Audrеy GUZMAN, Nicanor Guzman, Jessica Guzman, a minor, and Steven Guzman, a minor, by their Guardian ad Litem, Plaintiffs-Respondents,† v. ST. FRANCIS HOSPITAL, INC., American Continental Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Appellants, ST. FRANCIS HOSPITAL, INC., Defendant-Third-Party Plaintiff, James SULLIVAN, M.D., Physicians Insurance Company of Wisconsin, Richard Fitzpatrick, M.D., and Southeastern Emergency Medical Services, S.C., Third-Party Defendants-Appellants, XY & Z INSURANCE COMPANY, Third-Party Defendant.
No. 98-2710
Court of Appeals
Oral argument September 5, 2000.—Decided December 19, 2000.
2001 WI App 21 | 623 N.W.2d 776 | 240 Wis. 2d 559
†Petition to review denied.
On behalf of the third-party defendant-appellant, Richard Fitzpatrick, M.D., the cause was submitted on the briefs of Lori Gendelman and Jeffrey J.P. Conta of Otjen, Van Ert, Lieb & Weir, S.C., Milwaukee.
On behalf of the third-party defendant-appellant, James Sullivan, M.D., the cause was submitted on the briefs of Paul J. Kelly and Amy J. Doyle of Schellinger & Doyle, S.C., Waukesha.
On behalf of the third-party defendant-appellant, Southeastern Emergency Medical Services, S.C., the cause was submitted on the briefs of Mary Lee Ratzel, Peter F. Mullaney and Sherry A. Knutson of Peterson, Johnson & Murray, S.C., Milwaukee. There was oral argument by John S. Skilton of Foley & Lardner, Madison.
On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Ted M. Warshafsky of Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee and Edward E. Robinson of Cannon & Dunphy, Brookfield. There was oral argument by Ted M. Warshafsky.
Before Fine, Schudson and Curley, JJ.
¶ 1. FINE, J. Audrey Guzman was seriously injured by what she claims was the negligence of the health-care providers named in the caption. The trial court held in a non-final order that a cap imposed by the legislature on the recovery of noneconomic damagеs in medical malpractice actions within the scope of
¶ 2. The cap on the recovery of noneconomic damages in health-care-provider malpractice cases involves the application of several statutes.
The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider if the act or omission occurs on or after May 25, 1995, and for acts or omissions of an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits under s. 893.55(4)(d) and (f).
The limitations referred to in
The limit on total noneconomic damages for each occurrence under par. (b) on or after May 25, 1995, shall be $350,000 and shall be adjusted by the director of state courts to reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments.
Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04(4). If damages in excess of the limit
under s. 895.04(4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04(4).2
(1) COMPARATIVE NEGLIGENCE. Contributory negligence does not bar recovery in an action by any person or the person‘s legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percеntage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.
A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.
¶ 3. The trial court held that the legislature could not constitutionally limit the amount of noneconomic damages that a person injured by a health-care provider covered by
II.
¶ 4. Whether a statute is constitutional is decided by an appellate court de novo. See Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 110, 613 N.W.2d 849, 857. Statutes are assumed to be constitutional unless shown not to be. We do not write on a clear slate:
Statutes are presumptively constitutional. The court indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statute‘s constitutionality, we must resolve that doubt in favor of constitutionality.
To overcome this strong presumption, the party challenging a statute‘s constitutionality must demonstrate that the statute is unconstitutional beyond a reasonable doubt. It is not sufficient for the challenging party merely to establish doubt about a statute‘s constitutionality, and it is not enough to establish that a statute probably is unconstitutional.
The presumption of statutory constitutionality is the product of our recognition that the judiciary is not positioned to make the economic, social, and political decisions that fall within the province of the legislature. The duty of the court is only to determine if the legislation clearly and beyond doubt offends a provision of the state constitution that specifically circumscribes legislative action.
Aicher, 2000 WI 98 at ¶¶ 18-20 (internal citations omitted).3
¶ 5. The legislature has made a policy determination that the efficient and effective provision of
A. Jury trial right.
¶ 7. The Guzmans argue that the legislature may not, in their words, “substitute its judgment for that of the jury as to the proper amount of damages owing to a victim of medical malpractice.” (Capitalization omitted.) They contend that because medical-malpractice actions were part of the common law when the Wisconsin constitution was adopted in 1848, and that those actions encompassed the recovery of noneconomic damages, the legislature is powerless to trench a jury‘s right to award as much noneconomic damages as the jury might see fit. Although neither the Guzmans nor the defendants have directed us to any authority one way or the other concerning the recovery of noneconomic damages in Wisconsin before 1848, the issue is not material because the constitution specifically empowers the legislature to modify the common law, and indeed, to discontinue common-law cаuses of action or remedies: “Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.”
