Maurin v. Hall

Rеpresentative of M. as Personal Yvette Maurin, Shay Leigh deceased, Maurin, Estate of Plaintiff-Respondent-Cross-Appellant,† Individually and Personal M. as Yvette Maurin, Leigh Shay Representative Mau of the Estate Plaintiff-Respondent, Joseph rin, Maurin, Inc., Plaintiff, Quad/Graphics, v. Physicians Insurance Com M.D.,

Gordon Hall, Compensa pany Wisconsin, Inc., and Patients Defendants-Appellants-Cross- Fund, tion

Respondents.

Supreme Court argument April Oral 2004. Decided No. 00-0072. July 100WI (Also 866.) reported in 682 N.W.2d (see 2004 denied 10-29-04 WI † Motion for Reconsideration 129). CROOKS, J., C.J. and

AbRahamson, concur.

WiLCOX, J., concurs. Syees, J.J., join.

Pkosser and J., concurs. Bradley, defendants-appellants-cross respondents

For by Sicklen, B. Roberta F. briefs Michael Van there were Foley Lardner, Madison; Howell & Mark E. Larson Gutglass, Erickson, Bonville, Falkner, Seibel & Sager Sager, S.C., Milwaukee; Colwin, Steven E Associates, Samuelson & Lac; Fond du John S. Skilton LLP, Heller Ehrman & McAuliffe, Madison, White argument by Howell, and oral Roberta F. Mark E. Sager. Larson and Steven E plaintiff-respondent-cross appellant

For the there End, Hierseman, were briefs J. Michael Jerome A. Gray End, L.L.P., Lora A. Kaelber and & Milwaukee, argument by and oral J. Michael End and Jerome A. Hierseman. by Timothy

An amicus curiae brief was filed J. Muldowney, L. Peterson and LaFollette God- Jennifer frey Kahn, Madison; Leitch, & J. Madison; Lana and Cohen, Mark L. Adams and Madison, Melanie on behalf Society, of the Wisconsin Medical The American Medi- Hospital cal and Association, The Wisconsin Associa- tion, Inc. by

An amicus curiae was filed brief William C. Gleisner, Gleisner, III and Law William Mil- Offices of Dunphy, waukee; Edward E. and Robinson Cannon & Skoglind S.C., Brookfield; David M. and Aiken & Scoptur, S.C., Milwaukee, on behalf of the Wisconsin Academy Lawyers. of Trial

¶ 1. T. PROSSER, DAVID J. This case comes appeals before us on certification from the court of (2001-02).1 § pursuant to Wis. Stat. 809.61 Yvette Mau individually capacity personal repre rin, and in her as daughter's Joseph estate, Maurin, sentative of her and brought capacity, in his individual re- this lawsuit to 1All references to the Wisconsin Statutes are to the 1995-96 edition unless indicated. otherwise wrongful malpractice death of for medical

cover daughter, Shay five-year-old Maurin. their relate to ¶ certified for our review 2. The issues malpractice damage that results for medical awards by the court of the two issues certified death. Werestate appeals parties: presented pose a third issue may malprac- plaintiffs ¶ in a medical First, 3. by medical a death caused action, where there is tice negligence, on noneconomic recover the limit negligence death? for both noneconomic Second, is the limit on malpractice death case constitu- in a medical tional? erroneously exer- Third, did the circuit court ordering a remittitur of the verdict discretion in

cise its suffering, pre-death pain in favor of the estate $550,000 $100,000. from to single cap conclude that there is a 6. We health care recoverable from patient providers dies. for medical when for the deceased is the dollar amount listed 895.04(4). eligible § patient Claimants Stat. Wis. under Stat. 655.007 make a death claim separate claims for the amount are entitled make 895.04(4) for a death that occurred Stat. listed Wis. May through April during period 25,1995, from in Rineck v. 1998, because of this court's decisions (1990), Johnson, rev'd 155 Wis. 2d 456 N.W.2d Chang grounds, State Farm Mut. Auto Ins. on other v. (1994), Co., 549, 2d 182 Wis. N.W.2d Co., 1, 2d Paul Fire & Cas. Ins. 182 Wis. Jelinek v. St. (1994). 512 N.W.2d

¶ limit on noneco- also conclude that the 7. We in a medical nomic death case is constitutional. questions

