¶ 199. (dissenting). Matthew Ferdon suffered a life-changing injury to his arm at birth as the result of medical malpractice. He deserves fair compensation. Years ago the legislature established a patients compensation system, including mandatory health care provider insurance and a Patients Compensation Fund, that will assure that Matthew and other medical malpractice victims receive all the economic damages such as medical expenses, physical therapy, and loss of earnings and earning capacity, that a judge or jury is prepared to award.
¶ 200. To stabilize liability costs in this guaranteed payment system, the legislature capped noneco-nomic damages that compensate a patient for such unquantifiable harms as pain and suffering. In 1995 this cap was $350,000. Because it was indexed for inflation, the cap today is $445,755.
¶ 201. Caps on noneconomic damages are part of a broad legislative strategy to keep health care affordable and available in a way that will benefit Wisconsinites as a whole. Even when this strategy works exactly as intended, it has the effect of limiting the noneco-nomic damages for some patients.
¶ 202. The principal issue presented in this case is whether the cap on noneconomic damages in Wisconsin medical malpractice cases is constitutional.
¶ 203. Some members of the court, irrespective of what they say in this opinion, believe that all caps on noneconomic damages are unconstitutional. In his con*682currence, Justice N. Patrick Crooks contends that some damage caps are constitutional but not the cap set by the legislature in this case.
¶ 204. "Our form of government provides for one legislature, not two." Flynn v. DOA, 216 Wis. 2d 521, 529, 576 N.W.2d 245 (1998). This court is not meant to function as a "super-legislature," constantly second-guessing the policy choices made by the legislature and governor. In part, this is because
The legislature has the ability to hear from everybody —plaintiffs' lawyers, health care professionals, defense lawyers, consumer groups, unions, and large and small business.... And, ultimately, legislators make a judgment. If the people who elected the legislators do not like the solution, the voters have a good remedy every two years: retire those who supported laws the voters disfavor.
Victor Schwartz, Judicial Nullification of Tort Reform: Ignoring History, Logic, and Fundamentals of Constitutional Law, 31 Seton Hall L. Rev. 688, 689 (2001).
¶ 205. Today, a majority of this court utilizes several unacceptable tactics to invalidate a legislative act.
¶ 206. First, the majority relies on the Wisconsin Constitution, not the United States Constitution, to nullify legislation. This tactic assures that the court's decision will receive minimal scrutiny from legal scholars and no review by the United States Supreme Court.
¶ 207. Second, the majority alters the test for reviewing the constitutionality of legislation on equal protection grounds, where the legislation does not affect a fundamental right. It moves from a "rational basis" test, long established in our law, to an intermediate scrutiny test which it euphemistically labels "rational basis with teeth."
*683¶ 208. Third, the majority lays the groundwork for invalidating other damage caps and preventing the legislature from responding to this decision. When the court insulates its decisions from review by the United States Supreme Court and response by other branches of state government, it is effectively destroying the checks and balances in our constitutional system.
¶ 209. Fourth, the majority marshals non-Wisconsin studies and articles to undermine decisions made in and for Wisconsin by our legislature. The use of these studies is selective, not comprehensive, so that non-Wisconsin studies that would support our legislation are played down, overlooked, or disregarded.
¶ 210. Finally, in direct contradiction to the applicable level of scrutiny, the majority systematically minimizes the importance of facts that support the constitutionality of the legislation. For instance, the majority ignores the fact that certain types of malpractice insurance premiums have actually decreased in Wisconsin, while similar premiums have climbed in other states.
¶ 211. In this dissent, I will concentrate on three issues. First, I will discuss the majority's adoption of "rational basis with teeth," which, in reality, "is simply intermediate scrutiny without an articulation of the factors that triggered it."1 Second, I will discuss the broad sweep of the majority's rationale in relation to the narrow issue before the court.
¶ 212. Finally, I will take issue with the majority's conclusion that the legislature had no rational basis for enacting the medical malpractice noneconomic damage cap.
*684HH
¶ 213. First, I disagree with the majority's ultimate determination of the applicable level of scrutiny.
¶ 214. Initially, the majority states: "We agree with the Fund that rational basis, not strict scrutiny, is the appropriate level of scrutiny in the present case." Majority op., ¶ 65. But the opinion gives rational basis a "makeover," and it reappears as "rational basis with teeth." ("Whether the level of scrutiny is called rational basis, rational basis with teeth, or meaningful rational basis, it is this standard we now apply in this case." Majority op., ¶ 80.) This obfuscation implies that these three standards are equivalent.
¶ 215. It should be apparent that these three different standards are not equivalent.2 The "rational *685basis with teeth" standard is actually closer to the "intermediate level of scrutiny" than to rational basis review. Compare the following definitions: 1) "Under intermediate scrutiny, the classification 'must serve important governmental objectives and be substantially related to achievement of those objectives.'" Majority op., ¶ 63 (citing Craig v. Boren, 429 U.S. 190, 197 (1976)); 2) The rational basis with teeth standard
*686focuses on the legislative means used to achieve the ends. This standard simply requires the court to conduct an inquiry to determine whether the legislation has more than a speculative tendency as the means for furthering a valid legislative purpose. "The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational."
Majority op., ¶ 78 (citing Gerald Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 18-19 (1972)). Equating "rational basis" and "rational basis with bite" is "indefensible," a mere sleight-of-hand presaging the application of heightened scrutiny without the label.3
¶ 216. By contrast, the "rational basis" standard that this court has long adhered to is much more deferential.
"A legislative classification is presumed to be valid. The burden of proof is upon the challenging party to establish the invalidity of a statutory classification. Any reasonable basis for the classification will validate the statute. ... The basic test is not whether some inequality results from the classification, but whether there exists any reasonable basis to justify the classification.
"Judicial response to a challenged legislative classification requires only that the reviewing court locate some reasonable basis for the classification made. The public policy involved is for the legislature, not the courts, to determine."
Sambs v. City of Brookfield, 97 Wis. 2d 356, 371, 293 N.W.2d 504 (1980) (citation omitted). Perfection is not required: the rational basis test, properly stated and *687understood, "does not require a statute to treat all persons identically, but it mandates that any distinction have some relevance to the purpose for which the classification is made." Doering v. WEA Ins. Group, 193 Wis. 2d 118, 131-32, 532 N.W.2d 432 (1995).
¶ 217. The majority opinion's extensive discussion of the appropriate level of scrutiny stands in stark contradiction to our earlier cases. In cases like Sambs, the court was able to state the rational basis test in a few paragraphs. Here, pages and pages of obfuscation are required to disguise the majority's adoption of a new level of scrutiny never used before in Wisconsin. This requires the concurrence to refer to "a rational basis test" rather than "the rational basis test." Justice Crooks' concurrence, ¶ 189. In Wisconsin, until today, there was only one "rational basis test." Now there are two.
¶ 218. Constitutional law scholar Laurence Tribe describes rational basis with bite as "covertly heightened scrutiny," and warns that "covert use [of heightened scrutiny] presents dangers of its own." 2 Laurence H. Tribe, American Constitutional Law § 16.3 at 1443, 1445 (2d ed. 1988). Such a practice promotes arbitrariness and allows courts to "remain essentially unaccountable." Id.
¶ 219. The "unaccountability" Professor Tribe warns of is simple to perceive. In future cases, the majority will be able to rely on "rational basis with teeth" to invalidate legislation that does not suit the majority's fancy.
¶ 220. Professor Tribe further cautions that "with no articulated principle guiding the use of this more searching inquiry, even routine economic regulations may from time to time succumb to a form of review *688reminiscent of the Lochner era." Today, the majority inaugurates the "Ferdon era."
¶ 221. As the majority admits, majority op., ¶ 79 n.95, Tribe argues that "A far better approach would subject to heightened review only those classifications determined to be quasi-suspect after explicit judicial debate over the reasons for so regarding them ...." 2 Laurence Tribe, American Constitutional Law, § 16.3 at 1445 (2d ed. 1988) (emphasis added).
