Milwaukee Jury Awards $25.3 Million to Quadruple Amputee Over Undiagnosed Strep A Infection

In May 2011, Ascaris Mayo, a Milwaukee mother of four, went to the emergency room at Columbia St. Mary's Hospital with severe abdominal pain and a high fever. A physician and a physician assistant examined her, tied her symptoms to a history of uterine fibroids, and told her to follow up with her gynecologist. They did not tell her that her symptoms could also point to a Strep A infection, a fast moving condition that can turn deadly within hours.

The next day Mayo returned to a different emergency room. By then the untreated infection had pushed her into sepsis. Her organs began to fail and blood flow to her limbs was cut off. To save her life, surgeons amputated both of her arms and both of her legs. She survived as a quadruple amputee.

Daniel A. Rottier of Habush Habush & Rottier represented Mayo and her husband, Antonio. The case did not rest on a claim that the first providers botched the medicine. The jury found that neither the physician nor the physician assistant was negligent. What it did find was that both failed to give Mayo proper informed consent. They never told her that a Strep A infection was a possible diagnosis or that antibiotics were a treatment option she could choose. Had she known, the plaintiffs argued, she would have pressed for treatment that first night.

In July 2014 the jury, with Judge Jeffrey A. Conen presiding, fixed the damages at $25.3 million. That total included $15 million in noneconomic damages for Mayo, $8.8 million in economic damages, and $1.5 million to Antonio Mayo for loss of his wife's society and companionship.

The verdict set off a long fight over Wisconsin's $750,000 cap on noneconomic damages in malpractice cases. Judge Conen held the cap unconstitutional as applied to Mayo, and in 2017 the state Court of Appeals went further, striking it down on its face for catastrophically injured patients. The Wisconsin Injured Patients and Families Compensation Fund took the question to the state Supreme Court.

On June 27, 2018, the Wisconsin Supreme Court reversed in a 5 to 2 decision. Chief Justice Patience Roggensack wrote that lawmakers had a rational basis for the limit and that it survived equal protection review. The ruling reinstated the $750,000 cap, reducing Mayo's $15 million noneconomic award to that figure. Her economic damages, which the Fund pays without limit, were not affected. Justices Shirley Abrahamson and Ann Walsh Bradley dissented.