Ascaris Mayo and Antonio Mayo, Plaintiffs-Respondents-Cross-Appellants,
Wisconsin Injured Patients and Families Compensation Fund, Defendant-Appellant-Cross-Respondent, United Healthcare Insurance Company and Wisconsin State Department of Health Services, Involuntary-Plaintiffs, Proassurance Wisconsin Insurance Company, Wyatt Jaffe, MD, Donald C. Gibson, Infinity Healthcare, Inc. and Medical College of Wisconsin Affiliated Hospitals, Inc., Defendants.
and CROSS-APPEAL from a judgment of the circuit court for
Milwaukee County No. 2012CV6272: JEFFREY A. CONEN, Judge.
Brennan, P. J., Kessler and Brash, JJ.
This is an appeal stemming from a circuit court decision
finding the $750, 000 cap on noneconomic damages in medical
practice actions, as articulated in WIS. STAT. § 893.55
(2015-16),  unconstitutional as it applied to Ascaris
and Antonio Mayo. This is also a cross-appeal of the circuit
court's finding that the statutory cap is not
unconstitutional on its face. We conclude that the statutory
cap on noneconomic damages is unconstitutional on its face
because it violates the same principles our supreme court
articulated in Ferdon ex rel. Petrucelli v. Wisconsin
Patients Comp. Fund, 2005 WI 125, 284 Wis.2d 573, 701
N.W.2d 440, by imposing an unfair and illogical burden only
on catastrophically injured patients, thus denying them the
equal protection of the laws. We conclude that because
Wisconsin's cap on noneconomic medical malpractice
damages always reduces noneconomic damages
only for the class of the most severely injured
victims who have been awarded damages exceeding the cap, yet
always allows full damages to the less severely injured
malpractice victims, this cap denies equal protection to that
class of malpractice victims whose adequate noneconomic
damages a factfinder has determined are in excess of the cap.
Because we conclude that the statutory cap is facially
unconstitutional, we need not reach the question of whether
the cap is unconstitutional as it applies to the Mayos and we
do not disturb the circuit court's findings as to that
question. Because the effect of our decision still entitles
the Mayos to their jury award, we affirm the circuit court,
albeit on different grounds.
This case concerns a catastrophic injury sustained by Ascaris
Mayo stemming from an untreated septic infection. Despite a
hospital visit, the infection ultimately resulted in the
amputation of all of her extremities. According to facts
adduced at trial, in May 2011, Ascaris Mayo visited the
emergency room of Columbia St. Mary's Hospital in
Milwaukee for abdominal pain and a high fever. Mayo was seen
by Dr. Wyatt Jaffe and a physician's assistant, Donald
Gibson. Gibson included infection in his differential
diagnosis and admitted at trial that Mayo met the criteria
for Systematic Inflammatory Response Syndrome. Neither
medical professional informed Mayo about the diagnosis or the
available treatment, namely, antibiotics. Instead, Mayo was
told to follow up with her personal gynecologist for her
history of uterine fibroids. Mayo's condition worsened.
The following day, Mayo visited a different emergency room,
where she was diagnosed with a septic infection caused by the
untreated infection. Mayo became comatose and eventually
became minimally responsive until she was transferred to
another medical facility. Ultimately, the sepsis caused
nearly all of Mayo's organs to fail and led to dry
gangrene in all four of Mayo's extremities, necessitating
the amputation of all of Mayo's extremities.
The Mayos sued Dr. Jaffe, Gibson, Infinity Health Care, Inc.,
ProAssurance Wisconsin Insurance Co., and the Wisconsin
Injured Patients and Families Compensation Fund, alleging
medical malpractice and failure to provide proper informed
The Fund filed a motion to consider constitutionality issues
pre-trial. The circuit court addressed the issue of whether
the statutory cap on noneconomic damages, as stated by WIS.
STAT. § 893.55(4)(d)l. ("the cap"), was
unconstitutional. Ultimately, the circuit court held that the
cap was not facially unconstitutional but allowed the Mayos
to raise an as-applied challenge to the cap post-trial if the
Mayos so chose.
After a lengthy jury trial, the jury found that neither Dr.