¶ 222. The choice of the applicable level of scrutiny is extremely important. One treatise examining courts' treatment of noneconomic damage caps notes that,
[t]hose decisions that have applied a rational basis test have almost uniformly upheld the statutory caps on noneconomic damages. In contrast, where the courts have invalidated such laws on equal protection grounds, the governing test has been more stringent, usually an "intermediate" level of scrutiny, or "heightened scrutiny, but not as demanding as strict scrutiny." 3 Jacob A. Stein, Stein on Personal Injury Damages § 19:3 (3d ed. 2005).4
¶ 223. The majority equates "rational basis" and "rational basis with teeth" as if the choice between them is unimportant. In fact the opposite is true: when process is respected, the level of scrutiny is often outcome-determinative. The majority's result-oriented focus made it necessary to disguise the level of scrutiny in an attempt to justify its result.
*689HH 1 — 1
¶ 224. Second, I object to the exceedingly broad scope of the majority's rationale, in light of the narrow issue before us. The majority's studies and statistics are geared to support its position that the cap violates equal protection because "[tjhose who suffer the most severe injuries will not be fully compensated for their noneco-nomic damages, while those who suffer relatively minor injuries with lower noneconomic damages will be fully compensated." Majority op., ¶ 98.
¶ 225. Such a statement would be true of any cap on damages. All caps have that effect.5 A perfect example is the cap limiting damages against state employees to $250,000.6 Under the majority opinion, a plaintiff alleging that a state-employed health-care provider injured him could claim an equal protection violation on several theories. First, consistent with the majority opinion, the plaintiff could claim that the cap discriminates against plaintiffs who obtain awards above the cap. Second, the plaintiff could complain that the cap discriminates against young patients and patients with multiple family members. Third, the plaintiff could claim that the cap creates two classes of plaintiffs: those injured by state-employed health care providers and *690those injured by private health care providers. In light of this opinion, if an appropriate case were to come before us, the majority would have difficulty distinguishing a cap on malpractice by government-employed health care providers from a cap on malpractice by private health care providers.
¶ 226. It must be remembered in assessing the majority's disavowal of any impact of its decision beyond this case that the majority uses and quotes some of the reasoning that invalidated the retroactive application of a $1,000,000 noneconomic damages cap. Martin v. Richards, 192 Wis. 2d 156, 210, 531 N.W.2d 70 (1995). And just a year ago, two members of the current majority voted to strike down the cap on wrongful death damages.7 The majority denounces any cap on medical malpractice because it "diminishes the deterrent effect of tort law." Majority op., ¶ 89. The implication is that medical doctors feel free to act negligently simply because there is a cap on noneconomic damages. The majority's citation of authority for this assertion is taken out of context, and stands only for the proposition that tort law is supposed to have a deterrent effect. Nothing in the cited hornbook discusses whether caps add to or detract from this effect.
I — I HH HH
¶ 227. Finally, I strongly disagree with the majority's conclusion that the legislature did not have a rational basis to enact the cap on noneconomic damages in medical malpractice actions contained in Wis. Stat. § 893.55(4)(d).
*691¶ 228. To understand the legislature's motivations, one must understand the history of the burgeoning medical malpractice problem over the final quarter of the twentieth century.
¶ 229. As of 1975, the legislature believed it faced a health care crisis. Ch. 37, Laws of 1975; see also Maurin v. Hall, 2004 WI 100, ¶¶ 49-50, 274 Wis. 2d 28, 682 N.W.2d 866; State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 509, 261 N.W.2d 434 (1978). Accordingly, it created chapter 655 of the statutes. Ch. 37, Laws of 1975. As part of that endeavor, it made eleven findings regarding the nature of the crisis. § 1, ch. 37, Laws of 1975; majority op., ¶ 86 n.101. Having set forth the legislative findings, the majority takes it upon itself to "summarize" the legislative findings into five judicial findings. Majority op., ¶ 86. From these summarized findings, the majority "deduces" legislative objectives.
¶ 230. The majority alleges that the first "objective" is "[e]nsur[ing] adequate compensation for victims of medical malpractice with meritorious injury claims." Majority op., ¶ 91.
¶ 231. The second objective, according to the majority, is to reduce the size of medical malpractice awards, thereby reducing malpractice insurance premiums. Majority op., ¶ 92.
¶ 232. The third objective, according to the majority, is to keep the annual Fund assessments at a reasonable rate and protect the Fund's financial status. Majority op., ¶ 93.
¶ 233. The fourth objective, according to the majority, is to reduce overall health care costs. Majority op., ¶ 94.
¶ 234. The fifth objective, according to the majority, is to encourage health care providers to practice in
*692Wisconsin, reducing the practice of defensive medicine, and retaining malpractice insurers in Wisconsin. Majority op., ¶ 95.
¶ 235. The majority takes a novel approach to nullifying the damage cap. Instead of concentrating its fire on Wisconsin's enactment of the damage cap, the majority attacks the effectiveness of any cap on noneco-nomic damages anywhere, and concludes that no such cap has had any effect at all on any of the five legislative objectives it deduced.
¶ 236. The breadth of this holding is staggering. It means that, contrary to the majority's narrow statement of the issue, it will be very difficult for Wisconsin legislators to re-enact a cap on noneconomic damages in the future. The majority has attempted to insulate its ruling from legislative reaction and redress by making its ruling so broad.
¶ 237. Accordingly, in the following sections of this dissent, I am compelled to cite not only local studies that show the effectiveness of the cap contained in Wis. Stat. § 893.55(4)(d), but also national studies establishing the effectiveness of medical malpractice caps.
¶ 238. The majority concludes that there is no rational relationship to any of the five objectives that it says might justify the cap. It is wrong on every count.
A. The Damage Cap Helps Ensure Adequate Compensation at Reasonable Cost
¶ 239. The majority's first "legislative objective," ensuring adequate compensation for plaintiffs, is not explicitly listed in the statutory findings. Nevertheless, it represents a reasonable summation of the whole purpose of Chapter 655 and exposes the absurdity of this court's holding that medical residents are not *693covered by Chapter 655. See Phelps v. Physicians Ins. Co., 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643.
¶ 240. As Justice Roggensack carefully explains in her dissent, Wisconsin's patients compensation system guarantees unlimited coverage of economic damages obtained in a settlement or at trial. It requires doctors to purchase liability insurance coverage and requires health care providers to pay annual assessments into the Fund. Thus, a cap helps ensure predictable and certain compensation for medical malpractice patients.
¶ 241. By contrast, plaintiffs in other kinds of tort cases, even wrongful death suits in which there is a statutory cap, sometimes may be able to prove more than a million dollars in noneconomic damages but they are rarely able to recover that amount from defendants. That is why underinsured motorist coverage is so important in motor vehicle accidents.
¶ 242. The majority belittles Ferdon's $410,000 award in noneconomic damages to supplement his $403,000 award for future medical expenses. This money will be paid. How many motorists purchase $500,000 in liability coverage in the event they injure another motorist, or $500,000 in underinsured motorist coverage for situations in which they are injured by another driver? If Ferdon were to suffer an equivalent injury in a work-related accident, would workers' compensation payments even come close to the total payment in this case?
¶ 243. To understand the stabilizing effect of the noneconomic damage cap, one must understand the nature of the unreformed medical malpractice liability system. "Taken as a whole, the [unreformed] medical liability system appears to be, quite simply, ineffective at consistently penalizing negligence. Appropriate acts *694of medical care can easily result in large damage awards, while true acts of negligence go unpunished."8 According to some studies, close to 70% of claims result in no payment, while a small amount of claims result in huge payments.9 Because of frustration with the system, only about 1.5 percent of patients actually injured by medical malpractice even file a claim.10
¶ 244. The Wisconsin Commissioner of Insurance recently extolled the predictability and stability the statutory cap brings to the medical malpractice legal *695arena.11 Caps may contribute to an increased percentage of settlements, because plaintiffs are aware that unlimited noneconomic damages are not available.
