Advocacy Update: Wisconsin Caps Overturned

July 19, 2017 12:11 PM | Sally Winkelman (Administrator)

By: Lisa Maurer, MD, WACEP Treasurer/Secretary

Earlier this month, the Wisconsin Court of Appeals decision in Mayo v Wisconsin Injured Patients and Families Compensation Fund (IPFCF) made changes to the liability system in our state that will affect every practicing physician by removing the cap on noneconomic damages altogether. The trial court for this case initially found that although the cap on noneconomic damages was constitutional, the plaintiff in this case was an exception and was awarded $16.5 million in non-economic damages. This ruling by the Court of Appeals goes one step further, arguing that any cap on noneconomic damages is unconstitutional, and removing it completely. 

Wisconsin has adjusted this noneconomic cap several times over the last decade or so. Prior to 2005, Wisconsin had a $350,000 cap on economic damages. In 2005, a decision in Ferdon v. IPFCF struck down the $350,000, stating that it violates the equal protection rights of severely injured patients. The cap of $750,000 that was in place until just this month was adopted in 2006 on the basis that a cap would protect the IPFCF and patient’s access to care, with the limit of $750,000 based on other states’ experiences. In contrast, Wisconsin has not had a limit on economic damages. For clarification, whereas noneconomic damages corresponds to any pain and suffering the plaintiff may have undergone, economic damages corresponds to actual expenses or lost wages. 

The IPFCF is expected to file an appeal with the Wisconsin Supreme Court, but has not done so at this point, and advocates on either side of the issue are watching closely. Patient advocates worry that a cap such that was in place limits the injured patients’ ability to be made whole. Most recently, the Court of Appeals argued that in a situation that we had where a cap was in place, but individuals were made to be exceptions to that cap, creates two classes of plaintiffs: one that is fully compensated and one that is not. Proponents for a cap on noneconomic damages, such as the Wisconsin Medical Society, argue that reasonable caps are what maintains a strong IPFCF, ensuring that Wisconsin patients have the ability to recover unlimited economic damages. They also have concerns that a lack of cap incentivizes attorneys to file groundless claims. 

Unlike the Wisconsin Medical Society, WACEP does not have a policy compendium to dictate an official position on topics such as this. Let us know what you think the Wisconsin Supreme Court should decide if this case is brought to them. Send us an email, post to our Facebook page or tweet us.