Milwaukee Judge Holds Medical Malpractice Damages Cap Unconstitutional When Applied to Woman Who Had Four Limbs Amputated Due to Medical Negligence

A woman who lost all four limbs to sepsis because emergency room physicians failed to inform her that she may have an infection that could be treated with antibiotics won a $25.3 million judgment for medical malpractice. $16.5 million of that award was for pain and suffering and loss of companionship with her husband. The defendants asked the judge to reduce this portion of the award from $16.5 million down to $750,000, pursuant to a Wisconsin state law which caps "noneconomic" damages in medical malpractice cases at $750,000.

The judge refused to reduce the award, however, deciding that it would be unconstitutional to apply the damages cap in this particular instance. The judge in Mayo v. Wisconsin Injured Patients and Families Compensation Fund looked at the different arguments in favor of damages caps - controlling health care costs, controlling doctors' insurance premiums, preventing "runaway jury" awards - and decided that none of them bore any rational relation to the judgment in this case. First of all, the amount of this award was not out of proportion to the severity of the injury in either the judge or the jury's eyes. Secondly, judgments in excess of $1 million in Wisconsin are paid out of a state fund built from physician insurance premium contributions. This fund is currently valued at over $1 billion and can easily pay the judgment out of its current year investment income. Upholding the judgment, therefore, should not require an increase in medical provider insurance costs or raise overall health care costs to the public.

In Colorado, noneconomic damages in medical malpractice cases are capped at $300,000. In addition, the total amount of damages are capped at $1 million. This includes payments for present and future medical expenses, lost wages and other "economic" damages, regardless of how severe or costly the injury is. The court does have the power to exceed the cap for the sake of fairness in appropriate cases.

Courts around the nation are starting to scrutinize statutes capping damages in medical malpractice cases. Judges are no longer willing to take legislative arguments at face value but are now doing their own research to see whether the arguments are true and rationally related to the caps, and whether treating medical malpractice victims differently from other personal injury or wrongful death victims is a constitutional practice.

Colorado Trucks Found with High Rate of Bad Brakes During Surprise Inspections

A period of unannounced roadside inspections of commercial vehicles conducted last Spring revealed a high number of semi-trucks in Colorado with brake system violations. Brakes which are out of adjustment or have worn pads, linings, drums or rotors are by far the major reason 18-wheelers are placed out of service during roadside inspections. A brake failure at a critical moment on the highway can result in a catastrophic truck crash causing serious personal injury or wrongful death to the truck accident victims.

The surprise inspections were conducted with the help of the Federal Motor Carrier Safety Administration (FMCSA) as part of Operation Airbrake, an ongoing brake safety program spearheaded by the Commercial Vehicle Safety Alliance (CVSA). Nationally, 7,701 tractor-trailers were inspected, with 10.1% found to have brake adjustment issues and another 8.7% found with out-of-service (OOS) violations for brake components. In Colorado, however, the inspections found 10.8% of trucks with brake adjustment problems and 13.3% with brake component issues, placing Colorado in the top ten of jurisdictions with the highest violations of the 24 jurisdictions inspected.

In addition, another 6.7% of the big rigs were placed out-of-service for other issues uncovered during the inspections, such as driver's license and registration problems.

Another aspect of Operation Airbrake is Brake Safety Week, which includes a series of pre-announced inspections. This year Brake Safety Week was held from September 7-13 and was expected to cover 30,000 commercial vehicles. Hopefully, the surprise inspections last May served as a wake-up call to the trucking industry to get their fleets in compliance with safety codes, so that the results of Brake Safety Week inspections will show an overall improvement in Colorado and across North American trucking.