¶ 245. The majority focuses all its attention on the few medical malpractice patients who do not benefit from the statutory scheme. This small minority of cases does not make the statutory scheme irrational.
B. The Damage Cap Reduces the Size of Malpractice Awards, Thereby Reducing the Size of Malpractice Insurance Premiums
¶ 246. The majority's second "objective" can be broken down into two component objectives: reducing the size of malpractice awards and reducing the size of malpractice insurance premiums.
1. The Cap Reduces the Size of Malpractice Awards
¶ 247. It would seem to be a simple, mathematical certainty that the cap on noneconomic damages reduces the size of some malpractice claims. However, the majority finds a way to disagree even with this unremarkable proposition, relying on two principal sources: older studies quoted in Martin and reports by the Wisconsin Commissioner of Insurance. One of the amici supporting the plaintiff asked the court to consider other national data such as the Internet "Weiss Ratings." None of the three sources provides substantial support for the majority's position.
*696a. Martin v. Richards
¶ 248. In Martin, this court cited a 1986 study by the U.S. Department of Justice purporting to show that "few individuals receive noneconomic damages in excess of $1,000,000." Martin, 192 Wis. 2d at 203. The Martin court also considered other courts' statements of the average level of awards as of 1970, and as of 1980. Id. I do not dispute the accuracy of these 20 to 35-year old figures.
¶ 249. Nonetheless, the medicad malpractice climate has changed in recent decades.
¶ 250. In 2003, a federal agency reported that "[t]he number of payments of $1 million or more reported to the [National Practitioner Data Bank] exploded in the past 7 years, not only in AMA crisis states such as New Jersey, Pennsylvania, and Ohio, but nationwide."12 In more than five percent of all claims resulting in payment, the payout exceeds $1 million.13 The maximum reported payout was $20,700,000.14 Seven of the twenty highest verdicts in 2001 and 2002 were in medical malpractice cases.15 In a recent Wisconsin case, a jury awarded noneconomic damages of $17.4 million.16
*697¶ 251. A substantial part of the huge awards are comprised of non-economic damages. Recent studies have concluded that non-economic damages comprise 77 percent of awards.17 In Texas, the average judgment in medical malpractice cases is now $2.1 million; 70 percent of that figure, on the average, is noneconomic damages.18
¶ 252. Last term in the Maurin case, a jury-awarded the Estate of Shay Leigh Maurin $550,000 in noneconomic damages for her pain and suffering before her death. The doctor's negligence in diagnosis occurred on March 6,1996. Shay died on March 8,1996, less than 48 hours later. Maurin, 274 Wis. 2d 28, ¶¶ 9, 11. During a substantial part of this time she was unconscious. The facts of the case are tragic and heart-wrenching. But the fact that a jury awarded $275,000 in pain and suffering damages for each day she lived undermines many of the arguments made by the majority.
b. Report by Commissioner of Insurance
¶ 253. Second, the majority relies on reports by Wisconsin's Commissioner of Insurance. Specifically, the majority argues that the "bottom line conclusion" in the Commissioner's 2005 report is that "the only dis-cernable effect on these areas has been ... [a] reduction in the actuarially determined assessment levels .. . over the last seven years."19
¶ 254. In reality, the "bottom line" of the Commissioner's most recent report does not support *698the majority's position. Contrary to the majority's assertion, the Commissioner's 2005 report does not "draw similar conclusions to the Commissioner's reports issued" in prior years. In the 2005 report, Commissioner Jorge Gomez stated:
[I]t is important to note that any analysis of the effects of the enactment of Wisconsin act 10 is very difficult due to several factors including:
Many of the payments made on claims are a result of a settlement and not a jury trial. The settlement amount takes into consideration the caps that exist; therefore there is no discernable amount that can be attributed to a reduction due to the caps.
It is not possible to determine the number of the claims that were not filed due to a limited amount of economic damages in addition to the caps.
To conclude .. . Wisconsin's malpractice marketplace is stable. Insurance is available and affordable, and patients who are harmed by malpractice occurrences are fully compensated for unlimited economic losses. Tort reform of 1995, along with well regulated primary carriers and a well managed and fully funded Patients Compensation Fund has resulted in the stable medical malpractice environment, and the availability of health care in Wisconsin.20
¶ 255. The Commissioner's new report makes plain the impact of 1995 Act 10. The "bottom line conclusions" drawn by the Commissioner are as follows: 1995 Act 10 affects settlement amounts; it discourages some claims from being filed; and it has "resulted in [a] stable medical malpractice environment, and the avail*699ability of health care in Wisconsin."21 Accordingly, the Commissioner of Insurance, who is in an excellent position to evaluate the effect of 1995 Act 10, disagrees with the majority's conclusions.
c. National Data
¶ 256. Third, the majority cites a national study, the "Weiss Ratings," presented by the Wisconsin Academy of Trial Lawyers (WATL).22 This report, according to WATL, showed the lack of any connection between noneconomic damage caps, plaintiffs' awards, and malpractice premiums. However, "this case is not about whether all caps, or even all caps on noneconomic damages, are constitutionally permissible. The question ... is a narrow one: Is the $350,000 cap ... on noneconomic damages in medical malpractice cases set forth in Wis. Stat. §§ 655.017 and 893.55(4)(d) constitutional?" Majority op., ¶ 13.
¶ 257. The Weiss report draws two broad conclusions. The first conclusion is that noneconomic damage caps are not holding down damage awards; for example, the median award in Wisconsin increased over 180% between 1991 and 2002, from about $90,000 to about $256,000.23 However, it should be obvious that a cap will not effect a reduction in the median award until the median award becomes greater than the cap amount. As the cap amount, adjusted for inflation, is currently *700$445,755, it would be impossible for the cap to reduce the median award of about $256,000.24 A cap has the effect of reducing only the awards that are above the cap amount. Accordingly, the amount of the median payout is simply irrelevant.
¶ 258. Similarly, the majority cites a study from the General Accounting Office. As it did with the report by the Wisconsin Commissioner of Insurance, the majority is forced to twist the GAO's blunt conclusion that malpractice claims tended to be lower and grew less rapidly in states with noneconomic damage caps.25 The majority's wordplay again reveals its disregard for any *701evidence supporting the legislature's action, in direct contradiction to hortatory statements elsewhere in the opinion.
¶ 259. In summary, "[c]aps on awards. . . have had significant effects, in the direction and magnitude that is consistent with theory, prior evidence, and common sense." Patricia M. Danzón, The Effects of Tort Reforms on the Frequency and Severity of Medical Malpractice Claims, 48 Ohio St. L.J. 413, 417 (1987) (emphasis added). I agree with the Wisconsin Commissioner of Insurance and with the U.S. Department of Health and Human Services that the noneconomic damage cap helps control medical malpractice damage awards and creates a stable legal environment.26 Accordingly, I disagree with the majority that there is no rational connection between 1995 Act 10's enactment of a cap and the size of damage awards.