¶ 8. Article XIV, § 13 is a powerful delegation of authority to the legislature by the constitution, and recognizes, as does Aicher, that it is the legislature‘s function to establish the parameters of policy for Wis-
¶ 9. The Guzmans point to the “right to jury” clause,
¶ 10. Wisconsin has long recognized that “[i]t is the duty of the jury to find the facts and the duty and domain of the court to determine the legal rights of the parties after the return of the verdict.” Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 482, 387 N.W.2d 751, 759, (1986). Moreover,
The right to a jury trial in civil cases that is guaranteed by Article I, § 5 of the Wisconsin Constitution is substantially similar to that right guaranteed by the Seventh Amendment to the United States Constitution (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right оf trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.“). The Seventh Amendment jury-trial right does not apply to the states. Nevertheless, we may be guided by the federal cases interpreting that provision.
Markweise v. Peck Foods Corp., 205 Wis. 2d 208, 225-226, 556 N.W.2d 326, 333 (Ct. App. 1996) (internal citations omitted). Contrary to the assumption of the trial court, the Guzmans, and the dissent, the Seventh Amendment was designed to set the boundaries between judge and jury—not between the legislature‘s power to make the law and the jury‘s right to find facts. See Baltimore & Carolina Line, Inc. v. Redman 295 U.S. 654, 657 (1935) (“The aim of the amendment ... is to preserve the substance of the common-law right of trial by jury, ... and particularly to retain the common-law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are to be resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court.“); see also Edith Guild Henderson, THE BACKGROUND OF THE SEVENTH AMENDMENT, 80 HARV. L. REV. 289, 291-299 (1966). The trial court, the Guzmans, and the dissent infuse the inviolate right to a jury trial found in our constitution with a meaning that those who wrote the clause for the federal constitution and those who imported it into the Wisconsin constitution never intended. There is peril in using words or phrases with special historical meaning without comprеhending that history. See State v. Unnamed Defendant, 150 Wis. 2d 352, 358, 441 N.W.2d 696, 698 (1989), overruling State ex. rel. Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 401 N.W.2d 782 (1987) (misreading constitutional functions of the judiciary and of the district attorney).
¶ 11. The law under the Wisconsin Constitution has always been that the parameters of legal rights may properly be set by the legislature. Thus, as explained by McGowan v. Story, 70 Wis. 2d 189, 197-199, 234 N.W.2d 325, 329-330 (1975), in the context of the comparative-negligence statute, which limits the ultimate recovery of a plaintiff who is contributorily negligent, the jury‘s “function in a negligence case is factfinding only,” and the judge must apply the law as enacted by the legislature even though this may frustrate the jury‘s intent to award a certain
The suggestion is that, as long as the statute does not interfere with the actual fact-finding process, the right to trial by jury is not violated. This is ludicrous. As [the trial court] correctly observed, for these argument to stand:
Plaintiffs’ guaranteed day in court would be merely going through the motions...
The right to trial by jury would be rendered nothing more than a mirage if the jury‘s determinations, once made, could simply go unheeded by the legislature.
This contention ignores the fact that this “go unheeded” result happens every time a jury awards damages to an injured plaintiff but determines that he or she is more negligent than “the person against whom recovery is sought” under
B. Separation of powers.
¶ 13. The concept of separation of powers recognizes the ” ‘division of governmental powers among the judicial, legislative, and executive branches.’ ” Barland v. Eau Claire County, 216 Wis. 2d 560, 572, 575 N.W.2d 691, 696 (1998) (quoted source omitted). The trial court
¶ 14. The Guzmans also contend that
¶ 15. As we have seen, the statute establishes the following procedure in cases tried to a jury:
If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.