¶ to the first two make 8. Our answers question unnecessary close it to address the of remitti- Accordingly, tur in the decision of the circuit this сase. proceed- court reversed the cause remanded for is ings opinion. consistent with this AND HISTORY

FACTS PROCEDURAL Shay Leigh tragic ¶ a Maurin died 9. This is case. 1996, 8, on March of acute diabetic ketoacidosis. The five-year-old daughter Joseph Yvette and Maurin had appeared healthy child, free illness, to be a of serious parents until before her death. Her were the week daughter their suffered from diabetes unaware that untreated, If it can lead to mellitus. diabetes mellitus diabetic ketoacidosis and death. days During 1996, the first few of March 10. lethargic,

Shay feeling had not been well. She was day eating drinking poorly. Maurin fluids all Yvette daughter to Bend on took her the General Clinic West Physician Randy Purcell March 1996. Assistant diagnosed Shay prescribed with an ear infection and Shay Purcell advised that should have antibiotics. also fingerstick blood to check for diabetes —if test —used improve. symptoms her did not Shay's rapidly over the condition worsened eat, next 24 She was unable she vomited hours. dry-heaved, fruity led and the odor of her breath her might have The mother mother to fear she diabetes. Hospital brought Shay Memorial late to Hartford point, Shay's evening By diabetes had of March 6. this progressed Dr. Gordon to acute diabetic ketoacidosis. diagnosis Shay, Hall failed to make the attended but diabetic mellitus or acute ketoacidosis. diabetes Shay morning, The next March re- pain. Hospital in turned to Hartford Memorial serious Madenberg diagnosed Dr. David the acute diabetic attempted and ketoacidosis treatment before transfer- ring Shay Hospital Shay to Children's of Wisconsin. lost during consciousness the ambulance ride to the new hospital day. and died the next Washington County jury In 1999 a found negligent Shay that Dr. Hall was in his care of Maurin negligence jury and that his caused her death. The Shay's pre-death pain awarded $550,000 estate for her suffering parents wrong- and and $2,500,000 to her as damages society compan- ful death for their loss of ionship. post-verdict parents sought In motions, the Washington County

and obtained from the Circuit Judge, ruling Court, Lawrence F. Waddick, that the 895.04(4) cap Wis. Stat. death was unconsti- deprived litigants right tutional because it of the basic jury process equal trial, to a violated the due protection usurped clauses of the constitution, and power judiciary. parents sought also but ruling failed to obtain a that an increased cap apply retroactively death could to deaths that statutory occurred before the effective date of the sought increase. Dr. Hall and obtained remittitur with respect pain suffering, to the estate's verdict for reducing from $550,000 $100,000. appealed

¶ 15. Dr. Hall the circuit court's decision holding cap unconstitutional and appeal also raised on the issue of whether the estate and parents were each entitled to noneconomic up respective to the limits for medical wrongful death. appeals pending 16. The court of held the case

decisions in three relevant cases: Neiman v.Am. Nat'l Prop. Co., & Cas. 2000 WI 236 Wis. 2d appli (holding retroactive unconstitutional N.W.2d on of an increased cation

wrongful accrued before to claims that death actions cap); Guzman v. St. date of the new the effective App Hosp., 559, 2d Inc., 21, 240 Wis. 2001 WI Francis cap (holding on non- constitutional 623 N.W.2d actions); malpractice damages in medical economic Natwick, 2d 2002 WI 257 Wis. v. Schultz involving (applying to all cases Neiman N.W.2d cap noneconomic dam increase retroаctive cases). ages in death agreed parents decisions, the 17. After these application the increased of of retroactive

that the issue wrongful against cap them, had been determined longer in the case. issue is no and that

ANALYSIS Damages From Medical on Noneconomic A. Limitation Wrongful Resulting Malpractice Death what determined is The issue to be first apply in medi- noneconomic limits limit or possi- malpractice three There are death. cal bilities: recovery for parents' contends that