2. The Cap Helps Reduce the Size of Malpractice Insurance Premiums
¶ 260. The majority also questions whether the damage cap has actually reduced malpractice insurance premiums. Majority op., ¶¶ 121-29. It trumpets a report by the GAO that multiple factors have contributed to increased malpractice insurance premiums. But even the GAO report concluded that "losses on medical malpractice claims — which make up the largest part of *702insurers' costs — appear to be the primary driver of rate increases in the long run."27 The Congressional Budget Office concluded that federal caps on damage awards, in combination with other tort reforms, would reduce malpractice insurance premiums by 25 to 30 percent over the ten-year period between 2004 and 2013.28
¶ 261. The majority also attempts to disparage the Weiss report's conclusion that Wisconsin insurance premiums dropped by 5% during 1991-2002.29 In that same eleven-year period, the median malpractice premiums rose between 35 and 50 percent in other states.30
¶ 262. Undeniable statistical evidence reveals that increases in malpractice insurance premiums are far lower in Wisconsin than in states without caps. For example, during the two-year period between 2001 and 2003, federal studies showed that the average highest premium31 increased 5% in Wis*703consin.32 Over the same time period, the cost for the same type of insurance coverage increased 45% in states without caps.33 One study took care to note that this success in holding down premiums is "not accidental."34
¶ 263. As of 2004, in 28 states, medical malpractice insurers reported a loss ratio above 100 percent; that is, for each premium dollar received, more than one dollar is expected to be paid out.35 As of 2001, medical malpractice insurers nationally paid out $1.53 in claims and expenses for each $1 in premiums collected.36 On the other hand, Wisconsin reported the lowest ratio, 61.71 percent, of all reporting jurisdictions.37
¶ 264. Yet another recent empirical study showed that malpractice "[pjremiums in states with a cap on awards were 17.1 percent lower than in states without such caps."38
¶ 265. The majority simply chooses to disbelieve this evidence, claiming that "differences in both premiums and claims payments are affected by multiple factors in addition to damage caps, including state premium rate regulation, level of competition among *704insurers, and interest rates and income returns that affect insurers' investment returns." Majority op., ¶ 125.
¶ 266. The majority questions whether the crisis is real. See majority op., ¶ 160 n. 213. Consider this: St. Paul, for many years the number one medical malpractice insurer in the nation, announced in 2001 that it would completely abandon providing medical malpractice insurance because it was no longer profitable. In an unrelated section of the majority opinion, the majority notes that St. Paul provided only 3.3% of malpractice insurance in Pennsylvania. Majority op., ¶ 167 n. 222. Nationally, though, St. Paul "was the largest malpractice carrier in the United States, covering 9% of all doctors."39
¶ 267. However, even the studies the majority cites recognize that while there are several factors driving up the cost of insurance premiums, malpractice awards are one of those factors.40
¶ 268. For example, the GAO report conclusively showed that during 2001-02, states with caps experienced an average premium rate increase of 10%, as compared with a 29% increase for states without caps over the same period.41
¶ 269. As the majority admits, the Wisconsin Commissioner of Insurance is in accord: "rate stability *705could be dramatically impacted for both the Fund and primary carriers should the caps be removed and insurers face unlimited non-economic damages."42
¶ 270. The majority's rejection of such straightforward statements and evidence provides further proof of its complete abandonment of the standard of review. As in other parts of its opinion, instead of searching for or constructing a rationale to support the legislature's action, the majority takes it upon itself to weigh competing evidence and decides the matter as if it were deciding a case on de novo review.
¶ 271. This court used to summarize the appropriate standard of review as follows:" 'Judicial response to a challenged legislative classification requires only that the reviewing court locate some reasonable basis for the classification made.'" Sambs, 97 Wis. 2d at 371 (emphasis added) (citation omitted). Now, instead of attempting to locate a rationale to support the caps, the majority searches for studies to discredit them.
¶ 272. The legislature had a rational basis to find that the noneconomic damage cap assists in reducing medical malpractice insurance premiums.
C. The Cap Protects the Fund's Financial Status and Keeps the Annual Provider Assessments to a Reasonable Level
¶ 273. The majority's third legislative objective should also be separated into two component objectives: preserving the Fund's financial status and keeping annual provider assessments to a reasonable level. On *706both grounds, the legislature had a rational basis to conclude that the noneconomic damage cap serves the intended purposes.
1. The Cap Protects the Fund's Financial Status
¶ 274. In December 1994, the nonpartisan Wisconsin Legislative Audit Bureau compiled an accounting estimate revealing that the Fund was in dire economic straits.43 The Fund had an accounting deficit of $67.9 million.44 As the majority notes, this deficit dated from the Fund's "first 10 years of operation." Majority op., ¶ 150 n.195. "For a number of years, the Board ha[d] been studying ways to . . . retire its financial deficit."45
¶ 275. The Office of the Commissioner of Insurance prepared a fiscal estimate in connection with 1995 Assembly Bill 36, and concluded as follows:
In evaluating the fiscal impact of 1995 AB 35,46 OCI concentrated on its effect on the Fund. ...
... If a cap had been in place as of June 30, 1994, the break-even Fund levels could have been reduced by 19.0% or approximately $10.5 million. Over a five-year period the total cumulative savings resulting from a cap *707of $250,000 enacted June 30, 1994, is projected to be $67.8 million.47
¶ 276. Later, as the majority notes, the bill was revised to reflect an increased cap of $350,000. A revised fiscal estimate was never done. Cumulative savings may have been used simply to reduce provider assessments. In retrospect, though, is it merely a fascinating coincidence that the Fund had a deficit of $67.9 million, and the Commissioner of Insurance estimated the five-year savings to the Fund at $67.8 million?
¶ 277. It is interesting to examine the Fund's deficit through the past twenty years, keeping in mind that the effects of tort reform often take three to five years to become apparent,48 probably because of the lag time between enactment and the filing of claims based on events that occurred after enactment. With that in mind, consider the following data and commentary:
Year Surplus (Deficit)49
1980-1981 (8,000,000)*
*7081981-1982 (9,000,000)*
1982-1983 (20,000,000)*
1983-1984 (50,000,000)*
1984-1985 (80,000,000)*
Prior to 1985, no cap on noneconomic damages existed. 1985 Act 340 capped noneconomic damages at $1,000,000.
1985-86 (100,000,000)*
1986-87 (112,000,000)*
1987-88 (122,700,000)
Three years after 1985 Act 340 became law, the Fund's deficit began to decrease.
1988-89 (108,300,000)*
1989-90 (73,597,992)
1990-91 (71,679,588)
In 1991 the damage caps enacted in 1985 Act 340 were "sunset," meaning that no cap existed.
1991-92 (78,982,681)
1992-93 (71,613,641)
1993-94 (67,903,761)
1994-95 (57,722,800)
In 1994 the legislature studied whether to reenact caps. 1995 Act 10, reenacting caps, became law in May 1995.
*7091995-96 (41,795,500)
1996-97 (44,094,200)
1997-98 (22,166,700)
Three years after the passage of 1995 Act 10, the Fund's fortunes dramatically improved, and it began to show an accounting surplus for the first time.
1998-99 8,579,800
1999-00 27,229,700
2000-01 28,460,500
2001-02 6,604,100
2002-03 7,935,026
¶ 278. The majority relies on its expertise in accounting to conduct a detailed fiscal analysis50 and then declares
The Fund has flourished both with and without a cap. If the amount of the cap did not impact the Fund's fiscal stability and cash flow in any appreciable manner when no caps existed or when a $1,000,000 cap existed, then the rational basis standard requires more to justify the $350,000 cap as rationally related to the Fund's fiscal condition.
Majority op., ¶ 158.
¶ 279. This analysis, while admittedly an inexact science, shows that the caps do have an impact on the Fund's fiscal stability. Recent estimates confirm this analysis.
¶ 280. On May 17, 2005, the Legislative Fiscal Bureau released Paper #450, relating to the Patients *710Compensation Fund. The paper notes that this court upheld the cap on noneconomic damages in wrongful death cases, and had accepted review in the case at bar. The study notes that, according to actuarial estimates, "if Wisconsin's cap on noneconomic damages were to be declared unconstitutional, the potential fund liabilities may be increased by an estimated $150 million to $200 million."51
¶ 281. In 2001, the nonpartisan Legislative Audit Bureau reached the same findings: "Action by the Board of Governors and the Legislature . .. have contributed to a significant improvement in the Fund's financial position, which showed an accounting surplus of $27.2 million as of June 30, 2000."52 The 2001 study specifically cited the legislature's re-establishment of a limit on awards for non-economic damages in 1995 as one of the reasons behind the Fund's stabilization.53
¶ 282. The nonpartisan study provided concrete evidence for this finding: "the Fund's claim payments were below $20 million in each year from FY 1997-98 through FY 1999-2000. In contrast, a number of recent medical malpractice cases in other states have resulted in verdicts of more than $30 million, including a $79 million verdict in New York, a $55 million verdict in Illinois, and a $40 million verdict in Texas."54 In other words, thanks to the majority's action today, the Fund may be held liable for an award in a single case that *711dwarfs the Fund's current yearly expenditures. It is impossible to conceive that this would not have a deleterious effect on the Fund.