¶ 16. Peot concerned application of the statutory cap on the recovery for the loss of a child‘s society and companionship by parents suing someone responsible for the child‘s death. Peot, 83 Wis. 2d at 729, 266 N.W.2d at 587. At trial, the defendant‘s lawyer urged the jury to award to the plaintiffs for the loss of the society and companionship of their son damages exceeding the cap. Id., 83 Wis. 2d at 740, 266 N.W.2d at 592. In light of this attempt to have the jury place substantial damages in an award subject to a cap, thereby reducing what the jury would be likely to award as damages for injury subject to a higher cap, Peot held that the jury should be told of the cap. Id., 83 Wis. 2d at 746, 266 N.W.2d at 595 (“We believe that this potential for misleading the jury can be minimized by the trial court‘s instructing the jury that the legislature has imposed a limitation on the recovery of damages for loss of society and companionship and by the trial court‘s telling the jury of the specific dollar limitation prescribed.“).
¶ 17. There is no evidence in the record here that the defendants in this case would seek to have the jury load-up on noneconomic damages with the hope that this would bleed money from its award of economic damages so as to justify an instruction that would cor-
C. Remedy for wrongs.
¶ 18.
Every person is entitled to a certain remedy in the 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 obligated to purchase it, completely and without denial, promptly and without delay, conformably to the laws.
The Guzmans argue that the cap violates this provision. We disagree. Section 9 “confers no legal rights.” Aicher, 2000 WI 98 at ¶ 43. Rather, it preserves access to the courts for redress of rights as those rights may either be created by the legislature, or, of rights recognized by the common law, and not modified or suspended by it under the authority granted to it by
D. Equal protection.
¶ 19. The Guzmans’ contention that the cap on noneconomic damages violates their right to equal protection has several layers—they argue that the cap does all of the following: 1) “creates two classes of tort litigation plaintiffs” (those injured by medical malpractice of a ch. 655 health-care provider; those injured by the negligence of a health-care provider that is not medical malpractice); 2) creates two classes of victims (those whose total noneconomic damages are less than the cap; those whose damages exceed the cap); 3) creates two classes of medical-malpractice tortfeasors (giving to those who have caused the most noneconomic damage a greater measure of partial immunity from having to fully compensate their victims); 4) penalizes those injured by medical-malpractice negligence who will have to share noneconomic damages with a spouse or minor children because the cap applies to each occurrence rather than to each plaintiff. In asking us to assess these imbricated arguments, the Guzmans contend that the cap must pass so-called “strict scrutiny” review, and that, therefore, the presumption of constitutionality does not apply. See State v. McKenzie, 151 Wis. 2d 775, 779, 446 N.W.2d 77, 78 (Ct. App. 1989) (statute passes constitutional muster against an equal-
¶ 20. Access to the courts to pursue redress for injuries is not the type of “fundamental right” to which the strict-scrutiny test applies. Aicher, 2000 WI 98 at ¶ 56. Additionally, classifications created by the
¶ 21. Although the rational-basis test implicates an analysis of five factors, see id., 2000 WI 98 at ¶ 58, the Guzmans do not address any of the five factors.6
E. Substantive Due Process.
¶ 22. Finally, the Guzmans argue that what they call the “arbitrary” cap violates their right to substantive due process. As recently noted in Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73 ¶ 13, 236 Wis. 2d 113, 120, 613 N.W.2d 557, 560-561, the due-process clauses in both the federal and Wisconsin constitutions guarantee “‘more than fair process,‘” and have “‘a substantive sphere as well, “barring certain government actions regardlеss of the fairness of the procedures used to implement them.“‘” (quoted sources omitted). The Guzmans claim that “substantive due process” required the legislature to give injured chapter 655 plaintiffs a “quid pro quo” in return for taking away the right to recover more than $350,000 (or the cap as adjusted as required by the statute) in noneconomic damages. We disagree.