1. Dr. Hall a total of is limited to society companionship loss noneconomic $150,000 the entire award wrongful death award (including parents' to the suffering award pain and any conscious estate) limit in Wis. Stat. cannot exceed inflation, is for 893.55(4)(d), which, adjusted § $381,428. may recover estate that the parents contend suffering Shay's pain and for up

before death to the limit malpractice set for medical 893.55(4)(d) § under parents may Wis. Stat. and the society recover for loss of and companionship up to the limit set death under Stat. 895.04(4). 893.55(4)(f), § § which references Wis. Stat. remittitur, Absent the issue of theory the effect of this produce damages $381,428 would plus $150,000, $531,428. a total of

3. A third interpretation that, a medical malpractice case, single there is a cap on noneconomic damages. The cap amount of the is determined whether patient survives the patient whether the patient dies. When the survives the medical malpractice, cap is contained in Wis. Stat. 893.55(4)(d). patient dies, When the is con- 895.04(4). tained in Wis. Stat. In cases where medical malpractice death, leads to applies in lieu of—not in addition to—the medical malpractice cap. 19. We conclude that

¶ third interpretation constitutes the correct of the reading statutes. How Rineck, ever, our decisions in 155 2d 659, Wis. and Jelinek, 182 2d 1, Wis. cause us to add separate awards for the two parents $300,000. equal As will be explained, this is a temporary phenomenon for claims arising between May 25, 1995, and 27, April 1998. 20. As this is a

¶ case of statutory interpretation, our analysis should begin with the plain language statutory text. State ex rel. Kalal v. Circuit Court for Dane County, 58,WI 44-45, 271 633, Wis. 2d ¶¶ see also Czapinski v. St. Francis Hosp., 110; N.W.2d Inc., 80, 17, WI 316, Wis. 2d ¶ 613 N.W.2d 120. 893.55(4) The language § Wis. Stat. is to be read in context, into taking account the section at issue and the Kalal, 633, 271 Wis. 2d 46. scheme. statutory ¶ entire are relevant so of the statutes The scope purpose are ascertainable from long scope purpose as Id., 48. statutory language. ¶ text, the relevant our review of upon 21. Based

¶ be as follows. interpreted statutes should applicable dam- There for noneconomic single cap as noted in Wis. Stat. in medical cases ages malpractice 893.55(4)(b) provides: which The total noneconomic recoverable death, including any proceed- bodily injury or action or indemnification, may not ing based on contribution (d) each occurrence on or par. the limit under exceed May providers from all health care after acting within the providers of health care employes all care providing health scope employment of their patients and from the negligent are found services who added). (Emphasis compensation fund. are of in this statute para- 23. Several words each "total" and "for The words mount importance. single intended a legislature that the occurrence" reveal involving or "occurrence" for each incident recovery legis- death" "or show words malpractice. if even recovery a single lature intended to provide death.2 in a wrongful resulted 893.55(4) Stat. Other paragraphs medical mal- from resulting scenarios address various astray majority goes that "The The concurrence contends action for a cause of equates the word 'death' with when it However, Concurrence, the concur 137. ¶ death." § Stat. 655.007 language Wis. simply disregards the rence death on having claim for ... any a derivative "parent... chapter." See subject ¶ to this malpractice is account of Stat. Stat. ch. 655 and Wis. linkage between Wis. infra, for the 893.55(4) (d). § a

practice. When survives medical patient malpractice, the cap on noneconomic is contained in damages 893.55(4)(d), § Stat. which provides: The limit damages on total noneconomic each occur- for (b) par. 25, 1995, rence under May on or after shall be $350,000 adjusted by and shall be the director of state changes to reflect price courts in the consumer in- added). (Emphasis dex .... a patient When dies as a result of medical

malpractice, damages is trans- § ferred to 895.04(4), Wis. Stat. which provides: Judgment damages pecuniary injury for for from may be any person awarded to entitled bring wrongful death action. Additional $150,000 society not to exceed compan- loss of ionship may spouse, be awarded to the children or added). parents (Emphasis of the deceased. 26. The bridge taking a medical 893.55(4)(d) claim in a death § case from Wis. Stat. 895.04(4) Wis. Stat. is Wis. Stat. 893.55(4)(f), which provides:

Notwithstanding the limits on noneconomic subsection, under this against recoverable providers health care employe and an aof health care provider, acting scope within the employ- his or her providing ment and services, health care 895.04(4). (Em- subject death are to the limit under s. added). phasis It should be noted that economic damages a medical malpractice wrongful death case are not opinion,

