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Spangenberg Shibley & Liber LLP | Aug 6, 2018

Fight Against Medical Malpractice Damages Cap Continues

Categories: Medical Malpractice

The fight against caps on damages in medical malpractice cases is set for another battle in Wisconsin, where the state’s Supreme Court heard oral arguments last month in a case involving a woman who lost both her arms and legs.

According to court records, that particular case involved a Milwaukee woman who suffered gangrene in all four of her limbs, and an amputation of all limbs, after medical professionals failed to provide antibiotics to treat an aggressive infection. In 2014, a jury awarded the woman $25.3 million in compensation, $16.5 million of which was awarded for her non-economic damages. However, because Wisconsin, like many other U.S. states, has a cap on non-economic damages ($750,000), her award was reduced by nearly $16 million. Her attorney appealed the issue, citing that the cap is unconstitutional, and that it violates the state’s equal protection clause because it hurts patients who suffer the most severe injuries.

While the Wisconsin Supreme Court may be hearing only the facts of this particular case, the decision it hands down will be one of substantial implications. Should they rule against the cap, and / or rule it unconstitutional, medical malpractice victims in the state may restore their right to secure the full scope of their damages after being harmed by negligence medical providers.

Such a decision would also add impetus to the growing progress made in the fight against “tort reform,” a misleading term used to bolster the rhetoric of lobbyists and politicians who have financial interests in limiting the amount of compensation victims can receive in civil cases.

Damages Caps, Tort Reform & Progress

Damages caps are one of the biggest focal points in tort reform, and they work by limiting the amount of financial compensation victims can receive when a defendant who caused them harms and losses is found liable in civil court. Over the years, financially motivated parties – including Big Pharma, insurance companies, and other corporations – have contributed exorbitant amounts of money into politics to fuel efforts for passing harsh and civilly unjust laws that implement caps on damages. A majority of states have some type of law limiting damage awards for victims.

While damages caps can apply to many different types of cases and various damages awarded in those cases, they most commonly apply to medical malpractice and non-economic damages. Non-economic damages are the intangible losses suffered by victims and families, and commonly include:

  • Physical pain and suffering
  • Emotional suffering, including distress, mental anguish, grief, etc.
  • Loss of quality of life
  • Loss of emotional support, companionship, and consortium
  • Disfigurement, disability, and impairment

What’s clear when looking at these examples is that non-economic damages can be tremendous, as well as some of the most difficult issues victims and families face as they rebuild new lives following preventable injuries. While victims may have a right to a recovery of these damages in medical malpractice cases, state-imposed caps render their physical and emotional suffering to a sum that cannot be exceeded.

Arguments Against Caps

Many arguments have been raised against damages caps, and will likely be echoed in the Wisconsin Supreme Court case. Some of the most important arguments include:

  • Unconstitutional – As the Milwaukee woman’s attorney argued in this case, advocates say that damages caps are unconstitutional. This is typically due to the fact that they violate equal protection clauses in state constitutions, as they hurt only those who suffer the most extreme injuries and losses. Victims who suffer less severe injuries, and who are awarded non-economic damages below the cap threshold, do not have their awards reduced.
  • Driven by profits – One of the largest arguments against caps is that they’re financially motivated. Health care providers, insurance companies, and other corporations have financial interests in protecting their bottom lines against large payouts to injured victims, and as such have lobbied extensively to have these laws passed in their favor. While they may disguise their true intent with bold rhetoric about frivolous lawsuits or the need to cut insurance costs, courts and legal experts have found that caps don’t definitively reduce insurance rates in states where they exist; just risks for corporate powers.
  • Strip juries of decision-making power – It takes one look at case law to discover that juries resoundingly understand and agree with the profound nature of emotional and intangible injuries experienced by victims, as they often award large figures for non-economic damages to severely injured plaintiffs. However, when caps are in place, they silence juries. Rather than allowing juries, comprised of our peers and everyday citizens, to exercise their decision-making power, caps strip that power away from juries, and hand it to corporations instead.
  • Caps hurt only the most severely injured – The argument on constitutionality is rooted in the fact that damages caps impact only victims who suffer the most horrific and profound losses. Severe injuries, including those resulting in permanent impairment and disfigurement, create lifetimes of setbacks and emotional suffering, both for victims and their families. This physical and emotional suffering cannot be understated, yet even when victims are awarded large sums in non-economic damages, caps reduce them to awards that far less severely injured victims may receive.
  • Arbitrary – Several landmark cases, including one in Florida, have involved rulings where Justices declared damages caps as arbitrary in nature. They’re not based on any empirical evidence, but they do suggest that a flat, arbitrary, and unsurmountable sum is all a victim requires.

Despite these compelling arguments, corporate powers still fuel efforts to defend caps, and even implement new and harsher laws. This includes proposed federal legislation – the aptly named “Protecting Access to Care Act” – which would implement a non-economic damages cap in medical malpractice and nursing home abuse cases nationwide.

Moving Forward

Today, more states in America than not have laws capping damages in medical malpractice cases. This includes Ohio, which also places caps on other cases and damages. However, those caps have been challenged in the past, and although efforts were unsuccessful (including a recent ruling in 2007), new cases like the one in Wisconsin, as well as landmark decisions like the one last year in Florida, provide hope that the fight against an unjust and unfair system molded by corporate money will continue.

As the country watches what unfolds in Wisconsin, our legal team at Spangenberg Shibley & Liber LLP knows that damages caps are still law in this state. As such, we make it our mission to not only raise awareness about these issues, but also fighting aggressively to help our clients secure the full amount of compensation they deserve, for all damages they suffer.

If you have questions about a potential medical malpractice or personal injury case, call (216) 600-0114 or contact us online for a free consultation.