Judge Decides to Ignore Cap in Non-Economic Damages

judge2Last month in a medical malpractice case in Milwaukee, a judge did something pretty amazing.  Here is the setup.  A woman has both her arms and legs amputated as a result of a Strep A infection and the treatment she received for septic shock, resulting in compromised blood flow.  This is, no question, a stunningly awful tragedy.   A jury believed that medical malpractice caused these injuries and awarded $15.75 million in pain and suffering damages and $9 million economic damages.   But Wisconsin has a $750,000 cap on non-economic damages that the trial judge in this case believed was constitutionally sound.   So that’s that, right?
In a 21-page decision, Judge Jeffery Conen explained that his ruling does not strike down Wisconsin’s $750,000 cap on non-economic awards:

Although the cap may be constitutional as applied to medical malpractice victims as a whole, there is no rational justification for depriving Mrs. Mayo, who is in her mid-fifties, limbless, and largely immobile, and Mr. Mayo of the award the jury decided was appropriate to compensate them for their injuries…”

It is unreasonable to require Mrs. Mayo and her husband, whose lives have been so drastically altered, to bear the brunt of the legislature’s intended tort reform…. there is no rational basis [for slashing the award] in the hopes of marginally improving health care in Wisconsin.


The judge was clear that this is a special case and he otherwise thinks the cap is constitutional, writing that “this decision is not meant to be precedential, nor is it intended to dictate the legal outcome of any other factual matters. ”

The Problem with Ignoring the Cap in a “Special Case”

You would think that I would support  Judge Conen’s decision to set the cap aside and I do.   One less injustice is one less injustice.  But the decision underscores the insanity of the cap in the first place.  Yes, this is a special case.  Do you know how many special cases I have handled where the application of the cap in that particular case was unjust?   We have handled scores of cases that fall into this category.

This judge picked out a case that was before him that he found special.   You know who found a lot of our cases special?   In the last several years, we have had five different juries tell us that our client’s injuries were worth more than that cap (I don’t think any other law firm in Maryland can say that over the same period, I brag).   Those cases were special, too.  They just were not blessed to have that judge hear the case. There are lives being “drastically altered” on a regular basis in Maryland and Wisconsin for which there is “no rational basis” for the victims to “bear the brunt of the legislature’s intended tort reform.”   Judge Coen has been on the bench for 18 years.   He has to know this.

Let Me Say This Another Way

I’m going to put this in more personal terms.  What happened to this woman was beyond awful.  I can’t minimize it.  Except to say this: I would rather this happen to me than my death.   I’m an active person; I would be a shell of myself without my arms and legs.   But I would take that over death every single day of the week. Because I can still see my children grow up.  From that wheelchair, I could still try to impact their lives in a meaningful way.    I would also get a chance to see how everything turns out.   I’ve now spent 15 minutes in this poor woman’s shoes and it is depressing me to no end.   But, still, for me and for my family, I’m convinced that death would be a far worse outcome.

This judge would not have seen it the same way.  Why?  Because he is feeling this woman’s pain. It is tactile to him.   He can see, hear, and feel her pain.  He was not there when the dead guy’s wife had to tell his kids.  He is not going to be there for every moment that gets missed without a father.   He just sees sad people at the trial.

I get it.  The judge is a human being and that is awesome.  Great ruling.  But the ruling seems blind to the idea that there are just a ton of special cases.  The judge says this case has no precedential.  That is just crazy.  It has all of the precedential.

Why There May Be No Appeal of This Ruling

Sometimes, judges make rulings like this to make a statement.  Usually, these are judges who have been around a long time and have the gravitas to say, “I know this ruling will get flipped but I don’t care.  I’m sending a message.”

That is not the case here.  There probably will not even be an appeal. Why?  The real party on the hook here is the Wisconsin Injured Patients & Families Compensation Fund which provides back up coverage to doctors who have a $1 million in insurance.  The plan is fully funded to the tune of $1 billion.  (Take note West Virginia whose fund is always bordering on insolvent.)   They are the responsible party due to a statute that tries to take some of the sting out of giving victims the compensation that a jury sought fit to award.  So you can see where the Fund might want to let this case lie to avoid making bad case law.  I still have a hard time believing it will go down like that but, if it does, it is a great outcome for the victim.

So the case may have the best possible ending to a case that is still an epic tragedy no matter how much money is awarded.  But the case also stands for the obvious proposition that every case where a jury sees fit to award more than $750,000 is a special case deserving of the “special” consideration of giving the victim what the juries sees fit to award.

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