In this all references to the "concurrence" are intended to refer to the concurrence of Shirley Chief Justice S. Abrahamson and Justice Patrick N. Crooks. damages"

capped. "Economic are alluded to Wis. Stat. 893.55(5) (6), § 893.55(4)(e), § § and 895.04. Eco- and earnings earning of or nomic include "loss injuries damages." capacity" and "other economic and 893.55(5). beyond § Consequently, issues of Stat. damage proof, disputes in medical cases damages, are de- tend to involve noneconomic which 893.55(4)(a): § fined in Wis. Stat. subsection, damages" means mon-

In this "noneconomic suffering; eys compensate pain intended to for and embarrassment; distress; humiliation; worry; mental disability including of en- effects of loss noneconomic activities, pleasures and joyment of the normal benefits health, well-being physical and of mental or of life loss consortium, functions; society and bodily loss of or loss of love and affection. companionship; society companionship" in- of is 28. "Loss damages." of "noneconomic Loss cluded in the definition society companionship for noneco- is basis damages in a death claim. Wis. Stat. nomic 895.04(4). society § result, loss As 895.04(4) § companionship are included within death in recoverable" for "total 893.55(4)(b).3 § Wis. Stat. recovery parents in this case seek 29. The resulting child from of a minor

the death patient's representative, Every patient, malpractice. conclusively pre- provider "shall be and health care the definition of "loss acknowledges that The concurrence 893.55(4)(a) § Stat. society companionship" Wis. companionship" society and enough encompass "loss of broad contends, however, that It wrongful death statute. under the 893.55(4)(f) damages from exempts § Wis. Stat. 893.55(4)(d). § under accepted by" sumed to have to be bound Wis. Stat. ch. 655.006(1). 655. Wis. Stat. Wisconsin Stat. 655.007 provides "any patient patient's representa or the having any parent. patient tive a claim , or . . . . . of having a derivative claim .. . death on account subject Chapter is to" 655 of the Wisconsin added). (Emphasis parent's Statutes. A claim for the society companionship loss of of a minor child is a Family derivative claim. Co., Korth v.Am. Ins. 115 Wis. (1983); Montgom 326, 331, 2d 340 N.W.2d494 Giese v. ery Ward, Inc., 111 2d 392, 405, 331 N.W.2d 585 (1983); Lunder, see also White v. 563, 574, Wis. 2d (1975). 225 N.W.2d442 §

¶ 30. Wisconsin Stat. 655.017, entitled "Limita- damages," Chapter tion on noneconomic links 655 to 893.55(4)(d). § Wis. Stat. It reads: The amount of damages noneconomic by recoverable claimant plaintiff under chapter this for acts or provider omissions of a health care if the act or omis- sion May 25, 1995, occurs on or after and for acts or employee omissions of an of a health provider, care acting within the scope of his or employment her providing services, health care for acts or omissions occurring May 25, 1995, on or after subject to the 893.55(4)(d) (f). limits under s. inescapable ¶ 31. The conclusion is that deriva- resulting tive death claims from medical mal- practice are covered the limitations outlined in Wis. 893.55(4). § Stat. brings question

¶ 32. This us to the non- how damages wrongful economic in death cases are limited. 893.55(4)(d) § If 33. Wis. Stat. stood alone be- (4)(f), cause there were no subsection then subsection (4)(d) damages, including would total noneconomic society companionship under for loss of 895.04(4). § the unanimous decision of this This was Rineck, If no 155 Wis. 2d at 665-69. there were court 893.55(4)(d), caps then there would at all Wis. Stat. be no limits court in

death. That was the unanimous decision Jelinek, 2d at 14. 182 Wis. legis- Against background, why this did the 893.55(4)(f)? paragraph

lature create Wis. Stat. part: reads in

(f) Notwithstanding the limits on noneconomic dam- subsection, ages under this recoverable wrongful death are against providers health care ... for 895.04(4). subject the limit under s. 893.55(4)(f) § created 35. Wisconsin Stat. was Act 10. This act did not amend 1995 Wisconsin

