Lornson v. Siddiqui

*558N. PATRICK CROOKS, J.

¶ 78. {concurring in part, dissenting in part). I join only that part of the majority opinion which concludes that Holly Lornson and Kim Hoertsch cannot, in their individual capacities, bring claims for their mother's wrongful death because, under Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, ¶ 2, 236 Wis. 2d 316, 613 N.W.2d 120, adult children are not included in the list of eligible claimants in Wis. Stat. § 655.007. Majority op., ¶ 19. I write separately because I strongly disagree with the majority's conclusion that Holly Lornson and Kim Hoertsch, acting as personal representatives of the estate of Joseph Sanders, their father, cannot maintain the wrongful death claim that he had for the death of his spouse, their mother, Janice Sanders.

¶ 79. Under Wis. Stat. § 655.007, Joseph Sanders was eligible to bring a claim for Janice Sanders' wrongful death due to medical malpractice. Section 655.007 states:

On and after July 24,1975, any patient or the patient's representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter.

Among the various statutory provisions found in Chapter 655, none describe what happens to a wrongful death claim for medical malpractice after the death of an eligible claimant. As this court stated in Storm v. Legion Insurance Co., 2003 WI 120, ¶ 34, 265 Wis. 2d 169, 665 N.W.2d 353: "Chapter 655 is not exclusive in the sense that it is a comprehensive set of procedural rules for medical malpractice claims." Rather, numerous other statutes outside of Chapter 655 also apply, including civil procedure and discovery statutes. Id. As *559we stated in Stappas v. Kagan, 109 Wis. 2d 528, 530, 326 N.W.2d 757 (1982), "When Chapter 655 is silent on an issue, the law applicable to civil actions governs."

¶ 80. It is helpful, then, to examine Chapter 877 of Wisconsin's Probate Code, in order to determine the authority of personal representatives to continue an action for the estate of an eligible claimant upon the death of the claimant. Wisconsin Stat. § 877.01 makes direct reference to Chapter 895, providing:

If a cause of action survives under ch. 895, a personal representative may maintain an action on the cause of action against the wrongdoer in every case in which the decedent could, if living, maintain the action and, after the wrongdoer's death, against the wrongdoer's personal representative, except that this section shall not extend to actions for slander or libel.

The majority opinion does not claim that § 877.01 is ambiguous, but disallows the personal representatives' wrongful death claim here chiefly because the decedent's adult children are his estate's personal representatives. Majority op., ¶ 75.

¶ 81. It seems clear based on the language of Wis. Stat. § 895.01(l)(o) that the claim for Janice Sanders' wrongful death survived. That section provides that among causes of action that survive are "[clauses of action for wrongful death, which shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death of the injured person." (Emphasis added.)

¶ 82. I strongly agree with the personal representatives' position that Wis. Stat. § 895.01(l)(o) unambiguously states that a cause of action for wrongful death survives the death of the claimant, as well as the death of the wrongdoer. Majority op., ¶ 33. Since the *560language of § 895.01(l)(o) is unambiguous, we should not consult extrinsic sources of interpretation, such as legislative history. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. We give statutory language its "common, ordinary, and accepted meaning," while also looking at the context and the structure of the statute in which the operative language appears. Id., ¶¶ 45-46.

¶ 83. The personal representatives correctly point out that, in Wis. Stat. § 895.01(l)(o), the phrase that follows the comma — "which shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death of the injured person" — is a nonrestrictive, relative pronoun clause, meaning that the phrase about the death of the wrongdoer provides additional, but not essential, information about the phrase it modifies. Majority op., ¶ 33.1 wholeheartedly agree that in accord with § 895.01(l)(o), all causes of action for wrongful death survive, regardless of the death of the wrongdoer or the death of the claimant.

