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Medical malpractice case challenges non-economic award cap

July 30, 2014 Medical Malpractice

hospital signA jury in Milwaukee has awarded a woman $25.3 million in a medical malpractice case that involves the failure of a doctor and a physician’s assistant’s failure to provide an alternative diagnosis. She was told that her severe abdominal pain, rapid heartbeat, and a fever was the result of fibroid issues that she needed to consult her gynecologist for. What she actually had was strep A infection, the type which causes strep throat, that caused her to go into septic shock and resulted in the amputation of all of her limbs. The malpractice was not that the doctor and the physician’s assistant were negligent but that they failed to inform her of the alternative possibility for which she might have sought treatment. A course of antibiotics would have headed off the infection, hence he septic shock, and hence the amputation.

There are two aspects to the case that are of interest besides the horrible severity of the woman’s injuries. First her case was litigated under a previous informed consent law that required doctors to be more forthcoming about what can and cannot be told a patient. A new law was signed by Gov. Scott Walker subsequent to the case which lowered the bar for what should be told to a patient and thus may have made it impossible for the woman to win a malpractice suit.

Secondly the award is a direct challenger of Wisconsin’s cap on pain and suffering awards. $8.2 million of the award is for past and future medical costs for the woman. $15 million is for pain and suffering and $1.5 million is for the woman’s husband’s loss of companionship. However Wisconsin law limits non-economic damages to $750,000. The defendants are expected to appeal the award as a result.

In Indiana, the amount of damages that an injured patient can obtain in a medical malpractice lawsuit is limited by state statute. An injured patient can obtain a maximum of $250,000 in damages. If an injured person’s damages exceeds $250,000, then the patient must petition the patient compensation fund for additional funds, up to an additional one million dollars. So, the total cap is $1.25 million. For more information contact the Indiana medical malpractice lawyers at Wilson Kehoe Winingham..

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