Wisconsin considers noneconomic damages subordinate to economic damages in medical-malpractice actions. The state legislature has repeatedly enacted legislation to cap the amount of noneconomic damages a jury can award, ostensibly to solve a health-care system in crisis. In 2005, the Wisconsin Supreme Court in Ferdon v. Wisconsin Patients Compensation Fund invalidated a cap as unconstitutional; in response, the legislature simply increased the cap amount. This Note analyzes the legal and political implications of non-economic-damage award limits, and reasons that the new cap is just as unconstitutional as the old one. Caps not only violate the equal protection clause of the Wisconsin Constitution, but offend public policy and fail to achieve the results the legislature intended. This Note concludes that a strong tort system and a functioning health-care system are not mutually exclusive. Instead of punishing those with the gravest injuries, as the cap does now, Wisconsin -should recognize that victims of medical malpractice deserve the chance to be made whole. This includes more than just lost earning potential or unpaid medical bills. By trusting the jury to make this critical determination, Wisconsin can ensure equality and fairness in its tort system.
