Wisconsin’s Precedent-Setting Medical Malpractice Cases

In the past two decades, the Wisconsin Supreme Court has decreed competing rulings on whether a limit on noneconomic damages in medical malpractice lawsuits is constitutional. With the Court’s newly elected liberal majority, the pendulum may be swinging back against damage caps.

Wisconsin state capitol

ByJacalyn Crecelius, J.D.

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Updated on May 30, 2023

Wisconsin state capitol

Maurin

In 1996, 5-year-old Shay Maurin tragically died of acute diabetic ketoacidosis, a life-threatening complication of diabetes. Prior to her death, the infant was lethargic, drank fluids all day, and was eating poorly. The mother took her child to a West Bend medical practitioner where she was diagnosed with an ear infection, prescribed antibiotics, and encouraged to obtain further testing for diabetes if her symptoms did not improve.

Shay’s condition rapidly worsened over the next day. The child was vomiting, dry heaving, and her mother noticed a fruity odor to her breath, a common sign of diabetes. They immediately sought help in an emergency room but were sent home without a proper diagnosis.

The next morning, Shay returned to the emergency room. She was seen by a different doctor, who immediately diagnosed her with acute diabetic ketoacidosis. The child was transferred to Children’s Hospital of Wisconsin, but lost consciousness en route. Shay died the next day.

Shay’s parents sued the first ER physician and the jury awarded $3 million in damages, but there was a cap in place that limited what the family actually received ($300,000). The plaintiffs then sought further relief from the Washington County Circuit Court. They argued that the cap was unconstitutional because it deprived the litigants of the basic right to a jury trial, violated the due process and equal protection clauses of the constitution, and usurped the power of the judiciary. The family also sought an increased wrongful death cap that could apply retroactively. The Circuit Court ruled in favor of the Plaintiffs on the former but denied the latter request.

The parties brought the case to the Wisconsin Supreme Court. After an in-depth review of the applicable law and legislative intent surrounding the cap, the Court found that the trial court was correct in limiting the family to $300,000. The Court further held that the noneconomic damages cap itself was not unconstitutional.

Ferdon

During the 1996 birth of Matthew Ferdon, the delivering doctor pulled on Matthew’s head in such a way that caused obstetric brachial plexis palsy. This rare, but serious condition, caused partial paralysis and deformity of Matthew’s right arm. Despite surgeries and occupational therapy, it became clear that the child’s arm would never function as it should.

The family sued for medical malpractice, and a jury awarded the family $1.1 million, $700,000 of which was for non-economic damages. Due to the cap, however, the judge awarded only $410,322 (after adjustments for inflation). The Ferdon family then brought this to the Wisconsin Supreme Court, claiming the mandatory cap violates the equal protection and due process clauses, right to trial by jury, and the right to remedy per the Wisconsin Constitution.

In a surprising departure from the Court’s usual legislature-deferential standard, the Court in this case struck down the cap as unconstitutional “beyond a reasonable doubt.”

In her carefully drafted majority opinion, then-Chief Justice Shirley Abrahamson wrote that judicial deference to the legislative role in drafting law doesn’t mean the Court must “acquiesce in the constitutionality of every statute.”

In his concurring opinion, Justice N. Patrick Crooks made clear that the cap, in and of itself, was not automatically unconstitutional. However, “there must be a rational basis so that the legislative objectives provide legitimate justification … and the cap must not set so low as to defeat the rights of Wisconsin citizens to jury trials and to legal remedies for wrongs inflicted for which there should be redress.”

In 2006, a year after the Ferdon ruling, Wisconsin legislators set a new cap for non-economic damages at $750,000.

Mayo

More recently, in 2011, Ascaris Mayo checked into a Milwaukee emergency room with a high fever and abdominal pain. The medical team noted that Mayo met the criteria for Systemic Inflammatory Response Syndrome but neglected to inform her about the diagnosis or related treatment of antibiotics. Instead, she was referred to a gynecologist due to a history of uterine fibroids. Knowing there was something else going on, she tried to get help at a different ER the next day. There, doctors diagnosed her with sepsis resulting from an untreated infection. The sepsis soon caused organ failure, dry gangrene in Mayo’s extremities, and ultimately amputation of all four limbs.

Mayo sued for medical malpractice and the jury did not hesitate in sending a message to the negligent healthcare providers. Mayo was awarded her $8.8 million in economic damages as well as over $15 million in noneconomic damages. With Wisconsin’s new noneconomic damages cap of $750,000, however, the Plaintiff would only receive 5% of the jury’s award.

In an unexpected move, the trial court did not wait for the appellate courts to address the appropriateness of the cap. Instead, they deemed it unconstitutional, and the appellate courts agreed.

In early 2018, the case was heard in front of the Wisconsin Supreme Court. In a 5-2 decision, the Court overturned the lower courts’ rulings. Instead of the “rational basis with teeth” standard used in Mauro and Ferdon, the Court reverted back to the earlier standard where a statute’s unconstitutionality must be found beyond a reasonable doubt.

Then-Chief Justice Patience Roggensack held that the Ferdon case “erroneously invaded the province of the legislature” who made a “legitimate policy choice.” Roggensack further wrote that any cap, “by its very nature, will limit the amount that some people will be able to recover.”

Changing Standards of Review

In Maurin, the Court used a rational basis standard of review. For a statute to pass this test, it must have a legitimate state interest, and there must be a rational connection between the rule’s means and goals. In other words, courts will uphold a law if there is a conceivable set of facts that could justify the legislature’s actions. When fundamental rights or protected classes aren’t at issue, Courts are typically wary of second-guessing duly elected law-making bodies.

However, the justification taken by the Court in Ferdon is equally merited. This is particularly so in cases where legislation was drafted, purposefully or not, in a way that disadvantaged marginalized groups. Without this more liberal approach, known as “rational basis with teeth,” citizens would be left without redress against unfair laws.

And yet, as we saw in Mayo, the Roggensack Court was not held captive by Ferdon’s precedent. The conservative court had no problem going back to its legislatively deferential roots.

What’s Next for the Court?

The Wisconsin Supreme Court has offered competing takes on the constitutionality of caps for noneconomic awards in medical malpractice cases. One has to wonder if the newly elected Court might take a cue from their liberal Ferdon predecessors should the question be revisited.

For the first time in 15 years, control of the Court is back in the hands of a liberal majority with the election of Janet Protasiewicz. What exactly that means for the caps considered in this article remains to be seen. Sharp changes in case law all too often hinge on how the sitting justices view the importance of judicial precedent, and Protasiewicz has made it clear that she is not afraid to go against precedent.

About the author

Jacalyn Crecelius, J.D.

Jacalyn Crecelius, J.D.

Jacalyn Crecelius, J.D., is a legal content writer, attorney, and mediator with experience practicing in the areas of healthcare, elections, family law, and federal employment/security clearance defense. She is a Veterans’ Attorney at Jacksonville Area Legal Aid, Inc., providing specialized legal assistance to veterans since January 2023. Her extensive legal career includes roles such as an Associate Attorney at The Edmunds Law Firm, where she focused on security clearance defense for military personnel, and at Florida Women's Law Group, handling complex family law matters. Jacalyn received a BA in Psychology from Otterbein University, a J.D. from the University of Toledo College of law, and, most recently, an MA in Governance and Human Rights from Leuphana University in Lüneburg, Germany.

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