Bartholomew v. Wisconsin Patients Compensation Fund & Compcare Health Services Insurance

N. PATRICK CROOKS, J.

¶ 131. (concurring). I join the lead opinion, and strongly support its conclusion that "the legislature adopted two caps that apply in the event of death resulting from medical malpractice: a medical malpractice cap for noneconomic damages for predeath claims and a wrongful death cap for noneco-nomic damages for postdeath claims." Lead op., ¶ 16. I write separately to address Justice Butler's concurrence and his erroneous interpretation and application of the phrase "for each occurrence" in Wis. Stat. § 893.55(4)(b)(2003-04).1 He claims that the phrase results in an "occurrence-based total global cap on the recovery of all noneconomic damages that arise *89from medical malpractice." Justice Butler's concurrence, ¶ 154 (footnote omitted). As we discussed in our concurrence in Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.) an interpretation of the phrase "for each occurrence" that imposes a global cap on recovery in both survivorship and wrongful death claims in a suit involving medical malpractice is unconstitutional, leads to an absurd result, and ignores the scope, context, purpose, structure, and even the legislative history of that statute, when looked at with related statutes.

¶ 132. Justice Butler's concurrence advances an interpretation of Wis. Stat. §§ 893.55(4) (b) and (4)(d) that clearly renders the statutes unconstitutional.2 In concluding that the legislature created a total global cap on the recovery of all noneconomic damages arising out of an occurrence of medical malpractice,3 Justice *90Butler's erroneous interpretation of the statute leads to a global cap that is violative of both Article I, Section 5 and Article I, Section 9 of the Wisconsin Constitution, when linked and read together, as well as principles of equal protection.4 As we stated in our concurrence in Maurin:

Such a low cap on noneconomic damages effectively denies plaintiffs the constitutional right to trial by jury under Article I, Section 5 and, in turn, to a remedy as guaranteed by Article I, Section 9 of the Wisconsin Constitution. Moreover, the majority's conclusion is violative of equal protection principles embodied in the Wisconsin and United States Constitutions.

Maurin, 274 Wis. 2d 28, ¶ 197 (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.)(footnotes omitted).

¶ 133. Courts in several other states have reached similar conclusions that, under certain circumstances, statutory damages caps unconstitutionally limit a claimant's access to the courts and right to a remedy.5 It *91has been noted before that medical malpractice cases are very expensive to litigate.6 See id., ¶ 209. The imposition of a global cap on the recovery of all noneco-nomic damages arising out of an occurrence of medical malpractice, as championed in Justice Butler's concurrence, frustrates the ability of medical malpractice claimants to obtain legal counsel and, most significantly, to have access to ¶ a jury trial as guaranteed by Article I, Section 5 of the Wisconsin Constitution, especially when read in conjunction with Article I, Section 9 of that constitution.

¶ 134. Wisconsin courts have long recognized the importance of a litigant's right to a remedy. Maurin, 274 Wis. 2d 28, ¶ 203 (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.) (citing Knickerbocker v. Beaudette Garage Co., 190 Wis. 474, 480-81, 209 N.W.2d 763 (1926)). Article I, Section 9 of the Wisconsin Constitution does not confer any rights per se, but it does ensure a remedy when an injury results from violation of a legal right. Id., ¶ 207. Justice Butler's concurrence states that all claims arising out of an occurrence of medical malpractice — regardless of whether the claim is for injury, for wrongful death, or for both — are subject to the limit established in Wis. Stat. § 893.55(4)(d). Justice Butler's concurrence, ¶ 154. It is important to understand that the imposition of a single global cap on noneconomic damages effectively deprives a wrongful death claimant in a medical malpractice case of a remedy for his or her claim, and forces him or her to share the capped *92amount recovered with claimants for predeath noneco-nomic damages. Lead op., ¶ 111.

¶ 135. Additionally, the erroneous interpretation of Wis. Stat. §§ 893.55(4)(b) and (4)(d), as set forth in Justice Butler's concurrence, violates the equal protection clause of the Wisconsin Constitution, because it unduly burdens medical malpractice plaintiffs without a rational basis to justify such an interpretation. See Maurin, 274 Wis. 2d 28, ¶ 214 (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.). In order to bring an equal protection claim, a party must prove that a statute treats similarly situated members of a class differently. Id., ¶ 212. In medical malpractice cases, no fundamental right is implicated; therefore, a rational basis standard applies. Id. A statute will be upheld under equal protection principles if we find that a rational basis supports the legislative classification. Id.

