SHARE No Relief State laws and court rulings have combined to erect roadblocks at the doors of Wisconsin courthouses, placing strict limits on who can sue for medical malpractice, how much money they can collect and where the money will come from. Go to section

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A Milwaukee woman who lost all four of her limbs as a result of medical malpractice should collect her entire $25.3 million jury verdict, a Milwaukee County circuit judge ruled in declaring a state-mandated $750,000 cap on medical malpractice court awards unconstitutional in her case.

"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," Judge Jeffrey Conen wrote referring to the July jury award to Ascaris Mayo, a 53-year mother of four who lost her limbs after a blood infection went undiagnosed.

The Milwaukee County jury award included $15 million for her pain and suffering and $1.5 million to her husband, Antonio Mayo, for loss of companionship. Conen's order rejects a defense request that he cut the pain and suffering and loss of companionship awards from $16.5 million to $750,000. The remainder of the award is for economic damages, such as health care expenses, and is not affected by the cap.

Conen's 21-page decision released late Friday applies only to the Mayo case and does not strike down the 2006 statute that created the $750,000 cap on noneconomic awards, for such things as pain and suffering.

"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 entire jury award, Conen wrote.

For years, lobbyists for doctors and their insurance companies have been urging state lawmakers across the nation to enact medical malpractice damages caps as part of a "tort reform" movement aimed at ensuring quality medical treatment while keeping medical malpractice insurance costs down. Plaintiff lawyers, however, argue the caps simply keep legitimate malpractice lawsuits from being filed.

"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,'" Conen wrote. He added that "there is no rational basis" for slashing the award to the Mayos "in the hopes of marginally improving health care in Wisconsin."

Conen's opinion noted that payment of the entire award would have little impact on the $1.15 billion state-managed insurance fund that pays medical malpractice claims that exceed $1 million.

The Injured Patients and Families Compensation Fund "will be able to pay the plaintiff's award in full from its 2013 investment income alone," the judge wrote referring to the unique insurance fund.

The Milwaukee Journal Sentinel in June reported the fund seldom pays claims and that only 140 medical malpractice lawsuits were filed in Wisconsin last year — a drop of more than 50% compared with 1999. Plaintiff lawyers argue the drop was caused by a series of laws that make bringing cases more difficult and expensive combined with the strength of the fund, which helps finance intense defenses against claims. Doctors and their insurers attribute the drop in suits to better health care.

Nationally, more than 90% of the medical malpractice cases that do make it to trial are won by the doctors and their insurers, according to insurance industry statistics.

Mayo won her case after showing her limbs were amputated in 2011 after a Strep A infection — the kind that causes strep throat — went undetected, ultimately leading to septic shock.

Mayo had gone to Columbia St. Mary's Hospital in Milwaukee for treatment for a fever and abdominal pain. The jury found no negligence in her treatment itself. However, it found that the doctor, Wyatt Jaffe, and the physician's assistant, Donald Gibson, failed to provide Mayo with "alternative medical diagnoses" that would have led her to pursue other treatment.

"Mrs. Mayo lost all of her limbs to a septic infection which evidence suggests could have been prevented if (Jaffe and Gibson) had offered her standard antibiotics in the emergency room," Conen wrote.

The following day, Mayo went to a different hospital emergency room where she was diagnosed with a septic infection. The damage was so severe that she later had her limbs amputated.

Even before the jury issued its award, attorneys were anticipating the case would be headed to the state Supreme Court if Mayo prevailed at trial. As is typical in medical malpractice cases, the jurors in the Mayo case were not told about the state law capping noneconomic damages.

"This is the only really big verdict that has come down in those eight and a half years" since the ($750,000) cap became law, said Michael End, a Milwaukee medical malpractice plaintiff's lawyer. "The magnitude of this verdict and the magnitude of the issues ... mean this will ultimately be decided by the Supreme Court."

By limiting his decision to the Mayo case, Conen's decision has a better chance to withstand an appeal than had the judge declared the cap was unconstitutional in all cases, said Janine Geske, a Marquette University law professor and former state Supreme Court justice.

"I think the likelihood of getting (the $750,000 cap) thrown out is probably not great right now" because of the conservative makeup of the court, Geske said.

"You've got a better shot at winning ultimately if you're a plaintiff with a very narrow opinion," Geske said. She explained the Supreme Court could uphold Conen's opinion — an action that would allow the $750,000 cap to stand — and then define the type of extraordinary cases where the cap would not apply.

End predicted the state insurance fund would appeal, and Geske said the lawyers for the fund and other defendantswould be able to voice a strong argument in support of the $750,000 cap and to lower the noneconomic damage award to the Mayos to that amount.

Daniel Rottier, Mayo's attorney, said he hopes the fund and other defendants do not appeal, though he agreed one was likely. "The best way to achieve justice is to just pay it and leave the larger fight for another day," Rottier said.

Attorneys for the fund could not be reached for comment Saturday. A spokesman for the state Office of the Commissioner of Insurance, the agency that oversees the fund, declined to comment.

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