For Immediate Release:


Court Upholds Constitutional Right to Jury Trial, Ensuring Justice for Quadruple Amputee

July 6, 2017 (Madison) On Wednesday July 5, the Wisconsin Court of Appeals delivered a powerful statement upholding a Milwaukee County jury’s damage award to Ascaris Mayo, in Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2014AP002812, dated July 5, 2017 (recommended for publication).

WAJ President Benjamin S. Wagner of Milwaukee stated, “The Court of Appeals, in a concise and well-reasoned opinion, took a brave step towards ensuring that injured patients in Wisconsin can achieve justice by utilizing their constitutional right to a civil jury trial.”

“The data the court relied upon speaks for itself. The imposition of damage caps against a person like Ascaris Mayo has no rational relationship to controlling medical costs, nor does the verdict impose a financial hardship on the Injured Patients and Families Compensation Fund,” Wagner continued, “To the contrary, the court’s decision ensures that the Fund meets its dual statutory obligations to provide excess insurance to medical professionals and provide compensation to injured patients and families.”  

Information available to the court, and widely reported by Wisconsin media outlets, supports the court’s analysis and conclusion: The financial position of the Wisconsin Injured Patients and Families Compensation Fund is strong, claims against providers have been on a downward trend for two decades, and there have been no demonstrable increases in payouts.  In fact, Wisconsin often ranks last in medical negligence claim payments.

Facts of the Case in Brief:

In May 2011, Ascaris Mayo entered an emergency room suffering from a high fever and complaining of severe abdominal pain. The ordeal would ultimately lead to the amputation of all four of her limbs. The plaintiffs in the case, Ascaris Mayo and her husband, Antonio Mayo filed suit against two Milwaukee area health care professionals who treated her that evening and who failed to inform Mrs. Mayo of a differential diagnosis indicating that she met the criteria for Systematic Inflammatory Response Syndrome and that potential treatment option, antibiotics, would have cured the infection.

After her condition worsened and severe pain continued, Mrs. Mayo returned to a different emergency room the following day with a septic infection caused by the untreated condition identified a day earlier. The septic infection led to the amputation of all four extremities.

In 2014, after reviewing the facts of Mrs. Mayo’s ordeal, a Milwaukee County jury awarded Mrs. Mayo $15,000,000 in noneconomic damages along with $1,500,000 her husband.  The economic damages in the case are not in dispute. Defendants in the case, immediately invoked Wis. Stat.§ 893.55(4)(d)1, seeking to cap the non-economic damage award to $750,000. From the beginning of the case, the plaintiffs argued the cap imposed by the statutes unconstitutionally impinged on Mrs. Mayo’s right’s by arbitrarily creating a class of people, the most severely injured, whose damages should be curtailed by statute.

The plaintiffs alleged from the beginning that the statute capping non-economic damages was unconstitutional. After the trial, the Circuit Court ruled that the cap was unconstitutional as applied to Mrs. Mayo. The Court of Appeals’ decision held that the statute is unconstitutional on its face. It’s analysis closely tracks a previous Supreme Court holding in Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440.

This case is a poignant example of a trend observed by scholars studying the impact of various tort reform efforts, including damage caps. The impact of these legislative barriers falls most heavily on women, children and seniors who have the least ability to prove economic losses when gravely injured.


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