¶ 283. The majority ignores this evidence. The legislature had a rational basis to believe that the cap would increase the financial stability of the fund.
2. The Cap Allows the Fund to Keep Provider Assessments to a Reasonable Level
¶ 284. The damage cap has also allowed the Fund to keep provider assessments low. Between fiscal year 1995-96 and fiscal year 2001-02, the Fund increased assessments only once.55 In another year, there was no change in assessments. In the remaining five years, assessments decreased.56
¶ 285. The majority plainly states that one of the legislative objectives was to keep provider assessments to a minimum. After examining the data, despite its best efforts the majority is powerless to conclude that this objective has not been met. Accordingly, as the data do not support the answer the majority sought, the majority simply recasts the inquiry: "In any event, as we explain below, a reduction in the assessments is not necessarily germane to the legislative objectives . . . ." Majority op., ¶ 154. How can the majority make this claim after stating earlier in the opinion that keeping assessments low was itself one of the legislative objectives?
¶ 286. From an accounting perspective, it should be clear that the level of the assessments is tied in some way to the financial health of the Fund. As the Fund's *712stability and assets increase, the assessments will go down. As already noted, the majority's removal of the cap will decrease the economic health of the Fund, and likely increase the provider assessments.
D. The Cap Reduces the Overall Cost of Health Care
¶ 287. The majority opinion does not allege that noneconomic damage caps do not reduce the cost of health care. Rather, the majority concentrates on the fact that "medical malpractice insurance premiums are an exceedingly small portion of overall health care costs." Majority op., ¶ 162. The majority equates small percentages with small costs.
¶ 288. A multitude of studies and statistics belie the majority's conclusion. First, a May 2003 study by the Joint Economic Committee of the United States Congress concluded that medical malpractice reform could produce $12.1 billion to $19.5 billion in annual savings for the federal government, and, by decreasing costs, increase the number of Americans with health insurance coverage by as many as 3.9 million people.57 Another study estimated that the savings from national reform would be $70 to $126 billion dollars per year.58
¶ 289. The Congressional Budget Office has estimated that malpractice reforms, including the imposition of caps on noneconomic damages, would result in a 0.4 percent decrease in the price of health insurance.59 *713Nationwide, this would mean that an additional 385,000 Americans could obtain health insurance.60
¶ 290. While these figures may represent a small percentage of total health care costs or the total number of Americans, they are not inconsequential. There is no reason to believe that these findings are not also applicable, on a smaller scale, in Wisconsin. The legislature had a rational basis to believe that the imposition of damage caps would reduce overall health care costs and increase the availability of health insurance.
E. The Cap Encourages Providers to Stay in Wisconsin and Reduces the Practice of Defensive Medicine
¶ 291. The majority concludes that the existence of the cap does not encourage providers to stay in Wisconsin, nor does it reduce the practice of defensive medicine. I disagree on both counts.
1. The Cap Encourages Health Care Providers to Remain in Wisconsin
¶ 292. In one term, this court has transformed the medical malpractice climate in this state. In Lagerstrom v. Myrtle Werth Hospital, 2005 WI 124, _ Wis. 2d _, 700 N.W.2d 201, the court eviscerated the statute modifying the collateral source rule in medical malpractice actions. In Phelps, the court held that medical residents are not health care providers covered by Chapter 655. And today, the majority delivers its masterstroke — the abolition of the statutory cap on noneconomic damages.
¶ 293. The majority dismisses any potential consequences, citing a GAO study's tentative conclusion that, "doctors do not appear to leave or enter states to *714practice based on caps on noneconomic damages ... Majority op., ¶ 168. However, the GAO study included limited data from only five states.61 The majority claims that these conclusions "are supported by other reports and studies." Majority op., ¶ 169. This is simply incorrect.
¶ 294. The majority cites three other "studies." The first is a student-written comment.62 Far from supporting the majority's mistaken premise, this article relates anecdotal evidence of physician migration from states without a noneconomic damage cap.63 The majority latches on to the article's recognition that the AMA has not declared Wisconsin a "problem" state, majority op., ¶ 169 n.227, but the majority misses the point. Wisconsin is not in a medical malpractice crisis because the legislature has addressed it through tort reform. By undoing the work of the legislature, the majority will drag Wisconsin back into the crisis. It is disingenuous to claim that Wisconsin is not experiencing a physician migration problem and use that as a reason to get rid of the cap, when the cap is one reason that Wisconsin has no migration problem at this time.
¶ 295. Another article cited by the majority cites the GAO study already discussed, as well as several newspaper articles, but adds no independent research to the question.64
*715¶ 296. The third article the majority cites is a policy paper presented to the Illinois State Bar Association and later the Illinois General Assembly.65 The Illinois legislators obviously were not convinced by the assertions in the study — they enacted a $500,000 cap on noneconomic damages in medical malpractice actions shortly thereafter.66
¶ 297. Only one study has comprehensively surveyed this question. In 2003, the U.S. Department of Health & Human Services commissioned a study that evaluated data from 49 states over an extended time period.67 This study concluded that "States with a cap average 24 more physicians per 100,000 residents than States without a cap. Thus, States with caps have about 12 percent more physicians per capita than States without a cap."68
¶ 298. This effect is even more pronounced in Wisconsin. The same study evaluated the supply of physicians in Wisconsin over the years 1970-2000, and found that the physician population increased by 104.5% over that time span.69 Meanwhile, the average supply in states without caps increased by only 79.1% — a difference of over 25%.70
*716¶ 299. Similarly, in Wisconsin, the Commissioner of Insurance reported increases in the number of physicians in Wisconsin in 2005. This conclusion forces the majority to explain away yet more evidence of the positive effects of the cap; according to the majority, the report is unreliable because the Commissioner did not expressly conclude that the positive effect was the result of the noneconomic damage cap. Once again, the majority doesn't let hard evidence get in the way of its preordained conclusion.
¶ 300. Yet another study, after evaluating substantial statistical data spanning 1980-1998, confirmed that "enacting caps on non-economic damages is an effective way to attract and retain physicians."71 The study went one step further, establishing that- the increased number of physicians translated to increased availability of health care in some regions, statistically reducing infant mortality rates among African-American babies by 67 deaths per 100,000 births.72
¶ 301. A small dose of common sense compels the conclusion that doctors would prefer to practice medicine in a favorable legal environment. The quoted surveys confirm this notion. Accordingly, the legislature *717had a rational basis to conclude that the cap on non-economic damages would encourage physicians to remain in — or move into — Wisconsin.
2. The Cap Reduces the Practice of Defensive Medicine
¶ 302. The issue of whether doctors are less likely to practice defensive medicine is related to medical migration. Majority op., ¶ 172. The majority admits that "an 'accurate measurement of the extent of this phenomenon is virtually impossible,'" then holds this difficulty against the legislature. Id., ¶ 173.
¶ 303. The majority cites three studies, all concluding that defensive medicine is difficult to measure because "[flindings about defensive medicine must be based on surveys of health care providers . ..." Majority op., ¶ 174.
¶ 304. It is true that physician surveys provide ample evidence of the existence of the practice of defensive medicine. However, the majority's assertion that such surveys are the only evidence of the practice is simply not correct. On the contrary, "[a] large body of research has accumulated showing that medical malpractice liability causes doctors to practice defensive medicine."73 Of course, the majority repudiates or ignores physician surveys attesting to the fact that "more than three out of four (76 percent) doctors report that they practice defensive medicine."74 However, scientific studies arrive at the same conclusion.