¶ 136. The rationale adopted in Justice Butler's concurrence fails to advance the purpose of the legislature, and assigns to medical malpractice plaintiffs the unfair burden of maintaining the financial well-being of the medical industry. Id., ¶ 213. As explained in the lead opinion in this case, the application of a single global medical malpractice cap places wrongful death claimants in medical malpractice actions on different footing than wrongful death claimants in other tort actions. Lead op., ¶ 112. This differential treatment of similarly situated claimants offends principles of equal protection. See Maurin, 274 Wis. 2d 28, ¶¶ 212-215 (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.).

¶ 137. Additionally, the application of a single global medical malpractice cap to wrongful death claims for postdeath noneconomic loss of society and compan*93ionship and to survivorship claims for noneconomic loss leads to absurd results. See id., ¶ 194; see also lead op., ¶ 112 n.74. As the lead opinion explained:

the rationality of the law of medical malpractice is compromised when a medical malpractice victim sustains serious injury but survives and is subject to no cap on noneconomic damages, while a victim who is fatally injured and suffers for years before death resulting from medical malpractice is limited in noneconomic damages for predeath claims to the $350,000 wrongful death cap.

Lead op., ¶ 48.

¶ 138. As noted previously, it is important to look at scope, context, purpose, structure, and even the legislative history of the statutes involved. It is relevant to consider the relationship among the principal statutes at issue. Wisconsin Stat. § 893.55(4)(b), the medical malpractice statute, provides, in pertinent part: "[t]he total noneconomic damages recoverable for bodily injury or death ... may not exceed the limit under par. (d) for each occurrence on or after May 25, 1995, from all health care providers... who are found negligent. ..." (Emphasis added.)

¶ 139. Wisconsin Stat. § 893.55(4)(f), relating to wrongful death, provides, in relevant part: "[notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers ... for wrongful death are subject to the limit under s. 895.04(4)." Wisconsin Stat. § 895.04(4), directed at wrongful death claims, provides, in relevant part: "[jjudgement for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed ... $350,000 per occurrence in *94the case of a deceased adult, for loss of society and companionship. ..."

¶ 140. In the Maurin concurrence, we explained that Wis. Stat. §§ 893.55(4)(d) and (4)(f) provide "separate and distinct" limits on noneconomic damages when medical malpractice results in wrongful death. Maurin, 274 Wis. 2d 28, ¶ 177 (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.). As we noted in that concurrence, Wis. Stat. § 655.017 provides " '[t]he amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider ... is subject to the limits under s. 893.55(4)(d) and (f). ...'" Maurin, 274 Wis. 2d 28, ¶ 180 (quoting Wis. Stat. § 655.017) (emphasis in Maurin). Rather than limiting recovery to "the lesser of either the § 893.55(4)(d) limit for medical malpractice or the § 893.55(4)(f) limit for wrongful death. ... § 655.017 directs us to both §§ 893.55(4)(d) and (f) to assess the limits on damages imposed in cases of medical malpractice causing wrongful death." Id., ¶ 181; see also lead op., ¶ 79. The use of the conjunctive word "and" is extremely important in properly interpreting the relationship of these sections.

¶ 141. Having identified a phrase ("for each occurrence") in Wis. Stat. § 893.55(4)(b) that he claims was "ignore[d]" by the lead opinion, Justice Butler's concurrence applies what is claimed to be a plain meaning analysis to the phrase, and reaches the conclusion that such phrase unambiguously creates an "occurrence-based total global cap on the recovery of all noneconomic damages that arise from medical malpractice." Justice Butler's concurrence, ¶ 154 (footnote omitted). His concurrence lacks a thoughtful, careful analysis because the phrase "for each occurrence" is viewed in isolation. The concurrence fails to take into account the *95statutory scope, context, purpose and structure, and ignores the legislative histories of the medical malpractice and wrongful death cap statutes. See lead op., ¶¶ 99-107. A one paragraph analysis of the phrase "for each occurrence" is simply not sufficient under such circumstances.

¶ 142. Far from ignoring the statutory language, the lead opinion engages in a substantive discussion of the "occurrence" language in "Wis. Stat. §§ 893.55(4)(b) and 895.04(4) referring to 'each occurrence' and 'per occurrence,' respectively. . . ." Lead op., ¶ 92. The lead opinion explains that to understand the meaning of the words "for each occurrence" in § 893.55(4)(b), one must consider it in the context of statutory phrases "total noneconomic damages" and "bodily injury or death." Id., ¶ 95.