¶ 23. Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), held that retroactive application of a cap on noneconomic damages with respect to a medical-malpractice claim that accrued before the cap‘s effective date violated substantive due process. Id., 192 Wis. 2d at 201, 531 N.W.2d at 88-89. “In Wisconsin, a cause of action is a vested property right only if it has accrued.” Aicher, 2000 WI 98 at ¶ 82; see also Martin, 192 Wis. 2d at 206, 531 N.W.2d at 91 (“recovery, when set by a statute is fixed on the date of injury“). Martin applied a heightened standard of review because the statute modified a right that had vested when the Martins’ claims accrued, see Martin, 192 Wis. 2d at 201, 531 N.W.2d at 88-89, (heightened scrutiny appropriate when vested right affected), and concluded that the retroactive application of the cap took from the Martins their then-existing “substantive right to unlimited damages.” Martin, 192 Wis. 2d at 206, 531 N.W.2d at 91 (footnote omitted). But cf. Neiman v. American National Property & Cas. Co., 2000 WI 83, ¶¶ 9, 22-23, 236 Wis. 2d 411, 419, 425, 613 N.W.2d 160, 163, 166 (“rational basis test is applied when the court reviews
¶ 24. The Guzmans’ claim at issue here accrued after the cap was enacted. Thus, unlike the situation in Martin, the cap did not modify any “substantive right to unlimited damages.” See Martin, 192 Wis. 2d at 206, 531 N.W.2d at 91 (footnote omitted). Accordingly, a heightened-scrutiny standard of review is not applicable. Rather, the applicable rule is that a statute “does not violate substantive due process if it bears a rational relationship to the underlying legislative purpose.” Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 889, 517 N.W.2d 135, 140 (1994). The cap does not deprive the Guzmans of substantive due process.
¶ 25. As we have seen, the legislature has determined that the efficient and effective provision of health care in Wisconsin requires not only a restructuring of medical-malpractice law in this state, see State ex rel. Strykowski, 81 Wis. 2d at 508, 261 N.W.2d at 442, but also significant limits on the time within which claims must be filed, Aicher. As noted earlier, there is a rational relationship between the prospective application of the cap on the recovery of noneconomic damages (affecting all plaintiffs from the effective date of the cap forward) and the legislature‘s goal of preserving health-care services in Wisconsin. Reduced payouts to injured plaintiffs that will result from the prospective application of the cap contrasts with the minimal reductions that would have flown from retroactive apрlication (affecting the few plaintiffs whose claim
By the Court.—Order reversed.
¶ 26. CURLEY, J. (concurring). I reluctantly join the majority decision. My reluctance stems from my belief that the statute barely passes constitutional muster and, were I able as a court of appeals judge to overturn legal precedent that supports the legislature‘s action, I would have found the caps on non-economic medical malpractice damages unconstitutional.
¶ 27. I write to discuss two problems caused by non-economic damages caps which were raised in the briefs and alluded to during oral argument.
¶ 28. First, at present, the long-term effects of medical malpractice caps on non-economic damages are unknown. What is known, however, is that the cap on non-economic damages adversely impacts those injured parties who can least afford to be deprived of their compensation. Currently, the remedy harms
¶ 29. Second, the majority opinion states that the legislature‘s act of capping non-economic damages in medical malpractice cases may have been done to shift the payment of part of the attorney fees back to the victim. In this regard, the legislature‘s decision in setting caps may have far-reaching unintended consequences. Large numbers of those injured at the hands of medical professionals may be prevented from seeking redrеss at all! This is so because capable attorneys are refusing to handle some medical malpractice cases because of the caps. The end result may be that entire classes of legitimate victims of medical negligence will be foreclosed from obtaining any relief for want of a competent attorney to handle their cases.
¶ 30. In Wisconsin, we are fortunate to have many excellent, highly skilled and competent doctors. However, not all doctors are created equal, and even the excellent doctor can make the exceptional tragic mistake. The right to sue and obtain compensation for medical negligence in Wisconsin has been part of our jurisprudence for some time. Despite the longstanding availability of medical malpractice suits, there are not large numbers of medical malpractice cases. This is because successful medical malpractice suits are diffi-
¶ 31. Occasionally media attention has focusеd on the infrequent large attorney fee recouped in a medical malpractice case through the operation of a contingency fee agreement. These articles lead the public to view medical malpractice attorney fee awards as undeserved windfalls. But behind each attorney fee award there stands a seriously injured victim who had to suffer a considerable wage loss, incur tremendous past and future medical expenses, or endure massive pain and suffering in order to be awarded such significant damages. Although an argument can be made that contingency fees are unfair—after all, by their operation, injured persons are never made whole because they are always obligated to pay their attorney a percentage of their award—it is currently the only way victims of medical negligence can secure legal counsel in these cases. I believe it would be poor public policy to continue capping non-economic damages if the caps result in large numbers of victims of medical malpractice being unable to bring suit because of the unwillingness of lawyers to take their cases.
¶ 32. Thus, I urge the legislature to revisit the question of whether a medical malpractice crisis actually exists in Wisconsin and, if it does exist, to consider whether the current remedy of placing caps on non-economic damages is just.