¶ 305. In 1996, a study jointly undertaken by Stanford University and the National Bureau on Eco*718nomic Research employed mathematical models and statistical research over the years 1984-1990 to study the effect of medical malpractice reform — particularly noneconomic damage caps — on the practice of defensive medicine. Daniel Kessler and Mark McClellan, Do Doctors Practice Defensive Medicine?, Ill Quarterly J. of Econ. 353 (1996). The conclusion: "Our analysis indicates that reforms that directly limit liability — caps on damage awards, [75] abolition of punitive damages, [76] abolition of mandatory prejudgment interest, and collateral-source-rule reforms [77] — reduce hospital expenditures by 5 to 9 percent within three to five years of adoption, with the full effects of reforms requiring several years to appear." Id. at 386.78 The study further found that
if reforms directly limiting malpractice liability had been applied throughout the United States [between 1984 and 1990] expenditures on cardiac disease would have been around $450 million per year lower for each of the first two years after adoption and close to $600 *719million per year lower for each of years three through five after adoption, compared with nonadoption of direct reforms.
Id. at 387.
¶ 306. Another recent study concluded that tort reform, including the imposition of damage caps, would result in "between $9.3 billion and $16.7 billion in additional budgetary savings in 2013 from reduced defensive medicine."79 The Joint Economic Committee estimates that the reduced cost of health insurance resulting from the reduction in defensive medicine practices would contribute to allowing an additional 1.6 million to 2.6 million Americans to afford health insurance.80
¶ 307. Similar studies are in accord.81
¶ 308. These conclusions, based on statistical analysis, obliterate the majority's vague assertions that the effects of defensive medicine either cannot be measured or do not affect health care costs. Majority op., ¶ 174. The legislature unquestionably had a rational basis to conclude that its enactment of the noneconomic damage cap would both keep physicians in Wisconsin and reduce the practice of defensive medicine.
*720DECISIONS BY OTHER COURTS
¶ 309. No other court evaluating a cap on noneco-nomic damages in medical malpractice cases has considered (or at least has not cited) the amount of statistical data and evidence this court has cited in this case. On more limited data, some courts have struck down caps on noneconomic damages in medical malpractice cases. Others have upheld them. In my view, the better reasoning has been put forth in the cases upholding caps.
¶ 310. Given the standard of review, which it faithfully claims is the "rational basis" test, the majority should not be able to ignore the mountain of evidence supporting the effectiveness of caps. The length of the majority opinion illustrates just how hard the majority has to work to discredit study after study, fact after fact, fighting its way to the desired result. Other courts' decisions show the error in the majority's ways.
¶ 311. California was one of the first states to enact medical malpractice tort reform. In 1975 its legislature enacted the Medical Injury Compensation Reform Act (MICRA) which, among other reforms, limited noneconomic damages in medical malpractice cases to $250,000. See Fein v. Permanente Med. Group, 695 E2d 665 (Cal. 1985). The constitutionality of various aspects of MICRA has been challenged. In Fein, the plaintiff challenged the noneconomic damage cap on an equal protection theory, placing that case on equal footing with this one. Faced with the identical issue we face, the California court responded:
We have . .. found that the statutory classifications are rationally related to the "realistically conceivable legislative purpose[s]" of MICRA. We have not invented fictitious purposes that could not have been within the contemplation of the Legislature nor ignored the dispar*721ity in treatment which the statute in realistic terms imposes. But [prior cases] have never been interpreted to mean that we may properly strike down a statute simply because we disagree with the wisdom of the law or because we believe that there is a fairer method for dealing with the problem. Our recent decisions do not reflect our support for the challenged provisions of MICRA as a matter of policy, but simply our conclusion that under established constitutional principles the Legislature had the authority to adopt such measures. ... "[A] court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction of ill-considered legislation is a responsive legislature."
Fein, 695 E2d at 684 (emphasis added) (internal citations omitted).82
¶ 312. Many other courts have reached the same conclusion.83 In 2003 the Nebraska Supreme Court, faced with a cap on total damages, summarized the current state of the law:
*722A majority of jurisdictions apply a rational basis or other similar test and determine that a statutory cap on damages does not violate equal protection. See, e.g., Phillips v. Mirac, Inc., 251 Mich. App. 586, 651 N.W.2d 437 (2002); Guzman v. St. Francis Hospital, Inc., 240 Wis.2d 559, 623 N.W.2d 776 (Wis. App. 2000); Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo. 1993) (en banc); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992); Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. 1992) (en banc); Butler v. Flint Goodrich Hosp., 607 So.2d 517 (La. 1992); Peters v. Saft, 597 A.2d 50 (Me. 1991); Robinson v. Charleston Area Med. Center, 186 W.Va. 720, 414 S.E.2d 877 (1991); Fein v. Permanente Medical Group, 38 Cal.3d 137, 695 P.2d 665, 211 Cal. Rptr. 368 (1985); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989); Johnson v. St. Vincent's Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980), abrogated on other grounds, Collins v. Day, 644 N.E.2d 72 (Ind. 1994). See, also, Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002) (reaching this conclusion but stating that it was not binding precedent); Trujillo v. City of Albuquerque, 125 N.M. 721, 965 P.2d 305 (1998) (overruling use of heightened standard, but remanding for determination of constitutionality under rational basis standard); Morris v. Savoy, 61 Ohio St.3d 684, 576 N.E.2d 765 (1991) (finding
*723no violation of equal protection, but finding damages cap unconstitutional on other grounds).
Gourley ex rel. Gourley v. Nebraska Methodist Health Sys., Inc., 663 N.W.2d 43, 70-71 (Neb. 2003) (emphasis added).
¶ 313. After consulting legislative findings similar to those discussed in the majority opinion, the Gourley court resisted the plaintiffs invitation to "second guess the conclusions of the Legislature" by deciding that the Nebraska damage cap was "unwise or unnecessary." Id. at 72. Instead, it concluded that "[Reducing health care costs and encouraging the provision of medical services are legitimate goals which can reasonably be thought to be furthered by lowering the amount of medical malpractice judgments." Id.
SUMMATION
¶ 314. In 1995 the legislature approved comprehensive medical malpractice reform. Over the past decade it has been very successful. Upon reviewing validly enacted legislative acts, the court is supposed to recognize that it is the legislature's function, not the court's, to evaluate studies and reports. The court should not second guess the legislature.
¶ 315. The majority obviously disagrees.
¶ 316. Nevertheless, in its closing paragraphs the majority states, "The court must presume that the legislature's judgment was sound and look for support for the legislative act."84
*724¶ 317. The majority also pledges its adherence "to the concept of judicial restraint that cautions against substituting judicial opinions for the will of the legislature . . . ."85
¶ 318. The changes wrought by the majority opinion will be profound, but it is these concluding passages that hurt the most.
¶ 319. I am authorized to state that Justices JON E WILCOX and PATIENCE DRAKE ROGGENSACK join this dissent.
Gayle Lynn Pettinga, Note, Rational Basis With Bite: Intermediate Scrutiny By Any Other Name, 62 Ind. L.J. 779, 780 (1987).
In a few cases decided in the 1980s, the United States Supreme Court appeared to use a higher order of rational basis review in a handful of cases without ever using the phrase "rational basis with bite." See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985); Williams v. Vermont, 472 U.S. 14, 22-23 (1985); Zobel v. Williams, 457 U.S. 55 (1982).
In City of Cleburne, Justice Thurgood Marshall blasted the majority for its deception:
To be sure, the Court does not label its handiwork heightened scrutiny, and perhaps the method employed must hereafter be called "second order" rational-basis review rather than "heightened scrutiny." But however labeled, the rational basis test invoked today is most assuredly not the rational-basis test of Williamson v. Lee Optical of Oklahoma, Inc.; 348 U.S. 483, (1955), Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959), and their progeny.
City of Cleburne, 473 U.S. at 458 (Marshall, J., concurring in part and dissenting in part).
