In a July 5 opinion, the Wisconsin Court of Appeals, District 1 (Milwaukee County), found the statutory $750,000 cap on noneconomic damages arising out of medical malpractice claims was unconstitutional. The court found the cap was “an unfair and illogical burden only on catastrophically injured patients, thus denying them equal protection of the law.”

The case arose from a septic infection resulting in the amputation of the plaintiff’s limbs. The lower court did not find negligence, but instead rested liability on improper informed consent regarding diagnosis and treatment options. The jury awarded the plaintiff $15 million in noneconomic damages, such as pain and suffering, and $1.5 million to the plaintiff’s husband for loss of society and companionship.

The $750,000 cap was set in 2005 Wis. Act 183. Act 183 was in response to a Wisconsin Supreme Court case, Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund that found unconstitutional a $250,000 cap on medical malpractice noneconomic damages. Act 183 passed by a wide, bipartisan vote of 74-22 in the Assembly and 25-8 in the Senate. Democratic Gov. Jim Doyle signed the legislation into law.

The Wisconsin Hospital Association, Wisconsin Medical Society, and the American Medical Association filed an amicus brief in support of the existing $750,000 cap. In response to the decision, the Wisconsin Hospital Association issued a press release stating that the “loss of noneconomic damage cap will exacerbate future physician shortages” in Wisconsin.

Unaffected by the decision was the reported $8.8 million award for economic damages, such as medical costs and lost wages, which has no statutory limitation.