¶ 84. The majority relies on five "pieces of evidence" in claiming that the legislature made a substantive change to Wis. Stat. § 895.01(l)(o), and did not intend to do so, when it amended the statutes in 1999. Majority op., ¶ 54. The majority opinion then concludes that a wrongful death claim does not survive the death of the claimant. Majority op., ¶ 60. The majority opinion especially emphasizes the fact that the bill that led to 1999 Wis. Act 85 is a Revisor's Correction Bill. Majority op., ¶ 57. The majority states that the revisor rarely makes any substantive change in the law, but provides no authority to support such a claim. Id. Wisconsin Stat. § 13.93(2)(j) states in relevant part that the revisor of statutes shall, "[i]n cooperation with the *561law revision committee, systematically examine and identify for revision by the legislature the statutes and session laws to eliminate defects, anachronisms, conflicts, ambiguities, and unconstitutional or obsolete provisions." (Emphasis added.) The State of Wisconsin 2005-2006 Blue Book describes the responsibilities of the revisor of statutes bureau as follows:

The bureau prepares revisor's corrections bills to correct errors or resolve conflicts arising from the enactment of laws. It reviews attorney general's opinions, federal district and appellate court decisions, and state appellate or supreme court decisions that declare a Wisconsin statute or session law to be ambiguous, in conflict with other laws, anachronistic, unconstitutional, or otherwise in need of revision.

State of Wisconsin 2005-2006 Blue Book 303 (Lawrence S. Barish, ed. 2005). These responsibilities are significant, despite the majority's assertion that the revisor's duties are "mainly ministerial and editorial...." Majority op., ¶ 55. Bills submitted to the legislature by the revisor of statutes and enacted into law "nevertheless are acts of the legislature, and where there is no ambiguity such acts must be applied as they read. ..." Dovi v. Dovi, 245 Wis. 50, 53, 13 N.W.2d 585 (1944).

¶ 85. The majority opinion states that the 1999 amendment to Wis. Stat. § 895.01(l)(o) through 1999 Wis. Act 85, § 171 rendered the wrongful death survival provision ambiguous and in conflict with other statutory sections. I strongly disagree. The duty of the revisor of statutes is to eliminate conflicts and ambiguities, not to create them. The insertion of a comma and the word "which" into § 895.01(l)(o) made it clear that causes of action for wrongful death survive. It makes no difference whether the claimant or the wrongdoer dies; the wrongful death action survives such death.

*562¶ 86. The majority opinion examines Wis. Stat. § 895.04(2) and claims to find ambiguity in and conflict with § 895.01(1)(o), because of a hierarchy of eligible claimants, through an examination of legislative history. See Majority op., ¶¶ 37-42. Under Kalal, since the plain meaning of Wis. Stat. §§ 895.01(1)(o) and 877.01 are evident, and since the daughters of Joseph Sanders are not claimants in their individual capacities, but as personal representatives of their father's estate, § 895.04(2) is not relevant here, nor is the supposed legislative history. Furthermore, the majority's reliance on Eleason v. Western Casualty & Surety Co., 254 Wis. 134, 139, 35 N.W.2d 301 (1948) is inapposite because that case involved children taking over a wrongful death claim as individual claimants, not as the personal representatives of the estate of the original litigant, as in the present case. Majority op., ¶ 39.

¶ 87. In Ferdon v. Wisconsin Patients Compensation Fund, 2005, WI 125, ¶¶ 89, 91, 284 Wis. 2d 573, 701 N.W.2d 440, we discussed the legislative objectives involved in the enactment of Chapter 655:

The primary, overall legislative objective is to ensure the quality of health care for the people of Wisconsin. The legislature obviously did not intend to reach this objective by shielding negligent health care providers from responsibility for their negligent actions. After all, "[i]t is a major contradiction to legislate for quality health care on one hand, while on the other hand, in the same statute, to reward negligent health care providers."
Legislative Objective #1: Ensure adequate compensation for victims of medical malpractice with meritorious injury claims. The legislature retained the tort system as a means of identifying health care providers *563who are practicing below the required due care standards and as a means of deterring them and other health care providers from negligent practices. The legislature obviously considers noneconomic injuries to be real injuries for which plaintiffs should be compensated in appropriate cases.

(quoting Farley v. Engelken, 740 P.2d 1058, 1067 (Kan. 1987)(footnotes omitted). These legislative objectives are frustrated by the approach advocated by the majority, which would deny the estate of Joseph Sanders the opportunity to establish his claim of medical malpractice. The result is that those claimed to have been negligent will be shielded from responsibility for any negligent actions.

¶ 88. For the reasons stated herein, I respectfully concur in part and dissent in part.

¶ 89. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this concurrence/dissent.