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A lawsuit filed on behalf of Ascaris Mayo was brought before a three-judge panel at Wisconsin’s First District Court of Appeals and they ruled that the state’s cap on non-economic medical malpractice damages is unconstitutional. Six years ago, Mayo, then 51, was brought into the Columbia St. Mary’s Hospital emergency room in Milwaukee, Wisconsin. She complained of a severe pain in her stomach and had a substantial fever. The attending physicians determined that she likely had an infection, but according to the lawsuit, Mayo was never told that she might have a Strep A infection. She was then allegedly referred to a gynecologist and discharged without being given any antibiotics.

The next day, Mayo experienced septic shock caused by the untreated infection. She was rushed to a different hospital where her organs failed. She was then diagnosed with dry gangrene, which is the death of tissue, and her doctors were forced to amputate both of Mayo’s legs and both of her arms. According to the medical malpractice suit, if not for the alleged negligence of Dr. Wyatt Jaffe and physician assistant, Donald Gibson, Mayo’s infections could have been treated. At the trial, a Wisconsin jury agreed and awarded Mayo $25.3 million, which included $16.5 million in non-economic damages.

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The judge who presided over the original trial ruled that the non-economic cap would not apply to Mayo. The Wisconsin Injured Patients and Families Compensation Fund was ordered to pay the award, but the fund immediately appealed the ruling. The attorneys representing Mayo argued that the cap was not constitutional and that their client should receive all of the money assigned in the jury’s verdict. Earlier this month, the three-judge panel representing the appellate court ruled that the $750,000 non-economic cap is indeed unconstitutional.

“This highlights the disparity in applying the cap to severely injured patients such as Ascaris, as compared to applying the cap in cases where a patient is less severely injured and receives a lower award, but is able to collect the entire amount of the award because it falls under the cap’s limit,” explained Judge Brash of the appellate court.

Representatives of the Wisconsin compensation fund argued that the cap is necessary to prevent their reserves from being exhausted. But the panel found that the fund has more than $1.2 billion in assets and pay out a small percentage of medical malpractice lawsuits, partly because law firms in Wisconsin can not afford to take on such cases with the cap in place. Wisconsin has had different limits on medical malpractice lawsuit payouts since 1986. In 2005, the state’s supreme court ruled that the then $350,000 cap was arbitrary and unconstitutional. Soon after, the limit was raised to $750,000, and it is now expected that the Mayo suit will be brought before the supreme court.

“We won a very large battle,” said one of the lawyers representing Mayo, “but the war is still going on.”

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