Courtroom Advocacy: WHA Files Brief with Supreme Court Supporting Medmal Cap

January 19, 2018

On January 16, the Wisconsin Hospital Association (WHA) filed an amicus brief with the Wisconsin Supreme Court in Ascaris Mayo v. IPFCF supporting the constitutionality of Wisconsin’s $750,000 medical malpractice non-economic damage cap enacted with bipartisan support in 2006.

“Wisconsin’s unique, balanced medical malpractice system that includes a cap on non-economic damages is a key policy that has helped Wisconsin retain and attract high-quality physicians to Wisconsin communities,” said WHA President/CEO Eric Borgerding. “The Legislature understood in 2006 and understands today that without a sufficient supply of physicians in communities throughout the state, Wisconsin’s high rankings in health care quality and access would not be achievable.” 

“To protect access to quality care, WHA fought hard 12 years ago to enact the bipartisan legislation establishing the current cap, and we are continuing that advocacy effort by supporting the Legislature’s sound policy decision in the courts,” said Borgerding. 

This is WHA’s second amicus brief in this case. In 2015, WHA and the Wisconsin Medical Society jointly submitted an amicus brief to the Court of Appeals in support of the cap. In July 2017, a three-judge panel of the Wisconsin Court of Appeals held that Wisconsin’s $750,000 cap on non-economic damages in medical malpractice cases is unconstitutional for all injured patients because the Legislature lacked a rational basis for enacting the non-economic damage cap. The defendant, the Wisconsin Injured Patients and Families Compensation Fund (IPFCF), then appealed that decision to the Supreme Court.

Timothy Feeley and Sara MacCarthy, attorneys with Hall, Render, Killian, Heath & Lyman P.C., who wrote WHA’s Supreme Court brief, argued that contrary to the Court of Appeals’ conclusion that the Legislature had no rational basis for creating the cap, the caps are not only rational but are enabling Wisconsin to achieve multiple goals.

“The Legislature’s efforts have borne fruit,” wrote Feeley and MacCarthy in WHA’s brief. “Wisconsin leads the nation in health care quality. Furthermore, for more than a decade after Ferdon, Wisconsin’s statutorily enacted comprehensive medical liability system has guaranteed injured patients full compensation for economic damages and allowed recovery for noneconomic damages up to $750,000, something both unique from other states and to other plaintiffs in Wisconsin.”

“The Legislature’s actions have continued the viability of a medical liability system that helps protect all Wisconsin communities’ needs for accessible health care. That accessibility to quality health care is not just a good unto its own, but it is also a key economic development asset for Wisconsin communities,” stated WHA’s brief. “To conclude that the Legislature’s bases for implementing the cap bear no rational relationship to providing access to affordable, quality health care for all Wisconsin residents ignores the evidence and the rational basis test.”

“Disregarding the Legislature’s informed judgment about the way to reduce the disincentives for physicians to practice in Wisconsin jeopardizes the continued viability of Wisconsin’s medical liability system….[and] impairs the ability of WHA members to recruit and retain health care professionals in the communities they serve,” wrote Feeley and MacCarthy.

A decision in the case is expected sometime in 2018.

This story originally appeared in the January 19, 2018 edition of WHA Newsletter