§ wrongful Consequently 895.04, the death statute. we 893.55(4)(f) § creating purpose can conceive of no if single cap legislature retain the in Wis. intended to 893.55(4)(d) § to cover total noneconomic dam- Stat. involving ages mal- in a death case practice. result would have been achieved same paragraph. creating This leads us to without the new reject interpretation Dr. Hall's of the statute.4 in the limit Wis. Stat. spite If 38. we substitute "in of' for "notwith-

standing," spite the clause would read: "In of the limits on noneconomic under subsection, this dam- ages against providers recoverable health care . .. for subject death are to the limit under 895.04(4)." added). § (Emphasis reading A natural "in "in language this is closer to lieu of than addition to." One limit appears supersede another. Legislative 39. The Reference Bureau's drafting

manual in effect at the time the 1995 legislation was enacted directs drafters to overbroad preemp- "[a]void " tion such as provisions" 'notwithstanding other any contrary.'. Instead, law to the . . find the statutes that conflict provision with new and refer to them State of Wisconsin specifically." Legislative Reference 9.05(5) Bill Wisconsin Manual Bureau, Drafting § (1994-95). 893.55(4)(f) § Wisconsin Stat. specifi- refers to "the limits on cally under this 4(f) subsection," that subsection suggesting preempts 4(d). subsection 40. The use of preemptive "notwithstanding" 655.23(4)(c)l. §

can be seen in Wis. Stat. and 2. 895.045(2) (2001-02).6 (2001-02);5 § and Wis. Stat. 655.23(4)(c)l. (2001-02) provide: Wisconsin Stat. and 2. Except 2., provided 1. as in subd. self-insurance shall be in $200,000 $600,000 amounts of at least for each occurrence and any policy year July all in occurrences one for occurrences before 1, 1987, $300,000 $900,000 for each all occurrence occur- 1, any policy year July rences one for occurrences on or after 1987, 1, 1988, $400,000 July and before for each occurrence and $1,000,000 any policy year for all occurrences in one for occur- July 1, 1988, July 1, 1997, rences on or after and before $1,000,000 $3,000,000 for each occurrence and for all occurrences any year July 1, policy one for occurrences on or after 1997. Notwithstanding 1., subd. in the discretion of a self-insured provider, may health care self-insurance be an amount that is $1,000,000 $600,000 than not less than for each occur- less but 1, 1997, 1, 1999, July July rence after and less on or before $1,000,000 $800,000 than but not less than for each occurrence on added). July 1, July (Emphasis or after and before 895.045(2) (2001-02) provides: Stat. Wisconsin easy enough to collect cases It would be "notwithstanding." e.g.,

interpreting See, Lib the word erty Corp. States, United 928 F.2d 416-17 Mar. v. (D.C. 1991) (suggesting phrase preceded that a Cir. notwithstanding any conflicting pro should overcome vision). practice the advice in But the better is to follow (3d Skinner, Conoco, 970 F.2d Cir. Inc. v. 1992), meaning of 'not that "courts must discern the history, withstanding legislative purpose, from the regard, In a court of the entire statute." this structure principal in confront the declaration Wis. Stat. must 893.55(4)(f) against § "damages health that recoverable subject providers are to the care . . . for 895.04(4)." added). (Emphasis limit under s. This dec nothing if added to the statute it did not reduce laration damages recoverable for ... death." "total Moreover, the careful reader cannot fail to observe the subject similarity phrase "are to the limit between the 895.04(4)" (4)(f) § phrase and the under subsection 893.55(4)(d) (f)." subject "is to the limits under s. "Subject suggests dependent upon to" that are the limit in the enumerated statutes. (4)(f) interpretation

¶ 42. Our of subsection is 893.55(4)(b), pro- consistent with Wis. Stat. which per for "total noneconomic recoverable" vides if occurrence even the occurrence leads to death. (4)(f) interpretation concurrence's of subsection makes 893.55(4)(b) nothing superfluous. There in the text signals complete policy of the statute that shift (2) (1), Notwithstanding parties if 2 Concerted action. sub. or more plan, parties act in accordance a common scheme or those are with jointly severally damages resulting all liable for from (5). added). action, except provided (Emphasis as s. 895.85 away single cap from a for noneconomic to two separate caps top that can be stacked one on other. single cap

¶ interpretation 43. The is also consis- wrongful tent with the 1998 amendments to the cap society compan- A $500,000 statute. on loss of and ionship represents for the death of a minor child statutory cap. cap 333.3% increase in the $500,000 A on top malpractice cap, of the medical as the concurrence appear it, would have would to be at odds with the purpose of the statute. damages

