Medical Malpractice e-Resource

Health care and business officials said the $350,000 cap lawmakers put into place a decade ago for pain, suffering and loss of companionship has helped keep down insurance premiums for Wisconsin doctors -- savings passed on to patients -- and creating access and quality superior to other states.

Some lawmakers pledged to devise new limits to avoid what they called a potential health-care crisis.

But the attorney for an 8-year-old boy whose arm was permanently disabled because of a doctor's actions when he was born said such concerns were overblown. He said the $700,000 a jury originally awarded the boy to compensate him was hardly excessive and pointed out only eight verdicts in Wisconsin between 1996 and 2004 exceeded the state-imposed caps.

"Does that shock anyone's conscience? Does that make you believe that the system is out of whack?" attorney Vincent R. Petrucelli said.

The court ruled 4-3 the 1995 law establishing the cap violated the equal protection guarantees in Wisconsin's Constitution. Justice Shirley Abrahamson wrote for the majority that the law created two classes of people: those with injuries valued below the cap who are fully compensated and those with injuries valued above the limits who are not.

"No rational basis exists for treating the most seriously injured patients of medical malpractice less favorably than those less seriously injured," she wrote.

The decision throws out a judge's ruling to reduce a jury award to Matthew Ferdon of Abrams. But the Supreme Court said its decision does not strike down all caps under Wisconsin law in medical malpractice cases. Rather, its decision applies only to those for noneconomic damages, awards meant to compensate for mental distress, loss of enjoyment of normal activity, and loss of society and companionship. The cap is adjusted annually for inflation.

Last year, the court upheld a similar limit on wrongful death awards in medical malpractice cases.

But dissenting Justice David Prosser wrote the majority laid the groundwork to undermine other caps, and the state's largest business group complained the Supreme Court took an unprecedented step in substituting its judgment for the Legislature's will.

"If we don't overturn this ruling, Wisconsin will be a place where great doctors don't practice, businesses don't expand and families don't have jobs," Wisconsin Manufacturers & Commerce President Jim Haney said.

Matthew was injured during birth in 1996 when the doctor pulled on his head and caused an injury that left his right arm paralyzed and deformed. His parents sued, and Matthew was awarded $403,000 for future medical expenses and $700,000 in noneconomic damages.

Brown County Circuit Court reduced Matthew's award for noneconomic damages to comply with the state-imposed limits, which had increased to $410,322 by 2002 when the verdict came down.

Matthew appealed, and an appeals court upheld the decision. The Supreme Court overruled that decision and sent the case to circuit court to determine an appropriate award.

The circuit court also will decide whether the state's malpractice fund must pay Matthew the almost $290,000 that was cut from his jury award because of the cap.

Wisconsin's malpractice fund is composed of fees on health-care providers. The money is then used to cover jury awards that exceed health-care providers' insurance coverage.