Jaffe nor Gibson was negligent, but that both medical
professionals failed to provide Mayo with the proper informed
consent regarding her diagnosis and treatment options. As
material to these appeals, the jury awarded Ascaris Mayo $15,
000, 000 in noneconomic damages and Antonio Mayo $1, 500, 000
for his loss of the society and companionship of his wife.
Post-verdict, the Fund moved to reduce the Mayos' jury
award to the $750, 000 statutory cap on noneconomic damages
imposed by WIS. STAT. § 893.55. The Mayos moved for
entry of judgment on the verdict, arguing that an application
of the cap would violate their constitutional rights. The
Mayos also renewed their pre-trial facial challenge to the
cap. The parties again fully briefed the constitutional
issues and the circuit court reconsidered the constitutional
The circuit court determined that the cap was not facially
unconstitutional, but that it was unconstitutional as applied
to the Mayos because it violated the Mayos' rights to
equal protection and due process. Relying in part on the
principles articulated by the Wisconsin Supreme Court in
Ferdon, the circuit court made multiple findings,
including: (1) application of the cap would reduce the
Mayos' noneconomic damages jury award by 95.46%; (2)
there is no rational basis to deprive Ascaris Mayo, who is
largely immobile, of the money the jury found necessary to
compensate her for her injuries; (3) reducing the Mayos'
jury award would not further the cap's purpose of
promoting affordable healthcare to Wisconsin residents while
also ensuring adequate compensation to medical malpractice
victims; (4) financially, the Fund was more than capable of
honoring the jury's award without jeopardizing its
solvency; and (5) applying the cap would not advance the
legislative purpose of "policing high or unpredictable
economic damage awards."
Both the Fund and the Mayos appeal the circuit court's
constitutionality rulings. The Fund argues that the circuit
court erred when it found WIS. Stat. § 893.55
unconstitutional as it applied to the Mayos. The Mayos argue
that the circuit court erred when it determined that §
893.55 was not unconstitutional on its face. Each disputes
the other's arguments.
The Mayos contend that WIS. STAT. § 893.55 is facially
unconstitutional because it violates the equal protection
rights of catastrophically injured patients. Specifically,
they contend that there is no rational basis linking the
amount of the current noneconomic damages cap to the
legislature's articulated purposes for enacting the cap.
Whether a statute is constitutional presents a question of
law that we review de novo. See State v. Cole, 2003
WI 112, ¶10, 264 Wis.2d 520, 665 N.W.2d 328. A
statute's constitutionality may be challenged "as
applied" or "facial[ly]." Olson v. Town of
Cottage Grove, 2008 WI 51, ¶44 n.9, 309 Wis.2d 365,
749 N.W.2d 211. A '"[f]acial challenge'" is
'"[a] claim that a statute is unconstitutional on
its face-that is, that it always operates
unconstitutionally.'" Id. (citation
A statute is presumed to be constitutional and we resolve any
doubt about the constitutionality of a statute in favor of
upholding its constitutionality. See Dane County DHS v.
P.P., 2005 WI 32, ¶16, 279 Wis.2d 169, 694 N.W.2d
344. A party challenging a statute's constitutionality
must demonstrate that the statute is unconstitutional beyond
a reasonable doubt. Id., ¶18. In this context,
the phrase, "beyond a reasonable doubt, "
establishes the force or conviction with which a court must
conclude, as a matter of law, that a statute is
unconstitutional before the statute or its application can be
set aside. Id. As our supreme court explained:
[J]udicial deference to the legislature and the presumption
of constitutionality of statutes do not require a court to
acquiesce in the constitutionality of every statute. A court
need not, and should not, blindly accept the claims of the
legislature. For judicial review under rational basis to have
any meaning, there must be a meaningful level of scrutiny, a
thoughtful examination of not only the legislative purpose,
but also the relationship between the legislation and the
purpose. The court must probe beneath the claims of the
government to determine if the constitutional requirement of
some rationality in the nature of the class singled out has
Ferdon, 284 Wis.2d 573, ¶77 (multiple sets of
quotation marks and citations omitted).
