medical malpractice cases, down from 251 in 2000 and 410 in 1987, state records show. State law requires people to file for mediation before they could file a medical malpractice suit.
Despite the size of the insurance fund and the dwindling number of claims, Rofes, the Marquette professor, sees little chance of the court, which is dominated by conservative justices by a 5-2 margin, striking down the caps.
THANKS TO Cary Spivak, Milwaukee Journal Sentinel