¶ 143. Because the words "or death" have a separate and distinct meaning in the law from "wrongful death," Wis. Stat. § 893.55(4)(b) must be read as applying "to noneconomic damages for predeath claims, regardless of whether the medical malpractice victim incurs bodily injury or death." Lead op., ¶ 96.1 wholeheartedly agree with the lead opinion that the words "per occurrence" in Wis. Stat. § 895.04(4), the wrongful death statute, do not impose a single global cap on noneconomic damages in medical malpractice actions. The statutory "per occurrence" language was inserted "to ensure that all claimants for wrongful death (that is, claims for postdeath loss of society and companionship) share a single wrongful death cap." Id., ¶ 98; see also id., ¶ 98 n.67.

¶ 144. Furthermore, I am satisfied that the lead opinion is correct when it highlights the Maurin majority's significant observation that it could " 'conceive of no purpose for creating § 893.55(4)(f) if the *96legislature intended to retain the single cap in Wis. Stat. § 893.55(4)(d) [the medical malpractice cap] to cover total noneconomic damages in a wrongful death case involving medical malpractice.'" Lead op., ¶ 94 (quoting Maurin, 274 Wis. 2d 28, ¶ 35 (emphasis in Maurin)). As the lead opinion here explains, subsection (4)(f) "was enacted, as the statutory and legislative histories show, to overturn the case law interpreting the medical malpractice cap as imposing a single global cap for all noneconomic damages in medical malpractice cases regardless of the death of the victim." Lead op., ¶ 94 (citing Rineck v. Johnson, 155 Wis. 2d 659, 665-69, 456 N.W.2d 336 (1990)).

¶ 145. The legislative history buttresses my conclusions here. As we concluded in our concurrence in Maurin, referring to a Memorandum, in regard to 1997 Act 89, from a senior staff attorney at the Legislative Reference Bureau (LRB)7 the LRB "analysis of the bill. . . demonstrates that the bill creates two separate statutory limits, one on noneconomic damages in medical malpractice cases and one on damages for wrongful death (loss of society and companionship) arising from medical malpractice." Maurin, 274 Wis. 2d 28, ¶ 193 (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.) (footnotes omitted). Because it would render that and related statutes unconstitutional, lead to absurd results, and is at odds with the statutory scope, context, purpose, structure, and legislative history, Justice Butler's erroneous interpretation of the phrase "for each occurrence" in Wis. Stat. § 893.55(4)(b) cannot be accepted, even though he *97reaches the correct result as far as the mandate in this case. Where a death results from medical malpractice, the legislature enacted two caps on noneconomic damages, one for predeath claims and a wrongful death cap for postdeath claims. I strongly support the reasoning and conclusions of the lead opinion and write separately in order to respond to Justice Butler's concurrence.

¶ 146. For the forgoing reasons, I join the lead opinion, and respectfully concur.

All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

Contrary to the statement in Justice Butler's concurrence, I would have this court decide constitutional issues that need to be reached based on recent legislative actions. See Justice Butler's concurrence, ¶ 150 n.2. I write to address the constitutional infirmity of the erroneous position set forth in Justice Butler's concurrence. Despite his best effort to avoid the constitutional principles involved, his concurrence is unpersuasive when it contains the claim that our decision in Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, makes a constitutional analysis unnecessary. Such a claim ignores the fact that the Wisconsin Legislature has recently enacted a new cap in Wis. Stat. § 893.55(4)(d) (2005-06).

Justice Butler's concurrence, ¶ 154. His concurrence must be met head-on now, since it could conceivably have significant implications, especially if, in the future, this court, were to find the recently enacted cap on noneconomic damages in Wis. Stat. § 893.55(4)(d) to be constitutional.

Amendment Xiy Section 1 of the United States Constitution states, in relevant part: "No State shall. .. deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Article I, Section 1 of the Wisconsin Constitution states, in relevant part: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed."

See Maurin v. Hall, 2004 WI 100, ¶¶ 198-202, 274 Wis. 2d 28, 682 N.W.2d 866 (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.). States having determined that certain statutory damages caps do unconstitutionally limit *91a claimant's access to the courts and right to a remedy include Florida, Pennsylvania, Texas, New Hampshire, Maine, and Missouri. Id.

The expense of medical malpractice cases is due, at least in part, to the need for expert testimony. See id., ¶ 209.

Maurin, 274 Wis. 2d 28, ¶ 161 n.41 (Abrahamson, C.J., and Crooks, J., concurring, joined in part by Bradley, J.); see also lead op., ¶ 98 n.67.