June 28, 2018 – The Wisconsin Supreme Court has rejected (5-2) facial and as-applied constitutional challenges to Wisconsin’s $750,000 cap on noneconomic damages for medical malpractice victims, reversing a court of appeals decision that struck the cap.
In 2012, Ascaris Mayo and her husband brought a medical malpractice action after visiting the emergency room at Columbia St. Mary’s Hospital in Milwaukee. She had abdominal pain and a high fever and was told to follow up with her gynecologist.
The next day, at a different emergency room, she was diagnosed with sepsis from an untreated infection. All four of her limbs developed gangrene and needed amputation. The Mayos alleged medical malpractice in a lawsuit filed in Milwaukee County.
A jury did not find that health care providers at St. Mary’s were negligent but did find that providers failed to provide adequate information about options for treating any alternate diagnosis. The jury awarded Mayo $8.8 million in economic damages.
The jury also awarded $15 million in noneconomic damages, emotional suffering, and $1.5 million in noneconomic damages to her husband. However, the noneconomic damages award was subject to a $750,000 cap under legislatively enacted law.
The Wisconsin Legislature enacted the cap, effective in 2006, in response to the Supreme Court’s 2005 decision in Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, in which the Supreme Court ruled that a $350,000 cap was unconstitutional.
In Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78 (June 27, 2018), the Supreme Court majority overruled Ferdon and upheld the $750,000 noneconomic damages cap despite the facial and as-applied challenges.
The circuit court had relied on Ferdon to rule that the cap was unconstitutional, as applied to the Mayos, on equal protection and due process grounds.
The appeals court ruled the cap was facially unconstitutional because it denied equal protection to severely injured victims “who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.”
But the Supreme Court majority reversed, concluding the $750,000 cap is neither facially unconstitutional nor unconstitutional as applied to the Mayos.
Not Facially Unconstitutional
Challengers face a high burden to overcome a presumption of constitutionality, the majority noted: they must show a statute is unconstitutional beyond a reasonable doubt.
The majority also noted that the appropriate level of scrutiny is rational basis review. Under rational basis review, a statute is upheld if it has any rational basis.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
In Ferdon, the majority explained, the Supreme Court determined that rational basis review was the appropriate level of scrutiny, but improperly applied the standard.
“It created an intermediate level of review that it called ‘rational basis with teeth, or meaningful rational basis,’” Chief Justice Patience Roggensack wrote.
“We hereby overrule Ferdon. Rational basis with teeth has no standards for application, usurps the policy forming role of the legislature, and creates uncertainty under the law.”
Under normal rational basis review, the majority explained, the challengers could not overcome the presumption of constitutionality that applies to the damages cap.
Applying a five-step review, the majority concluded “the legislature’s comprehensive plan that guarantees payment while controlling liability for medical malpractice through the use of insurance, contributions to the Fund, and a cap on noneconomic damages has a rational basis. Therefore, it is not facially unconstitutional,” the chief justice wrote.
The majority noted that the Wisconsin Injured Patients and Families Compensation Fund, a defendant, is part of the comprehensive plan that ensures injured patients will be compensated for all economic damages. In enacting the current cap on noneconomic damages, the majority noted, the Legislature fully explained its reasoning.
The statute, Wis. Stat. section 893.55, notes that the cap helps Wisconsin contain health care costs and protects access to health care services across the state.
“Under a rational basis review, we do not consider whether the legislature achieved its goals,” Chief Justice Roggensack wrote. “Rather, we recognize that the legislature had ample testimony before it to support its policy choices. …”
As-Applied Challenge Also Fails
The majority noted that for as-applied constitutional challenges, the court reviews whether the statute was constitutionally applied to a party, on a case-by-case basis.
But the majority ruled that the Mayos’ as-applied challenge also failed. “[T]he Mayos have not presented any evidence that they were treated differently than others who are similarly situated,” wrote Chief Justice Roggensack, noting that cap is the same for all.
“The Mayos certainly are very sympathetic plaintiffs because of the severe injuries that Ascaris Mayo has suffered,” the chief justice wrote.
“However, were we to construe the cap based on our emotional response to her injury, we would be substituting our policy choice for that of the legislature.”
Concurrence and Dissent
Justice Rebecca Bradley wrote a concurring opinion, joined by Justice Daniel Kelly, agreeing with the outcome in this case but questioning the “unfettered deference” that courts give to the legislature on a statute’s constitutionality.
“Indeed, imposing a burden of proof heavily weighted in favor of the legislature on matters of constitutional interpretation is an abdication of our core judicial powers to exercise impartial judgment in cases and controversies and to say what the law is,” wrote Justice R. Bradley, also commenting on the decision to overrule Ferdon.
“I write to clarify that the court’s elimination of rational basis with bite as a standard of review should not be interpreted as relaxing the level of review applied to statutes implicating fundamental constitutional rights,” Justice R. Bradley wrote.
Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Shirley Abrahamson, arguing that the majority wrongly departs from the Ferdon decision.
“Ferdon exhaustively, and correctly, analyzed the constitutional infirmities of a damage cap of $350,000,” she wrote. “Raising the cap by $400,000 does not fix the fundamental constitutional problems with the damage cap that the Ferdon court identified.
“The cap still makes the most severely injured bear the greatest burden in violation of equal protection.” The dissenters would have upheld the appeals court, which said the noneconomic damages cap for medical malpractice is facially unconstitutional.
“It makes no sense that those who are injured most get the least,” wrote Justice A.W. Bradley, noting the Mayos will get five percent of what the jury assessed was due.
“This senseless and unequal result is compounded by the lack of rational basis for the cap, rendering it unconstitutional.”