¶ 189. {concurring). I join the majority opinion and its holding that the $350,000 cap on noneconomic medical malpractice damages in Wis. Stat. §§ 655.015 and 893.55(4)(d) (2001-02) (adjusted for inflation) violates the equal protection guarantees of Article I, Section 1 of the Wisconsin Constitution. See majority op., ¶ 10. I write separately, however, to emphasize that statutory caps on noneco-nomic damages in medical malpractice cases, or statutory caps in general, can be constitutional. While the majority states that this case does not take issue with the constitutionality of all statutory caps, see majority op., ¶ 13, I want to stress that such caps can satisfy the requirements of the Wisconsin Constitution. However, I am convinced that the current cap on noneconomic medical malpractice damages is unconstitutional. The stated legislative objectives, when reviewed in accord with a rational basis test, provide insufficient justification for that cap under the equal protection clause and, further, the $350,000 cap is too low to satisfy the right to a jury trial as guaranteed in Article I, Section 5,1 when considered in conjunction with the right to a remedy in Article I, Section 92 of the Wisconsin Constitution.
*677¶ 190. In Wisconsin, the history behind the legislature's setting of caps for noneconomic damages in medical malpractice actions demonstrates arbitrariness, and leads to a conclusion that a rational basis justifying the present cap was, and is, lacking. When Wis. Stat. ch. 655 was first enacted in 1975, there was no cap on noneconomic damages, but a $500,000 conditional cap that could be triggered if the Wisconsin Patient Compensation Fund's cash-flow was in jeopardy. See majority op., ¶ 133. Then, in 1986, the legislature set the cap at $1,000,000. This $1,000,000 cap remained in effect until 1991, when a sunset provision became effective. There was no cap on noneconomic damages from 1991 until the legislature passed the current statutory cap of $350,000 in 1995. Thus, the caps changed from nothing, to $1,000,000, back to nothing, and finally to $350,000 over the course of 20 years.
¶ 191. The legislative history behind this current cap further reveals no rational basis justification for settling on the amount of $350,000. The bill involved, as originally drafted, set a cap on noneconomic damages at $250,000. However, a number of alternatives were suggested throughout the legislative process, ranging from $1,000,000, to nothing, to $250,000, to $350,000. The final act set the cap at $350,000, without providing any explanation for the jump from the original $250,000. See majority op., ¶¶ 136-37. It appears quite clear that the legislature settled on an amount for the noneconomic damage cap without a rational basis for doing so. It seems as if the $350,000 figure was plucked *678out of thin air. Such an arbitrary cap, see majority op., ¶¶ 10,177, "is violative of the equal protection clause in the Wisconsin Constitution, since it unduly burdens medical malpractice claimants without a rational basis that justifies ..." its stated legislative objectives. Maurin v. Hall, 2004 WI 100, ¶ 214, 274 Wis. 2d 28, 682 N.W.2d 866, (Abrahamson, C.J. and Crooks, J., concurring). Statutory caps " 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation' in order to satisfy State equal protection guarantees." Carson v. Maurer, 424 A.2d 825 (N.H. 1980) (citation omitted).
¶ 192. I also conclude that this cap on noneco-nomic damages violates Article I, Section 5 when linked to Article I, Section 9 of the Wisconsin Constitution. Although the majority opinion does not fully address this issue, I conclude that these two provisions of the Wisconsin Constitution may be applied together to determine whether the noneconomic damages cap of $350,000 was set unreasonably low, thus making it unconstitutional on that basis as well. See Maurin, 274 Wis. 2d 28, ¶ 197 (Abrahamson, C.J. and Crooks, J, concurring). In this case, the jury awarded Ferdon $700,000 in noneconomic damages. The circuit court, however, had no choice but to reduce these damages to $410,322 — the equivalent of the $350,000 cap adjusted for inflation. Consequently, Ferdon lost a significant portion of the full damage award — more than 41 percent — as determined by the jury. The jury verdict for damages was reduced by $289,678 in light of the $350,000 cap. While I recognize that the legislature may place a statutory cap on noneconomic damages in medical malpractice actions, the cap cannot be set *679unreasonably low.3 If $1,000,000 was the appropriate figure for the cap in 1986, how can a $350,000 cap satisfy the constitutional requirements nine years later? "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." Id. (footnote omitted).
¶ 193. As Chief Justice Abrahamson and I noted in the Maurin concurrence, other jurisdictions have found similar state constitutional violations resulting from noneconomic damage caps in medical malpractice actions. For example, the Florida Supreme Court struck down its legislature's attempt to impose a $450,000 cap on noneconomic damages. In Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987), the court read two provisions of its state constitution — access to courts for redress for a particular injury and trial by jury — in conjunction with one another. In doing so, the court stated:
Access to courts is granted for the purpose of redressing injuries. A plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress for injuries if the legislature statutorily, and arbitrarily, caps the recovery at $450,000. Nor, we add, because the verdict is being arbitrarily capped, is the plaintiff receiving the constitutional benefit of a jury trial as we have heretofore understood that right. Further, if the *680legislature may constitutionally cap recovery at $450,000, there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000 or $1,000, or even $1.
Id. at 1088-89.
¶ 194. In Maine, the Supreme Judicial Court determined that a statutory cap set too low could result in a denial of the constitutional right to trial by jury and a denial of the right to a remedy. In Peters v. Saft, 597 A.2d 50 (Me. 1991), the court stated that "it is conceivable that a statute could limit the measure of tort damages so drastically that it would result in a denial of the right to trial by jury and the denial of a remedy...." Id. at 53. Other states have thought it necessary to overturn caps on similar grounds.4
¶ 195. In sum, I conclude that this particular cap on noneconmic damages, set arbitrarily and unreasonably low by the legislature, violates Article I, Section 1, as well as Article I, Section 5 interpreted in conjunction with Article I, Section 9, of the Wisconsin Constitution.
¶ 196. Wisconsin can have a constitutional cap on noneconomic damages in medical malpractice actions, but there must be a rational basis so that the legislative objectives provide legitimate justification, and the cap must not be set so low as to defeat the rights of *681Wisconsin citizens to juiy trials and to legal remedies for wrongs inflicted for which there should be redress.
¶ 197. For these reasons, I respectfully concur.
¶ 198. I am authorized to state that Justice LOUIS B. BUTLER, JR. joins in this concurrence.
Article I, Section 9 of the Wisconsin Constitution states in relevant part: "Every person is entitled to a certain remedy in *677the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws."
I agree with the majority opinion that a statutory cap set too low may also violate the equal protection clause of the Wisconsin Constitution: "We have said that a statutory limit on tort recoveries may violate equal protection guarantees if the limitation is harsh and unreasonable, that is, if the limitation is too low when considered in relation to the damages sustained." Majority op., ¶ 111 (citations omitted).
See also Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251 (Kan. 1988), overruled in part not relevant here, by Bair v. Peck, 811 P.2d 1176 (Kan. 1991) (The Kansas Supreme Court struck down a bill capping noneconomic damages, finding them to be arbitrary and in violation of both the right to trial by jury and the right to a remedy under the Kansas Constitution.); Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988) (citation omitted) (the Texas Supreme Court held that a statutory cap on noneconomic damages limited a litigant's "right of access to the courts for a 'remedy by due course of law.'").