TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, July 5, 2017

WI: Intermediate Appellate Court Strikes Down $750K Med Mal Cap on Non-economic Damages

In a decision sure to reach the state's highest court, Wisconsin's $750K med mal cap on non-economic damages was ruled unconstitutional by an appeals court today.  The gist:

A Milwaukee County judge sided with the [plaintiffs], finding the cap was unconstitutional as applied in their case. The 1st District Court of Appeals went further Wednesday, ruling the cap is unconstitutional on its face. The court found the cap allows full awards for less severely injured patients but results in reduced awards for the catastrophically injured, amounting to an equal protection violation.

The court went on to say the cap doesn't achieve any of the Legislature's stated goals in adopting it.

Lawmakers included language with the cap that said it was designed to encourage doctors to practice in Wisconsin, contain health care costs by discouraging "defensive medicine" and providing certainty in damage awards as well as protect the solvency of the state compensation fund.

The number of doctors participating in the fund has grown every year and there's no data indicating a cap has any effect on physician retention anywhere, the court said. Doctors don't face any personal liability thanks to the state fund, which would appear to eliminate the need for defensive medicine. As for the fund's solvency, claims against it have decreased since 2005 and as of 2014 the fund's assets stood at about $1.2 billion, the court said.

"We are left with literally no rational factual basis in the record before us which supports the legislature's determination that the $750,000 limitation on noneconomic damages is necessary or appropriate to promote any of the stated legislative objectives," the court's opinion said.

Todd Richmond, of the AP, filed this story

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