Transgender Patient Sues After Gynecologic Surgery Goes Awry

Wayne J. Guglielmo, MA


September 12, 2017

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Mother Who Lost All Her Limbs Wins Appeal

A Wisconsin appeals court has struck down that state's $750,000 cap on noneconomic damages in medical malpractice cases, the Milwaukee Journal Sentinel reports in a July 6 story.[4]

Writing for the three-judge appeals panel, Judge Joan Kessler ruled that the state's cap on noneconomic damages "is unconstitutional on its face," adding it "always reduces noneconomic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, [and] yet always allows full damages to the less severely injured malpractice victims."

The ruling stems from the case of Ascaris Mayo, a 57-year-old mother of four who, in 2011, was admitted to Columbia St. Mary's Hospital in Milwaukee with severe abdominal pain and a high fever. But instead of being told that she may have a septic infection and that a course of antibiotics was most likely called for, a doctor and physician assistant referred Mayo to "her personal gynecologist for her history of uterine fibroids," Judge Kessler wrote.

The next day, Mayo was admitted to a different hospital, where the patient's worsening infection and dry gangrene in all of her extremities caused doctors to amputate all four limbs.

At trial, Mayo was awarded $25.3 million, $8.8 million of which was for economic damages, including past and future medical costs. The remaining award—$16.5 million—was for noneconomic damages, including pain and suffering. But, given the state's cap on such damages, that amount was reduced to $750,000 and paid out by the state-managed $1.3 billion medical malpractice insurance fund.

The plaintiffs appealed that reduction and a state court upheld their appeal, arguing that in such cases as Mayo's, the limit was unconstitutional. The court further noted that it could find no evidence or rationale to support lawmakers' decision to safeguard physician retention in Wisconsin—and thus protect access to care in the state—by limiting damage awards.

But both the Wisconsin Medical Society and the Wisconsin Hospital Association disagreed. In a statement by its president after the appeals court decision, the association argued that there was in fact a policy rationale for the cap and that the Wisconsin Supreme Court would recognize that and overturn the lower court ruling.


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