¶ 160. (concurring in part, dissenting in part). In Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, this court was asked to interpret and apply the medical malpractice and wrongful death statutes in the case of a child who died as the result of a physician's failure to diagnose her acute diabetic ketoacidosis.
¶ 161. The facts were critical to the disposition of the case. The child's mother brought her to a clinic on a *106Tuesday. Late Wednesday evening, the child was taken to a hospital. The failure to make a correct diagnosis occurred at this time. The next morning, Thursday, the child was returned to the hospital where a correct diagnosis was made. After the hospital attempted treatment, it rushed the child to Children's Hospital of Wisconsin in Milwaukee. On Friday the child died. The child lost consciousness during the ambulance ride to Children's Hospital.
¶ 162. In subsequent litigation, a Washington County jury awarded the child's estate $550,000 for the child's pre-death pain and suffering. It awarded $2,500,000 to the child's parents as wrongful death damages for their loss of society and.companionship. At that time, there was a cap of $381,428 on medical malpractice noneconomic damages and a cap of $150,000 on wrongful death noneconomic damages.
¶ 163. The Washington County Circuit Court determined that the $150,000 wrongful death cap was unconstitutional. This ruling made the child's parents eligible for the $2,500,000 jury award. However, the court remitted the $550,000 award for the child's pre-death pain and suffering to $100,000.1
¶ 164. In this court, the plaintiffs sought to uphold the $2,500,000 award and to overturn the remit-titur. As a fallback position, plaintiffs sought to add the two caps of $381,428 and $150,000 for an award of $531,428.
¶ 165. Two members of the court — Chief Justice Abrahamson and Justice Crooks — bought into the plaintiffs' argument that the wrongful death cap was unconstitutional. Three members of the court — Chief *107Justice Abrahamson, Justice Bradley, and Justice Crooks — declared that the circuit court erroneously exercised its discretion in remittitur. The same three members of the court concluded that the statutory scheme made the plaintiffs eligible for the limits on noneconomic damages for both medical negligence and wrongful death, i.e., $531,428.
¶ 166. A majority of the court concluded that the statutory scheme contemplated a single award for a single occurrence in a medical malpractice case. Derivative claims from that single occurrence were governed by the applicable cap, which, in that case, was the wrongful death cap. The court's analysis in reaching this conclusion is set out at considerable length. Maurin, 274 Wis. 2d at 28, ¶¶ 18-89.
¶ 167. The present case has very different facts because Helen Bartholomew lived for five years after the alleged malpractice. That she ultimately died does not alter the fact that she clearly qualified under the medical malpractice statute. Her husband Robert's derivative claims did not need to be brought under the wrongful death statute.
¶ 168. I join the concurrence/dissent of Justice Roggensack in its entirety because it fully explains Maurin and produces a fair result in this case.
¶ 169. In retrospect, a judicial writer is often able to conceive of a more precise, inclusive, or felicitous phrase than one he used in a published opinion. That is true with the Maurin opinion. Yet, after reflection, I would not change the substance or analysis of the Maurin opinion in any significant way because I think now, as I thought then, that it faithfully follows the language of the statute and the legislature's intent.
¶ 170. As Abraham Lincoln might have put it, if I were to try to answer all the attacks on my opinions, *108"this shop might as well be closed for any other business. I do the very best I know how — the very best I can; and I mean to keep on doing so until the end." If the fair-minded reader reviews the Maurin analysis and agrees with the opinion, then all the condemnation won't amount to anything. If the fair-minded reader thinks the analysis is not supported by the statutes, then ten angels swearing otherwise will make no difference.
¶ 171. For the foregoing reasons, I write separately.
The child was conscious for less than 24 hours after the misdiagnosis.