I. BACKGROUND
¶ 34. In June 1997, Audrey Guzman received treatment at St. Francis Hospital for a cervical spine fracture. She alleged that due to the negligence of St. Francis and several health care providers in diagnosing and treating her, she had suffered spinal cord
¶ 35. Guzman, her husband and their two children brought the underlying action seeking damages for, among other things, pain, suffering, loss of consortium, and loss of society and companionshiр. They also asked the circuit court to declare that
II. DISCUSSION
A. The Challenged Statutes
¶ 36. The challenged statutes provide for what is commonly called the “cap” on recovery of noneconomic damages in medical malpractice cases.
Limitation on noneconomic damages. The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider if the act or omission occurs on or after May 25, 1995, and for
acts or omissions of an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits under s. 893.55(4)(d). . . .
(a) In this subsection, “noneconomic damages” means moneys intended to compensate for pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily funсtions; loss of consortium, society and companionship; or loss of love and affection.
(b) The total noneconomic damages recoverable for bodily injury or death, including any action or proceeding based on contribution or indemnification, may not exceed the limit under par. (d) for each occurrence on or after May 25, 1995, from all health care providers and all employes of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the patients compensation fund.
(c) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 [relating to contributory negligence] and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury
shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit. (d) The limit on total nonеconomic damages for each occurrence under par. (b) on or after May 25, 1995, shall be $350,000 and shall be adjusted by the director of state courts to reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments.
B. The Standards of Review
¶ 37. The interpretation of a statute presents a question of law, which we review de novo. Burks v. St. Joseph‘s Hosp., 227 Wis. 2d 811, 824, 596 N.W.2d 391 (1999). We generally will not engage in statutory construction unless a statute is ambiguous. Harris v. Kelley, 70 Wis. 2d 242, 249, 234 N.W.2d 628 (1975). Here, no party suggests that the challenged statutes are ambiguous.
¶ 38. The constitutionality of a statute also presents a question of law, which we review de novo. Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 119, 595 N.W.2d 392 (1999). Statutes are presumed to be constitutional. Id. As the supreme court has explained:
One who challenges a statute‘s constitutionality carries a heavy burden of persuasion. He [or she] must overcome the presumption of constitutionality described in State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46, 205 N.W.2d 784 (1973):
“. . . It is not enough that respondent establish doubt as to the act‘s constitutionality nor is it sufficient that respondent
establish the unconstitutionality of the act as a probability. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt. Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment‘s constitutionality, it must be resolved in favor of constitutionality. This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts. . . .” The court cannot reweigh the facts as found by the legislature. If the court can conceive any facts on which the legislation could reasonably be based, it must hold the legislation constitutional.
State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 506, 261 N.W.2d 434 (1978).
¶ 39. “The presumption of statutory constitutionality is the product of our recognition that the judiciary is not positioned to make the economic, social, and political decisions that fall within the province of the legislature.” Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 20, 237 Wis. 2d 99, 613 N.W.2d 849. Still, neither our respect for the legislature nor the presumption of constitutionality allows for absolute judicial acquiescence to the legislature‘s statutory enactments. Indeed, as the supreme court has emphasized, “Since Marbury v. Madison, it has been recognized that it is peculiarly the province of the judiciary to interpret the constitution and say what the law is.” State ex rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988) (citation omit-
¶ 40. Granting the Guzmans’ motion for declaratory judgment, the circuit court concluded that
For defendants’ argument [that once the jury has ascertained the facts and assessed damages, the jury trial right has been satisfied, notwithstanding the trial court‘s reduction of the damages award to the statutory limit] to stand, plaintiffs’ guaranteed day in court would be merely going through the motions after which the trial court would disregard the jury‘s assessment of damages.
Moreover, as defendants conceded in oral argument, under their interpretation of the power of the legislature, the cap could be reduced to $10 without violating the right to a jury trial because the legislature has the right to change common law rights. Such power would render the constitutional right to a jury trial illusory.
Constitutional protections such as the right to a jury trial are too important and too ingrained into the fabric of our system of justice to be so easily shredded.
¶ 41. The circuit court also concluded that the statutes were an unconstitutional “usurpation of the judiciary‘s exclusive remittitur role in violation of constitutional separation of powers.” The court reasoned:
Because the legislature mandates that trial courts reduce a jury‘s noneconomic damage award to $350,000, there is a conflict with the judiciary‘s exclusive remittitur role in contravention of the Wisconsin separation of powers doctrine.