Justice Marshall forecast that "[t]he suggestion that the traditional rational-basis test allows this sort of searching inquiry *685creates precedent for this Court and lower courts to subject economic and commercial classifications to similar and searching 'ordinary' rational-basis review — a small and regrettable step back toward the days of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905)." Id. at 459-60.
The Lochner Court's infamous usurpation of legislative power has been relegated to the ash heap of history. Writing for the majority in Ferguson v. Skrupa, 372 U.S. 726 (1963), Justice Black summed up the Court's repudiation of Lochner:
[Lochner] has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. As this Court stated in a unanimous opinion in 1941, "We are not concerned . . . with the wisdom, need, or appropriateness of the legislation." Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to "subject the State to an intolerable supervision hostile to the basic principles of our Government . .. ."
Ferguson, 372 U.S. at 730.
This court has also recognized that rational basis with "bite" is equivalent to "a middle level tier of judicial scrutiny." State ex r.el. Watts v. Combined Community Servs., 122 Wis. 2d 65, 81 n.8, 362 N.W.2d 104 (1984). See also S. Dakota Farm Bureau, Inc. v. Hazeltine, 202 F. Supp. 2d 1020, 1048 n.3 (D.S.D. 2002) ("rational basis with bite" is "heightened scrutiny"); Am. Fed'n of Gov't Employees (AFL-CIO) v. United States, 195 F. Supp. 2d 4, 12 n.12 (D.D.C. 2002).
Pettinga, supra n.1, at 802.
See also Mitchell S. Berger, Following the Doctor's Orders — Caps on Noneconomic Damages in Medical Malpractice Cases, 22 Rutgers L.J. 173, 195-96 (1990) ("Those courts which have invalidated caps invariably apply a higher degree of scrutiny than the rational relationship test.").
See, e.g., Wis. Stat. § 893.82(6) (caps damages for plaintiffs suing state employees at $250,000). See also Wis. Stat. § 893.80(3) (caps damages for certain offenses committed by government officials in their official capacity at $50,000; when offense is by a volunteer fire company, damages cannot exceed $25,000); Wis. Stat. § 895.04(4) (caps damages for wrongful death of a minor at $500,000 and wrongful death of an adult at $350,000); Wis. Stat. § 973.20(4m) (limits, in some circumstances, the amount of restitution to be paid by a defendant convicted of certain sexual crimes to $10,000).
Wis. Stat. § 893.82(6).
Maurin v. Hall, 2004 WI 100, ¶ 197, 274 Wis. 2d 28, 682 N.W.2d 866 (Abrahamson, C.J., and Crooks, J., concurring).
U.S. Congress, Joint Economic Committee, Liability for Medical Malpractice: Issues and Evidence at 11 (May 2003) (hereinafter U.S. Congress, Joint Economic Committee, Liability for Medical Malpractice). The majority disparages the Joint Economic Committee report as a "policy paper," despite the fact that the report cites abundant independent statistical evidence in support of its bottom line conclusion: caps work.
According to one recent study, in a sample of 5524 malpractice cases, "0.9% resulted in jury verdicts for the plaintiff, 27.4% were settled before trial, 67.7% were dropped or dismissed, and 4% ended in a verdict for the defendant." William E Gunnar, Is There An Acceptable Answer To Rising Medical Malpractice Premiums?, 13 Annals Health L. 465, 477 (2004).
United States Department of Health & Human Services, Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care 15 (Mar. 3, 2003) (citing A.R. Localio, A.G. Lawthers, et al., Relation between malpractice claims and adverse events due to negligence: Results of the Harvard Medical Practice Study III, 325 New Eng. J. Med. 245 (July 25, 1991)) (hereinafter United States Department of Health & Human Services, Addressing the New Health Care Crisis). The majority disparages the DHHS report as a "policy paper," despite the fact that the report cites abundant independent statistical evidence in support of its bottom line conclusion: caps work.
Wisconsin Office of the Commissioner of Insurance, Report on the Impact of 1995 Wisconsin Act 10 3-4 (May 12, 2005) (emphasis added) (hereinafter Report on the Impact of 1995 Wisconsin Act 10).
United States Department of Health & Human Services, Addressing the New Health Care Crisis at 12.
Id.
Id.
Gunnar, supra n.9, at 477.
Derrick Nunnally, Judge Reduces Malpractice Award, Milwaukee Journal Sentinel (Dec. 9, 2004). The trial judge reduced these noneconomic "pain and suffering" damages to about $12 million dollars plus interest, an amount roughly twenty-five times the current cap.
United States Department of Health & Human Services, Addressing the New Health Care Crisis at 13.
Id.
Majority op., ¶ 120.
Report on the Impact of 1995 Wisconsin Act 10 at 3-4 (emphasis added).
Id.; contra majority op., ¶ 120.
Majority op., ¶ 123 n.141.
Martin D. Weiss et al., Medical Malpractice Caps: The Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage 3 (Weiss Ratings, Inc. June 2, 2003) (available online at http ://www. weissratings .com).
The median award is very different from the mean award. In statistical parlance, the median refers to "the middle value in a distribution, above and below which lie an equal number of values." Heritage Dictionary of the English Language 1120 (3d ed. 1992). By contrast, the mean is what, in everyday language, one would call the "average value of a set of numbers." Id. at 1116.
A simple example illustrates the point. Consider five non-economic damage awards, in the following amounts: $50,000, $100,000, $200,000, $350,000, and $20 million. Consider further two states, one in which damages are uncapped and another in which noneconomic damages are capped at $350,000.
In both states, the median of this set of data is the middle number, $200,000. However, the mean of the data would be very different in the two states. In the uncapped state, the mean of the data is $4.14 million. In the capped state, the mean of the data is $210,000. The majority notes that "a very small number of claims are... for an amount above the cap." Majority op., ¶ 126. Thus, it is unremarkable that the cap has little if any effect on the median award. The Weiss Report's conclusion that the median award value is unrelated to the caps is similarly unsurprising. The Weiss Report apparently did not investigate the mean value of awards in capped versus uncapped states.
Majority op., ¶ 124.
See also Patricia M. Danzón, The Frequency and Severity of Medical Malpractice Claims: New Evidence, 49 Law & Contemp. Probs. 57, 76 (1986) (concluding that "[t]he average impact of the various statutes to cap all or part of the plaintiffs recovery has been to reduce average severity by twenty-three percent.").
United States General Accounting Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates (GAO-03-702) at "Highlights" (June 2003); see also id. at 43.
U.S. Congress, Congressional Budget Office, Cost Estimate: H.R. 5 - Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2003 at 4 (Mar. 10, 2003).
Martin D. Weiss et al., Medical Malpractice Caps: The Impact ofNon-Economic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage 16 (Weiss Ratings, Inc. June 2, 2003) (available at http://www.weiss ratings.com).
Id. at 16-17.
Typically, the "average highest premium" refers to the highest premium increase among internal medicine, general surgery or obstetrics/gynecology specialists. United States Department of Health & Human Services, Addressing the New Health Care Crisis at 23.
Id.
Id.
Id. at 24.
Joint Committee on Finance, Injured Patients and Families Compensation Fund, Paper #450, at 7 (May 17, 2005).
Gunnar, supra n.9, at 482.
Joint Committee on Finance, Injured Patients and Families Compensation Fund, Paper #450, at 7 (May 17, 2005).
Kenneth E. Thorpe, The Medical Malpractice 'Crisis': Recent Trends and the Impact of State Tort Reforms, Health Affairs at W4-26 (Jan. 21, 2004) (at http://content. healthaffairs.org/cgi/reprint/hlthaff.w4.20vl).
U.S. Department of Health & Human Services, Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs By Fixing Our Medical Liability System at 14 (Jul. 24, 2002).
See Health Insurance Association of America, Issue Brief: Why Do Health Insurance Premiums Rise at 13 (Sept. 2002).
United States General Accounting Office, Pub. No. GAO-03-836, Medical Malpractice: Implications of Rising Premiums on Access to Health Care 31-32 (Aug. 2003) (available at www.gao.gov/new.items/d03836.pdf).
