WI Supreme Court Hears Arguments on Medical Liability Cap

April 20, 2018

On April 19, the Wisconsin Supreme Court heard oral arguments in Ascaris Mayo v. IPFCF, which focuses on the constitutionality of Wisconsin’s $750,000 medical malpractice non-economic damage cap enacted with bipartisan support in 2006. 

During oral arguments, Attorney Kevin St. John and Solicitor General Misha Tseytlin defended the constitutionality of the Legislature’s policy decision to enact a $750,000 non-economic damage cap, and emphasized the real and demonstrated impacts that having a cap on non-economic damages has on physician recruitment and access to care in Wisconsin communities. 

In January, WHA filed an amicus brief with the Supreme Court in support of the cap. A significant emphasis of that brief focused on the impact of the cap on access to care in Wisconsin.

“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,” stated WHA’s amicus brief, authored by Timothy Feeley and Sara MacCarthy, attorneys with Hall, Render, Killian, Heath & Lyman P.C. 

“The Legislature’s actions have continued the viability of a medical liability system that helps protect all Wisconsin communities’ needs for accessible health care,” said WHA’s brief. “To conclude that the Legislature’s basis for implementing the cap bears no rational relationship to providing access to affordable, quality health care for all Wisconsin residents ignores the evidence and the rational basis test.”

Consistent with other arguments made in WHA’s amicus brief, Attorney St. John and Solicitor General Tseytlin also emphasized that unlike other plaintiffs in Wisconsin and unlike any other state in the nation, plaintiffs in medical liability cases in Wisconsin are guaranteed recovery of economic damages, such as lost wages and medical expenses, that are awarded by a jury due to the Legislature’s decision to have both a non-economic damage cap and a mandatory, unlimited Injured Patients and Families Compensation Fund. The attorneys argued that the constitutionality of the non-economic damage cap should not be reviewed as if the unique benefit to injured plaintiffs of guaranteed recovery of economic damages did not exist.

“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.

WHA is anticipating a decision in the case this summer.

This story originally appeared in the April 20, 2018 edition of WHA Newsletter