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Following the lead of two other states, the Wisconsin Supreme Court has struck down a statutory cap on noneconomic damages in medical malpractice verdicts. In a 4-3 decision, the court found Wisconsin’s cap to be an unconstitutional violation of equal protection because it burdened those most seriously injured by medical errors. Ferdon v. Wisconsin Patients Compensation Fund, No. 2003AP988. Lawyers on both sides of the tort reform issue agreed that the court’s decision was a narrow ruling aimed at this particular cap, rather than all caps. “In general, the court was going out of its way not to make a broad brush stroke and say that all caps are unconstitutional,” noted Mary Stanton of Hurley, Burish & Milliken in Madison, Wis., who delivered the plaintiff’s oral argument before the court. Instead, Stanton said, the majority was concerned with the history of this particular cap, which had gone from $1 million to nothing to $350,000 during its 30-year legislative life. That suggested to the court that it had no rational basis, noted Stanton. But even a narrow ruling drew criticism from tort reform advocates, who believe the decision may have a negative impact on their efforts. “True, they are not throwing out the whole regime in one stroke of the pen, but it is still a pretty major loss to the overall structure of reforms,” said Sherman Joyce, president of the American Tort Reform Association (ATRA). In all, 27 states have enacted some type of cap on noneconomic damages, according to ATRA. Supreme courts in six of those states have later struck down the caps. Courts in New Hampshire, Illinois, and now Wisconsin have ruled against caps on noneconomic damages in medical malpractice. Oregon and Washington struck down caps in personal injury cases as a violation of the right to a jury trial. And Alabama struck down caps for wrongful death, also on equal protection grounds. The decision in Wisconsin came in the case of Matthew Ferdon, who has a partially paralyzed and deformed right arm allegedly due to a doctor’s error during his birth. A jury awarded Ferdon $700,000 in noneconomic damages, or $10,000 per year during the boy’s life expectancy of 69 years. Due to the cap on the verdict, Ferdon would instead receive $5,900 per year. In ruling in Ferdon’s favor, the court said that the cap arbitrarily burdened Ferdon and other claimants without a rational basis. Ruth Heitz, general counsel to the Wisconsin Medical Society, saw inconsistency in the court’s reasoning that, while some caps are constitutional, this one violates equal protection. “All caps cause differential treatment-that is the nature of a cap,” said Heitz. “If caps are constitutional, then how can the court conclude in earnest that the crux of the problem is that people are treated differently?” Another contested factor in Ferdon is an earlier decision by the court, finding in favor of caps on noneconomic damages in wrongful death cases. That 2004 decision, Maurin v. Hall, played heavily on the minds of the justices in Ferdon, said lawyers. It raises the question of why damages can be capped in wrongful death but not medical malpractice. The court’s answer in Ferdon was that wrongful death is a creation of statute and therefore the legislature can set the limits on damages. “When you have a cause of action because of a statute it is not the same rational test basis and due process,” said David Skoglind of Aiken & Scoptur in Milwaukee, who is also president of the Wisconsin Academy of Trial Lawyers.

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