A Wisconsin woman and her husband were awarded more than $25 million by a Milwaukee jury in an unusual case, which will likely end up challenging Wisconsin’s cap on noneconomic damages.
In 2011, a patient aged 53 years presented at the hospital complaining of severe abdominal pain, rapid heartbeat, and fever. She spent nine hours in the hospital, and was seen by a physician and physician assistant before being discharged and told to contact her gynecologist in the morning for fibroid issues.
The mother of four lost all four limbs after a group A streptoccocal infection went undiagnosed and resulted in sepsis. The patient collapsed at home later on the same day she was discharged and was later diagnosed with septic shock.
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The infection was stopped, but severe damage to her vascular system resulted in the amputation of her arms and legs. The patient sued the physician and PA, claiming that she was never told that a life-threatening bacterial infection, based on her symptoms, was a possible diagnosis.
At trial, her attorney argued that had she known this was a possible diagnosis, she would have sought out additional treatment. Attorneys for the doctor and PA argued that their diagnosis was made based on the information available at the time, and that they had performed a methodical work-up on the patient.
At the time that this incident occurred, Wisconsin had an informed consent law which required health practitioners to provide patients with “alternative medical diagnoses” that could be used to pursue other treatment.
Because the physician and PA had not given the patient all the possible diagnostic options, the jury sided with the patient. They found the physician 65% at fault and the PA 35% at fault, and awarded $8.2 million in health care costs, $15 million for pain and suffering, and $1.5 million to the patient’s husband for loss of consortium.
This case is unusual in that the law requiring practitioners to provide alternative diagnosis was changed last year, after lobbying by the Wisconsin Medical Society and other groups. The law, which previously required clinicians to disclose treatment options that a reasonable patient would want to know, was changed to require clinicians to disclose only what a reasonable physician would tell a patient.
This change is a huge difference, and under the new law it is unlikely that the physician and PA in this case would have been found liable. It is very likely that the case will be appealed because the $15 million in pain and suffering, and the $1.5 million for the husband’s loss of companionship are subject to Wisconsin’s cap of $750,000 on non-economic damages.
The case is considered an excellent opportunity for challenging the cap due to the significant physical damage and substantial monetary award.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y