"When considering an equal protection challenge to a
statute, this court employs the rational basis test, unless
the statute involves a suspect class or a fundamental
right." Kohn v. Darlington Cmty. Sch.,
2005 WI 99, ¶46, 283 Wis.2d 1, 698 N.W.2d 794.
"Equal protection guarantees that similarly-situated
persons are treated similarly." State ex rel Harr v.
Berge, 2004 WI.App. 105, ¶5, 273 Wis.2d 481, 681
N.W.2d 282. '"Equal protection does not require that
all persons be dealt with identically, but it does require
that a distinction made have some relevance to the purpose
for which the classification is made.'" Tateoka
v. City of Waukesha Bd. of Zoning Appeals, 220 Wis.2d
656, 671, 583 N.W.2d 871 (Ct. App. 1998) (citation omitted).
The "basic formulation" of the rational basis test
is the same in both facial and as-applied challenges. See
Smith v. City of Chicago, 457 F.3d 643, 652 (7th Cir.
2006). Under this standard, the constitution requires only
that the statute creating a classification be
'"rationally related to a valid legislative
objective.'" State v. Jorgensen, 2003 WI
105, ¶32, 264 Wis.2d 157, 667 N.W.2d 318 (citation
legislative cap on noneconomic damages
In Ferdon, the Wisconsin Supreme Court held that the
previous cap on noneconomic damages, set at $350, 000
(adjusted for inflation), was facially unconstitutional.
Id., 284 Wis.2d 573, ¶¶184-187. "The
court must presume that the legislature's judgment was
sound and look for support for the legislative act. But the
court cannot accept rationales so broad and speculative that
they justify any enactment. '[W]hile the connection
between means and ends need not be precise, it, at least,
must have some objective basis.'" Id.,
¶¶184 (citation omitted; brackets in Ferdon).
A jury awarded Matthew Ferdon $700, 000 in noneconomic
damages for medical negligence which occurred at his birth,
resulting in partial paralysis and deformity in his right
arm. Id., ¶¶2, 3. After the verdict, the
Fund moved to reduce the award in accordance with the
statutory cap on noneconomic damages. Id.,
¶¶4, 8. The circuit court granted the motion.
Id., ¶6. Ferdon appealed on several grounds. As
relevant to the issue before us, he argued that the statutory
cap violated his equal protection and due process rights
guaranteed by the Wisconsin Constitution. See id.,
Justice Crooks, in his concurrence, succinctly explained the
history of the noneconomic damages cap in Wisconsin medical
When Wis.Stat. ch. 655 was first enacted in 1975, there was
no cap on noneconomic damages, but a $500, 000 conditional
cap that could be triggered if the Wisconsin Patient
Compensation Fund's cash-flow was in jeopardy.... Then,
in 1986, the legislature set the cap at $1, 000, 000. This
$1, 000, 000 cap remained in effect until 1991, when a sunset
provision became effective. There was no cap on noneconomic
damages from 1991 until the legislature passed the current
statutory cap of $350, 000 in 1995. Thus, the caps changed
from nothing, to $1, 000, 000, back to nothing, and finally
to $350, 000 over the course of 20 years.
Ferdon, 284 Wis.2d 573, ¶190 (Crooks, J.,
concurring). The accuracy of Justice Crooks's historical
summary was not disputed by any Justice.
Using a rational basis level of scrutiny, the Ferdon
majority noted that the "standard in the equal
protection context does not require that all individuals be
treated identically, but any distinctions must be relevant to
the purpose motivating the classification."
Id., ¶72. The court declared its goal as one to
"determine whether the classification scheme rationally
advances the legislative objective." Id.,
¶81. The classification the supreme court described in
Ferdon was the "distinction between medical
malpractice victims who suffer over $350, 000 in noneconomic
damages, and medical malpractice victims who suffer less than
$350, 000 in noneconomic damages.... In other words, the
statutory cap creates a class of fully compensated victims
and partially compensated victims." Id.,
¶82. The court observed that "the cap's
greatest impact falls on the most severely injured
victims." Id. The effect of the court's
observation is to acknowledge two classifications of victims
created by the cap: (1) the class of the most ...