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Milwaukee Judge Strikes a Blow to State’s Pain and Suffering Cap

Over the last few years, tort reform advocates across the country have successfully achieved statewide legislative “caps” on pain and suffering awards. The idea of pain and suffering caps sprang from business and medical organizations that lobbied their local representatives to limit the recovery possible for a person injured through the fault of another.

Implicit in pain and suffering caps is a distrust of the jurors that decide on the amount of compensation owed by liable parties in each case, as well as a distrust of the trial judges that review jury awards, and the appellate courts that review the judges’ decisions. The State of Wisconsin has such a cap that limits the pain and suffering compensation that can be awarded in medical malpractice cases to $750,000. However, in the case of Ascaris Mayo, this amount was far from sufficient.

Ascaris Mayo is a fifty-three-year-old mother of four. In 2011 she visited Columbia St. Mary’s Hospital in Milwaukee with abdominal pain and a fever. She had a Strep A infection, and any standard antibiotics would have been enough to put her on the right track to recovery.

But Ascaris wasn’t diagnosed with an infection at Columbia St. Mary’s, nor was she provided with an alternative diagnosis that might have allowed her to seek different treatment than what the hospital offered her. Ascaris’ conditions deteriorated until the next day when she checked into an emergency room at a different hospital, now with septic shock. Her infection had become so severe that it was necessary for the doctors to amputate all four of her limbs.

When Ascaris’ case came to court this year, the jury was given the impossible task of assigning a monetary amount to Ascaris’ suffering. Their job was made more difficult by the fact that since 2006, their state limits such financial compensation to $750,000. Despite this fact, they awarded Ascaris twenty times that amount. Milwaukee County circuit judge Jeffrey Conen affirmed their decision, writing, “This is not a runaway verdict. It is certainly not outrageous, and no one could seriously argue that it is not in proportion to Mrs. Mayo’s injuries.”

While we hope that this judge and jury’s humane decision will positively impact Ascaris’ life and the lives of her husband and family, it is likely that the defense will appeal this decision to a higher court, where the state cap on pain and suffering will be reviewed.

Ascaris’ incredibly tragic situation highlights the fallacy of the pain and suffering caps rationale. These caps fail to address the reality that each case’s circumstances are different. For Ascaris, Wisconsin’s arbitrary limit of $750,000 does not come close to addressing the complete destruction of her lifestyle, the loss of her mobility, and the impact on her family that her amputations will have for the rest of her life.

A jury that has the opportunity to hear the evidence from each of the parties will always be the best option for settling on a fair and appropriate reward for a wronged person.

Sources: “A blow against the state’s medical malpractice cap,” The Journal Times, October 8 2014.

Spivak, Cary, “Journal Times editorial: A blow against the state’s medical malpractice cap,” Journal Sentinel, October 4 2014.