The doctrine of remittitur of an excessive jury verdict is never compulsory and should only be used upon a clear showing on a case-by-case basis that the evidence of a particular case viewed in the light most favorable to the verdict does not support an award.
This power is, therefore, an essential role exclusively within the judicial province. These provisions invade this role by requiring the reduction without any review of the facts of a particular case.
(Citation omitted.) Although we review the issues in this appeal de novo, we should value the circuit court‘s analysis. See State v. Hansford, 219 Wis. 2d 226, 234, 580 N.W.2d 171 (1998).
D. The Right of Trial by Jury
¶ 42.
¶ 43. The Fund argues that the circuit court erred in concluding that the challenged statutes violate the Guzmans’ right to a jury trial. The Fund asserts that the statutory cap on recovery of noneconomic damages in medical malpractice cases is not only constitutional, but “unremarkable.” After all, the Fund contends:
The “cap” now at issue is only a relatively minor modification to a field occupied 25 years ago as a
way of regulating the economics of medical malpractice. . . . .
Even a cursory review of the Wisconsin Statutes will reveal countless examples of instances in which the Wisconsin Legislature has altered the common law substantially. It has eliminated remedies; it has codified, then modified, a negligent plaintiff‘s right to recover from negligеnt defendants, as well as those defendants’ rights of contribution inter se; it has immunized entire classes of individuals from the proximate consequences of their negligence; it has limited the amount of recovery, regardless of the amount of actual damages incurred [in claims for wrongful death, claims against governmental bodies, and claims against state employees]; it has preempted entire fields formerly governed by common law; and it has abolished common law actions or claims in their entirety.
. . . .
In short, there is nothing unusual about the Legislature‘s decision to cap liability for noneconomic damages in medical malpractice cases. It is simply one example of the Legislature‘s continuing attempt to balance competing economic interests in a world of finite resources.
(Footnotes and citations omitted.)
¶ 44. Notably, however, the Fund points to no examples of the legislature‘s curtailment of the right of trial by jury in the arena of medical malpractice cases. See Aicher, 2000 WI 98 at ¶ 60 (“[T]he distinct nature of the medical malpractice arena itself sets it apart from other forms of litigation.“). I conclude that, under the uncompromising declaration of
¶ 45. “One of the common-law rights recognized by the legislаture is the right to bring a medical malpractice claim.” Aicher, 2000 WI 98 at ¶ 44. “The parties to an action are entitled to a jury trial on all issues of fact, including that of damages.” Jennings v. Safeguard Ins. Co., 13 Wis. 2d 427, 431, 109 N.W.2d 90 (1961) (emphasis added). Noneconomic damages often are “hard to measure, and must rest in the discretion of the jury, guided by common sense.” Butts v. Ward, 227 Wis. 387, 404, 279 N.W. 6 (1938).
¶ 46. Almost a century ago, the supreme court declared, “It would be inconceivable that the people of Wisconsin, in establishing a government to secure the rights of life, liberty, and the pursuit of happiness, should by general grant of legislative power have intended to confer upon that government authority to wholly subvert those primary rights . . . .” State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 532-33, 90 N.W. 1098 (1902). Unquestionably, the right of trial by jury is among those “primary rights.” See
¶ 48. “The right of trial by jury shall remain inviolate. . . .”
¶ 49. Clearly, and beyond all doubt, the cap violates an individual‘s right to a jury trial by infringing upon and impairing the jury‘s authority with regard to the amount in controversy. As Guzman argues:
The legislature has mandated that the circuit court and medical malpractice litigants engage in a charade in which the jurors are given the illusion of decision making. The jury is instructed on the law, renders a verdict based on all of the evidence presented, and, then, after it is discharged, the trial court is required to disregard its verdict if it awards more than $350,000 in noneconomic damages.
