Constitutional challenge to pain and suffering damages in Wisconsin

Caps on pain and suffering get a constitutional challenge in Wisconsin this week.

The state’s Injured Patients and Families Compensation Fund is challenging the bulk of the award for a Milwaukee woman, who had all of her limbs amputated after she failed to get antibiotics at hospital for an infection.

The 53-year-old was awarded $25.3 million — $16.5 million of which were for essentially pain and suffering.

But that greatly exceeds caps on those damages, which is $750,000.

That’s unfair, argued the victim but fund attorney Kevin St. John, in front of the state Supreme Court on Thursday, disagreed.

“The plaintiff’s primary argument at the end of the day boils down to fairness,” St. John said. “But ‘It’s not fair,’ is not a Constitutional argument.”

St. John went on to express the need for those caps.

“By having a limit on one type of damages, you allow actuaries, etcetera, etcetera, to make better predictions about what those liabilities are ultimately going to be,” St. John said.

The woman’s limbs were amputated in 2011 after she went into septic shock when doctors didn’t diagnose her Strep-A infection.

“Her sepsis went unchecked, resulting in a ‘medical tsunami’ making nearly every organ fail and causing dry gangrene in her extremities,” wrote the woman’s attorney, Susan Tyndall.