Majority op., ¶ 122 (citing Report on the Impact of 1995 Wisconsin Act 10).
Wisconsin Legislative Audit Bureau, Audit Summary: Patients Compensation Fund, Document 94-29, at 1 (Dec. 1994).
Id.; see also majority op., ¶ 150 n.195.
Testimony of Peter Farrow, Executive Assistant to the Commissioner of Insurance, before the Assembly Committee on Insurance, Securities, and Corporate Policy, at 1 (Jan. 19,1995).
The reference to "1995 A.B. 35" is an obvious typographical error logically intended to reference 1995 A.B. 36. 1995 A.B. 35 concerned substitution of judges in criminal cases, and was never passed.
Fiscal estimate for 1995 A.B. 36.
Daniel Kessler and Mark McClellan, Do Doctors Practice Defensive Medicine?, 111 Quarterly J. of Econ. 353, 386 (1996).
Figures marked with * are estimated from graphical data. See Wisconsin Legislative Audit Bureau, An Audit of Patients Compensation Fund, Document 94-29 7-8 (Dec. 1994) (Figure 1). Deficits between FY 1989-90 and 1991-92 are taken from Wisconsin Legislative Audit Bureau, An Audit of Patients Compensation Fund, Document 93-18 10 (July 1993). Deficits between FY 1992-93 and 1993-94 are taken from Wisconsin Legislative Audit Bureau, An Audit of Patients Compensation Fund, Document 94-29 18 (Dec. 1994). Deficit and surplus amounts between 1994-95 and 2001-02 are taken from Legislative Fiscal Bureau, Paper #458: Patients Compen*708sation Fund 7 (Apr. 23, 2003). The 2003-04 value is drawn from Wisconsin Legislative Audit Bureau, An Audit: Injured Patients and Families Compensation Fund 37 (Oct. 2004).
Majority op., ¶¶ 130-58.
Legislative Fiscal Bureau, Paper #450: Injured Patients and Families Compensation Fund 8 (May 17, 2005).
Letter from Janice Mueller, State Auditor, to Senator Gary George and Representative Joseph Leibham, Co-chairpersons, Legislative Audit Committee (June 5, 2001).
Legislative Audit Bureau, An Audit: Patients Compensation Fund 11 (June 2001).
Id. at 12.
Id. at 15.
Id.
United States Congress Joint Economic Committee, Liability for Medical Malpractice at 1.
United States Department of Health & Human Services, Addressing the New Health Care Crisis at 11.
U.S. Congress, Joint Economic Committee, Liability for Medical Malpractice at 22.
Id.
U.S. General Accounting Office, Medical Malpractice: Implications of Rising Premiums on Access to Health Care, GAO03-83617 (August 2003) (available at http://www.gao.gov).
Lauren Elizabeth Rallo, Comment, The Medical Malpractice Crisis — Who Will Deliver the Babies of Today, the Leaders of Tomorrow?, 20 J. Contemp. Heath L. & Pol'y 509 (2004).
Id. at 510-11.
Geoff Boehm, Debunking Medical Malpractice Myths: Unraveling the False Premises Behind "Tort Reform", 5 Yale J. Health Pol'y, L. & Ethics 357, 360-61 & n.17.
Majority op., ¶ 170 n.229 (citing Neil Vidmar, Medical Malpractice and the Tort System in Illinois: A Report to the Illinois State Bar Association, 73-82 (May 2005).
Dave McKinney, Chris Fusco, et al., Medical Malpractice Caps Cleared, Chicago Sun-Times (May 26, 2005).
United States Dep't of Health & Human Servs., The Impact of State Laws Limiting Malpractice Awards on the Geographic Distribution of Physicians (Jul. 3, 2003).
Id.
Id.
Id.
Jonathan Klick & Thomas Stratmann, Does Medical Malpractice Reform Help States Retain Physicians and Does It Matter? 12-13 (Oct. 2, 2003) (unpublished manuscript, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=453481). The study concluded "The effect of caps on non-economic damages in general and those set at $500,000 is positive on the number of doctors per capita, and the result is statistically significant." Id. at 9 (emphasis added). The noneconomic damage cap in Wis. Stat. § 893.55(4)(d), adjusted for inflation, is currently $445,755.
Id. at 13-14.
U.S. Congress, Joint Economic Committee, Liability for Medical Malpractice at 13 (collecting studies).
Id. See also Gunnar, supra n.9, at 495.
See Wis. Stat. § 893.55(4)(d) (today declared unconstitutional by the majority).
See Wis. Stat. § 893.55(5); Lund v. Kokemoor, 195 Wis. 2d 727, 734, 537 N.W.2d 21 (Ct. App. 1995).
See Wis. Stat. § 893.55(7) (eviscerated by the majority in Lagerstrom v. Myrtle Werth Hospital, 2005 WI 124, _ Wis. 2d _, 700 N.W.2d 201).
The GAO study cited by the majority did not dispute these conclusions, but commented that "the savings cannot he generalized across all services, populations, and health conditions." United States General Accounting Office, Pub. No. GAO-03-836, Medical Malpractice: Implications of Rising Premiums on Access to Health Care, GAO-03-836, at 30 (2003). Aside from that conclusory comment, the GAO did not give any statistical reason that the study's findings would not be more widely applicable.
U.S. Congress, Joint Economic Committee, Liability for Medical Malpractice: Issues and Evidence at 21.
Id. at 23.
U.S. Department of Health & Human Services, Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs By Fixing Our Medical Liability System 7 (Jul. 24, 2002) ("If reasonable limits were placed on non-economic damages to reduce defensive medicine, it would reduce the amount of taxpayers' money the Federal Government spends by $25.3-44.3 billion per year.").
The United States Supreme Court dismissed an appeal for want of a federal question. Fein v. Permanente Med. Group, 474 U.S. 892 (1985) (mem.).
See, e.g., Davis v. Omitowoju, 883 F.2d 1155, 1158-59 (3d Cir. 1989); Boyd v. Bulala, 877 F.2d 1191, 1196-97 (4th Cir. 1989) ("the cap on liability bears a reasonable relation to a valid legislative purpose — the maintenance of adequate health care services in the Commonwealth of Virginia"); Evans ex rel. Kutch v. State, 56 P.3d 1046, 1054 (Alaska 2002) ("the nexus between the legislative objectives and the damage caps is adequate"); Garhard v. Columbia/Healthtone, L.L.C., 95 P.3d 571, 575 (Colo. 2004); Univ. of Miami v. Echarte, 618 So. 2d 189, 191 (Fla. 1993) (extensively discussing Florida's medical malpractice crisis); Murphy v. Edmonds, 601 A.2d 102, 115-16 (Md. 1992); Zdrojewski v. Murphy, 657 N.W.2d 721, 737-39 (Mich. Ct. App. 2003); Adams v. Childrens Mercy Hosp., 832 S.W.2d 898, 904-05 (Mo. 1992); Gourley ex rel. Gourley v. Neb. Methodist Health *722Sys., Inc., 663 N.W.2d 43 (Neb. 1998); Rose v. Doctors Hosp. Facilities, 735 S.W.2d 244, 253-54 (Tex. App. 1987); Etheridge v. Med. Ctr. Hosps., 376 S.E.2d 525, 534 (Va. 1989) (noneconomic damage cap passes "rational basis" test, and therefore does not violate equal protection); Judd v. Drezga, 103 E3d 135, 141-43 (Utah 2004); Robinson v. Charleston Area Med. Ctr., 414 S.E.2d 877, 886-87 (W. Va. 1991).
Still other courts have concluded that noneconomic damage caps in other, non-medical malpractice settings, do not violate constitutional guarantees including equal protection. See, e.g., Phillips v. Mirac, Inc., 685 N.W.2d 174, 186 (Mich. 2004); Meech v. Hillhaven West, Inc., 776 P.2d 488, 504 (Mont. 1989).
Majority op., ¶ 184.
Majority op., ¶ 185.