¶ 50. Although, as noted, the supreme court has not directly addressed the issue in this appeal, see n.5 above, the court, in Strykowski, in the context of challenges to the constitutionality of statutes allegedly affecting the right to a jury trial in medical malpractice cases, commented extensively in ways that clearly counter the majority‘s conclusion. See Strykowski, 81 Wis. 2d at 522-31. In Strykowski, the petitioners argued, among other things, that the patients’ compensation panel process of the original version of
¶ 51. The supreme court explained that the patients’ compensation panel process consisted of “proceedings preliminary to trial.” See id. at 524 (emphasis added). Significantly, however, the court rejected the argument that the panel process infringed upon the right of trial by jury for a simple reason: “The medical review panel does not decide the case; the ultimate arbiter of all questions of fact is the jury.” Id. at 526 (emphasis added). Further, precisely because
¶ 52. In Strykowski, the supreme court invoked the words of Justice Brandeis, writing for the United States Supreme Court in In re Peterson, 253 U.S. 300, 309-10 (1920):
“. . . The command of the Seventh Amendment that ‘the right of trial by jury shall be preserved’ does not require that old forms of practice and procedure be retained. It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right. The limitation imposed by the Amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with.”
Strykowski, 81 Wis. 2d at 529-30 (citations omitted; emphasis added). And later in its opinion, the supreme court again invoked the United States Supreme Court‘s powerful words, this time from Meeker v. Lehigh Valley Railroad Co., 236 U.S. 412, 430 (1915), in which the Court rejected a constitutional challenge to another alleged denial of the right of trial by jury precisely because the challenged rule “‘cuts off no defense, interposes no obstacle to a full contestation of
¶ 53. Thus, both the Wisconsin Supreme Court and the United States Supreme Court have held true to the authority of the jury as the “ultimate arbiter of all questions of fact,” see id. at 526, or, at the very least, to the authority of the jury, as reviewed by the trial judge, to make those “ultimate” determinations of all questions of fact, including damages, with respect to the specific facts of each case.6
¶ 54. In this respect, the majority‘s reliance on comparative negligence law is completely misplaced. When, in a case involving comparative negligence, the
¶ 55. The Wisconsin Supreme Court, throughout Wisconsin‘s history, has “rigidly maintain[ed], inviolably, the right of trial by jury.” Finkelston v. Chicago, Milwaukee & St. Paul Ry. Co., 94 Wis. 270, 278, 68 N.W. 1005 (1896). Indeed, our supreme court has declared that “[n]o court has stood more steadfastly and consistently for an unimpaired right of jury trial.” Thoe v. Chicago, Milwaukee & St. Paul Ry. Co., 181 Wis. 456, 466, 195 N.W. 407 (1923).
¶ 56. This court must do no less. See State v. Clark, 179 Wis. 2d 484, 493, 507 N.W.2d 172 (Ct. App. 1993) (court of appeals bound by supreme court decisions).
Notes
While not conceding liability, the appellants do not dispute that Guzman‘s noneconomic damages exceed $350,000 and, therefore, that the determination of the constitutionality of the challenged statutes will directly affect the amount of Guzman‘s potential recovery.Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.
Even as an evidentiary standard, different judges have different views as to what is required for proof to be “beyond a reasonable doubt.” For example, a survey of federal trial judges in the Eastern District of New York discovered that their estimates of what, in a probabilistic sense, was required to satisfy the “beyond a reasonable doubt standard” “ranged from 76 to 90 percent, with 85 percent the modal response.” See United States v. Shonubi, 895 F. Supp. 460, 471 (E.D.N.Y. 1995) (survey reported in United States v. Fatico, 458 F. Supp. 388, 410 (E.D.N.Y. 1978), aff‘d on other grounds, 603 F.2d 1053 (2d Cir. 1979)), sentence vacated on other grounds, 103 F.3d 1085 (2d Cir. 1997). Indeed, Fatico reports on another survey of judges where almost one-third of those responding “put ‘beyond a reasonable doubt’ at 100%.” Fatico, 458 F. Supp. at 410. Moreover, any standard, irrespective of how high, can be applied errone-
It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Campbell v. Sutliff, 193 Wis. 370, 378, 214 N.W. 374 (1927), overruled on other grounds by Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 102 N.W.2d 393 (1960).[Parties have the right] to have the amount of the verdict fixed by the jury, but subject always to the control over the amount which the court possessed at the time that the constitution was framed. This exercise by the court of the power to limit the amount of damages that may be assessed by a jury is not an invasion of the constitutional right to trial by jury because that power on the part of the court was a part of the trial by jury which the constitution declared shall remain inviolate. Indeed it may be doubted if trial by jury would have survived the centuries if it had not been subject to such control by the courts.