Misdiagnosis Leads to Sepsis, Amputations, and $16.5 Million Verdict

News: In Wisconsin in mid-2011, a woman suffered gangrene, resulting in the amputation of her four extremities. The cause of the gangrene was a septic infection resulting from an untreated infection that was not disclosed to the patient, or treated. At trial, the jury awarded the patient $15 million, and her husband $1.5 million for loss of consortium.

Before and after the trial, the parties presented arguments about the validity of a Wisconsin statutory cap on noneconomic damages. The cap was found to be unconstitutional on its face because it was “not rationally related to curtailing the practice of defensive medicine,” although this decision may be subject to further litigation.

Background: In May 2011, a woman presented to a Milwaukee ED for abdominal pain and high fever. The patient was seen by a physician and a physician assistant. The physician assistant included infection in his differential diagnosis, but admitted at trial that the patient met the criteria for systemic inflammatory response syndrome. Neither medical professional informed the patient about the diagnosis or the availability of antibiotics as treatment. The patient instead was instructed to follow up with her personal gynecologist for her history of uterine fibroids. The patient’s condition deteriorated.

The next day, the patient visited a different ED, where she was diagnosed with a septic infection caused by the untreated infection. The patient entered a coma and eventually became minimally responsive, and was transferred to another medical facility. Ultimately, the sepsis caused failure of almost all the patient’s organs and led to dry gangrene in all four extremities, necessitating the amputation of all of her extremities.

The patient and her husband sued the physician, physician assistant, an insurance company, and the Wisconsin Injured Patients and Families Compensation Fund, alleging medical malpractice and failure to provide proper informed consent.

Fund representatives filed a pretrial motion to consider constitutionality. The circuit court addressed whether the statutory cap on noneconomic damages, as stated by § 893.55(4)(d)1, was unconstitutional. The circuit court held that the cap was not facially unconstitutional, but allowed the plaintiffs to raise an as-applied challenge to the cap post-trial.

After a lengthy trial, the jury found that both medical professionals failed to provide the patient with the proper informed consent regarding her diagnosis and treatment options. The jury awarded the patient $15 million in noneconomic damages, and awarded her husband $1.5 million for loss of consortium.

Post-verdict, the fund moved to reduce the jury award to the $750,000 statutory cap on noneconomic damages. The plaintiffs moved for entry of judgment on the verdict, arguing that an application of the cap would violate their constitutional rights. They also renewed their pretrial facial challenge to the cap. The parties again fully briefed the constitutional issues and the circuit court reconsidered the constitutional questions.

The circuit court determined that the cap was not facially unconstitutional, but was unconstitutional as applied in this case because it violated the patient’s rights to equal protection and due process. Both parties appealed the constitutionality rulings.

On appeal, the Wisconsin Court of Appeals relied heavily on Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, a 2005 Wisconsin Supreme Court case that stands for the proposition that statutory caps are unconstitutional when their justifications are “so broad and speculative that they justify any enactment.” The Wisconsin Supreme Court instructed that courts, in determining the constitutionality of a statutory cap, should note that “while the connection between means and ends need not be precise, it, at least, must have some objective basis.”

In reaching its decision, the Wisconsin Court of Appeals noted that the cap had “the practical effect of imposing devastating costs only on the few who sustain the greatest damages and create[d] a class of catastrophically injured victims who are denied the adequate compensation awarded by a jury, while the less severely injured malpractice victims are awarded their full compensation.” Thus, the court ruled that the statutory cap was unconstitutional on its face and violated the couple’s due process rights. The appellate court ultimately affirmed the circuit court’s judgment, reinstating the original noneconomic portion of the jury award.

What this means to you: The facts of this case show clearly the importance of adhering to informed consent standards. It is vital that hospitals create informed consent policies that carefully track the case law and medical standards in the relevant jurisdictions and medical communities. Providing continuing medical education on changes to informed consent policies is another means of ensuring compliance and avoiding liability.

To elaborate on the background relevant here, the prevalence of undiagnosed severe sepsis and septic shock among patients in EDs led to the development of screening tools for sepsis, such as the “sepsis bundle” and a standardized diagnostic algorithm that regulatory and accreditation organizations require to be used during the assessment of all patients presenting to EDs. A high fever with abdominal pain signals a “hot abdomen” and requires an immediate surgical consult, as the probability of a bowel content leakage into the sterile abdominal cavity is high. The ensuing infection spreads rapidly into the bloodstream.

Primary sepsis (a direct infection of the blood, usually through injection using contaminated needles) or secondary bacteria in the bloodstream, usually from an untreated or incorrectly treated infection of soft tissue or bone, will become severe quickly and lead to septic shock, a life-threatening situation with a poor prognosis, especially in the very young, elderly, and patients with multiple comorbidities. The lack of communication of findings to the patient, compounded with the lack of screening for sepsis or even the most basic treatment — such as obtaining cultures and beginning broad-spectrum antibiotics — is a serious breach of multiple standards of care and led to the devastating consequences this patient and her spouse will continue to endure for as long as she survives.

Given the recency of this case, it is unclear if it will be appealed to the Wisconsin Supreme Court, although the importance to the medical community would suggest appeal is likely. It would be wise for medical professionals to support such an appeal to avoid an influx of future medical malpractice cases. Attorneys in Wisconsin reported refusal of medical malpractice cases based on the statutory cap at issue in this case. Notably, four of seven of the current Wisconsin Supreme Court justices began their terms post-Ferdon, and thus the judicial climate may have changed since the 2005 case. The state legislature’s stated purpose in enacting the statute was “to ensure affordable and quality healthcare for Wisconsin residents, while also ensuring that victims of medical malpractice are adequately compensated.”

As the court noted in this case, the very same purpose was rejected by the Wisconsin Supreme Court in Ferdon. Further, the alleged connection between the stated purpose and the statutory cap paralleled that of the contested Ferdon statute: the existence or nonexistence of “caps on noneconomic damages [does] not affect doctors’ migration;” “defensive medicine cannot be measured accurately and does not contribute significantly to the cost of healthcare;” “the correlation between caps on noneconomic damages and the reduction of medical malpractice premiums or overall healthcare costs is at best indirect, weak, and remote;” and the cap was not necessary to the financial integrity of the fund. For a Wisconsin medical malpractice statutory cap to be sustainable given the Wisconsin Supreme Court’s Ferdon decision, a different connection between the purpose of the statute and the statutory cap or evidence showing the value of statutory caps likely will be required for a successful further appeal.

More broadly, this case illustrates that the national debate over statutory caps for medical malpractice continues. In the wake of a 2015 Nevada Supreme Court case upholding the Keep Our Doctors in Nevada Initiative, a $350,000 statutory cap that gained overwhelming voter support, several articles have praised the initiative’s success in solving the Nevada medical crisis by keeping insurance rates low and retaining physicians. Similarly supportive of medical malpractice caps is the fact that more than half of U.S. states have enacted such caps, suggesting that state legislatures across the nation see the benefit of limiting noneconomic damages. It is important to bear in mind that damages caps vary by state, and it is advisable to consult with counsel who are well-informed about the laws in the relevant state concerning any particular situation.


  • Decided on July 5, 2017, in the Court of Appeals of Wisconsin, Appeal No. 2014AP2812.