A Dane County judge upheld a $250,000 malpractice cap against UW-Madison doctors but urged the state Supreme Court to take the case, saying the cap set in 1979 is equal to $72,000 today.
The case involves a Verona woman who won a $1.8 million jury award for her husband’s death. The jury found a UW doctor negligent.
The state limits total damages against UW doctors and other state employees to $250,000. For other doctors, the cap on non-economic damages is $750,000 and economic damages aren’t limited.
Terri Fiez challenged the UW doctor cap, saying it denied her the kind of compensation people receive in lawsuits against other doctors. Nobody had challenged the cap before.
In a ruling Wednesday, Circuit Court Judge John Markson said Fiez hadn’t shown that the cap was unconstitutional, based on recent case law.
But, Markson wrote, “I believe the plaintiffs provide cogent arguments that deserve close examination by our Supreme Court, which is the only court that can modify or overrule the decisions that I believe are controlling.”
Markson said the Legislature set the cap in 1979 at $250,000, equal to $72,000 today. An equivalent cap today would be $800,000, he said.
“How does it meet the rational-basis test to cap Ms. Fiez’s damages at 14 percent of what the jury believed fair and reasonable ...?” he wrote.
Eric Farnsworth, Fiez’s attorney, said he likely will appeal. He said he was encouraged by Markson’s “very obvious belief ... that this is a hugely out-of-date law.”
Steven Means, executive assistant to Attorney General J.B. Van Hollen, said the state Department of Justice had no comment.
The UW doctor, Jonathan Keevil, didn’t respond to a request for comment. UW Health spokeswoman Lisa Brunette declined comment.
Robert Fiez died in 2010 at age 61. He was admitted to UW Hospital after going to the emergency room for chest pain and shortness of breath. Keevil discharged him after two days without doing a blood test for a clot in the lung, and Fiez died four days later from clots in the lung, according to the lawsuit.
Five other doctors were dismissed from the case. In exchange, the state agreed to pay another $250,000, so the total payment is $500,000. That is still much less than the jury awarded, Farnsworth said.
Markson said he upheld the cap because of case law, notably the state Supreme Court’s ruling in July that maintained a similar $50,000 cap against municipalities. A Milwaukee County jury awarded $9 million to Bostco for damage to a Boston Store building, but the court reduced the award to $50,000 for Bostco and $50,000 for another plaintiff.
The caps are designed to protect taxpayers and governments. They stem from the concept of government immunity, which arose in the 1870s.
But Markson said “those historical roots have little to do with the practice of medicine at a tertiary-care facility in the 21st century.”
He said UW doctors could buy malpractice insurance like their competitors do.
It could be a long time before another challenge is filed because the cap typically prevents attorneys from pursuing cases against UW doctors, the judge said.
“It is not often an opportunity to review this cap comes along,” he said.