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Wisconsin Court of Appeals Strikes Down Noneconomic Damages Cap in Medical Malpractice Cases

By: D|K’s Health Care Team

On July 5, 2017, the Wisconsin Court of Appeals ruled that Wisconsin’s cap on noneconomic damages in medical malpractice cases (found in Wis. Stat. § 893.55) is unconstitutional on its face. The court ruled that the Plaintiff Ascaris Mayo, should receive her jury award of $15 million in noneconomic damages and her husband, Antonio Mayo, should receive his jury award of $1.5 million for his loss of society and companionship. See Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund (accessed at We expect this ruling will be reviewed by the Wisconsin Supreme Court.

The current statutory cap, which applies to all medical malpractice cases, limits the award of noneconomic damages to $750,000. Noneconomic damages compensate for damages such as pain and suffering, humiliation, embarrassment, and loss of society and companionship, as opposed to economic damages which compensate for hard costs such as medical bills and lost wages.

In the opinion written by Judge Joan Kessler, the Court stated that the cap “does nothing to promote the primary purpose of the statute, which is to ‘ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice.” The Court found that reducing damages only for the most severely injured victims resulted in that class of persons being denied equal protection by the Wisconsin Constitution. “Severely injured medical malpractice claimants are unduly burdened by the cap without a rational basis that supports the legislature’s stated objectives in any way” said Judge Kessler.

Judge William Brash wrote a concurring opinion stating that, while he agreed with the trial court’s decision that the cap applied to the Mayos was unreasonable, he disagreed with his Court of Appeals colleagues’ conclusion that the cap was unconstitutional on its face. Said Judge Brash: “the legislature has established a reasonable basis for the damages cap statute,” even though “the Mayos have met their burden in challenging the caps statute on equal protection grounds.”

Eric Borgerding, the Wisconsin Hospital Association President, released a statement that is posted on the Association’s website stating that the association disagrees with the Court of Appeals conclusion. The Association, like Judge Brash, sees reasonable policy decisions supporting the Legislature’s decision to enact the noneconomic damages cap. Borgerding elaborated and said that “we are expecting that today’s decision will be reviewed by the Wisconsin Supreme Court, and we believe the Court will uphold the well-supported and bipartisan public policy balance set by the Legislature to help ensure accessible health care in Wisconsin.”

If you are currently involved in, or even at risk for, medical malpractice litigation, this decision has major consequences. We will monitor any further developments. In the meantime, please contact your Davis|Kuelthau attorney or the author noted above with any questions.