We write about tort reform and damage caps quite a bit, and how dangerous – and unfair – they are to medical malpractice victims. Recently, a Milwaukee County judge got it right when he declared that the entire $25.3 million dollar award should go to a woman who lost all four limbs as a result of medical malpractice. The jury awarded $15 million to the victim for pain and suffering, and $1.5 million to her husband for loss of companionship. Though the defense argued that only $750,000 should be awarded for pain and suffering (the maximum amount allowed by Wisconsin law), the circuit judge Jeffrey Conen said the law didn’t apply. “This is not a runaway verdict,” reports the Milwaukee Wisconsin Journal Sentinel. “It is certainly not outrageous, and no one could seriously argue that it is not in proportion to [the victim] Mrs. [Ascaris] Mayo’s injuries.” Judge Conen went on to say that “[a]lthough 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 full amount.

The hospital and doctors will not pay for Mrs. Mayo’s injuries; rather, the award will come from the Injured Patients and Families Compensation Fund established by Wisconsin for awards over $1 million.

How a routine checkup went horribly wrong

Mrs. Mayo checked herself into Columbia St. Mary’s Hospital with abdominal pain and a fever. The treatment she received was acceptable, according to the jury, but the attending physician and his assistant failed to offer any “alternative medical diagnoses” about why she was ill. Because they failed to test for (or suggest the possibility of) a Strep A infection, the illness went untreated. It eventually led to sepsis – a condition, the judge notes, which could have been avoided had Mrs. Mayo been treated with antibiotics. Instead, the infection spread and necessitated the amputation of her legs and arms.

Though Judge Conen is not saying the 2006 law that capped noneconomic damages at $750,000 is unconstitutional, he has struck a very important blow on behalf of victims and advocates. This was an egregious case of failure to diagnose that cost Mr. and Mrs. Mayo almost everything. Step A is not an uncommon illness; that the doctors failed to even consider it is almost incomprehensible.

We fervently hope that judges around the country will take notice of Judge Conen’s decision, and that they too will begin to fight on behalf of patients who were hurt in life-altering ways. As the philosopher Lao-Tzu once said, a journey of a thousand miles begins with a single step. Judge Conen’s step may be what puts other judges and legislators on that path.

For more information about medical malpractice and failure to diagnosis illnesses, please visit Plaxen & Adler, P.A.