¶ 44. We conclude that noneconomic in a malpractice wrongful by capped death case are 895.04(4). § They capped in limitation Wis. Stat. are liability providers by requir- to limit the of health care ing any that noneconomic that would have 893.55(4)(d) subject § been to the in Wis. Stat. and personally awarded to the deceased if he or she had subject lived, are instead to the limit in Wis. Stat. 895.04(4) § by normally and shared survivors who are plaintiffs in a death action. That limit is $500,000 now for a minor $350,000 and for an adult. major ¶ argu- 45. The concurrence makes two using statutory points ments First, construction. it § language of Wis. Stat. 655.017: "The amount of recoverable a claimant or plaintiff chapter subject under this ... is to the limits 893.55(4)(d) (f)."According under s. to the concur- § recovery rence, "The text of 655.017 does not limit 893.55(4)(d) § the lesser of either the malpractice limit for medical 893.55(4)(f) § or the limit § Rather, death. 655.017 directs us to both 893.55(4)(d) (f) §§ to assess the limits imposed malpractice causing wrong- in cases of medical legislature Concurrence, ful death." 181. "Had the 893.55(4)(d) § recovery to either to limit intended 893.55(4)(f) pa- depending § on whether limit language." Id., used different died, it would have tient § argument response that 655.017 to this 182. The binding to the the reader than direct little more does (d) (f) 893.55(4). § limits "and"between The word in (4). limits in subsection are two that there indicates not does The word "and" be considered. Both must imply Clearly, a both limits. a claimant collects that surviving collects under who victim (4)(d) society and for loss not also collect does (4)(f). companionship Hence, the "and" word under imply case. a result this does not 655.017 phrase stresses Second, the concurrence 893.55(4)(f) Stat. death" Wis. "for phrase "the limits that means that use of asserts 893.55(4) (the § mal- medical in Wis. Stat. contained apply." ¶ cap) Concurrence, 139. practice not do providers against "[D]amages care health recoverable society and of death, is, for loss subject companionship, limit under to the are 895.04(4)." jury response, the in this Id., ¶ In leading negligence, death. Conse- to medical case found taking quently, case, the case this is a placing If it another. and under out from under one separate legislature had to create the wanted 895.04(4), society companionship under for loss of language. easily with different it could have said so appropriate to ¶ this, it is In a case such as interpretation history legislative our to confirm consult (citing Kalal, 633, 2d 51 271 Wis. of the statute. See ¶¶ 2d O'Connell, 51-52, 236 Wis. 76, 2000 v. WI Seider 659). 211, 612 N.W.2d legislature years, past has 30 48. Over the controlling abiding in interest an

demonstrated 50 including care, costs of health the costs related to malpractice. legislature medical The has a con- shown pattern funneling restricting sistent medical malpractice actions to control costs. It incremen- has tally procedures filing circumscribed medical malpractice actions and limited noneconomic dam- ages in such available actions. legislature

¶ 49. In 1975 the made its first effort Liability Compen to Care address "Health and Patients by creating Chapter 37, sation" Laws 1975. At the beginning chapter, legislature extensive made findings upon past that we have relied decisions. Comp. Fund, Aicher v. 98, Wisconsin Patients 2000 WI Czapinski, 22, 2d 613 849; N.W.2d Strykowski (1978). ¶ 14; Wilkie, Wis. 2d 316, State ex rel. v. findings Wis. 2d 491, 261 N.W.2d434 These presented Appendix opinion. are as an to this Strykowski,

¶ 50. In court summarized the legislative findings acknowledged legisla- that the response perceived tion "was enacted a economic many Among and social 2d at 509. its crisis." Wis. legislation provisions, created a Patients Com- pensation pay malpractice Fund awards legislation above certain limits. Id. at 500. also procedure prosecution "established an exclusive for the '[h]ealth against provider.'" claims care added). (emphasis Id. at 499 This can be seen two §§ sections, Wis. Stat. 655.005 655.007: (l)(a) Remedy. 655.005 On after the effective [1975], patient, every every patient's date of this act representative every provider health care be shall conclusively presumed accepted to have to be bound chapter. this effective and after the claims. On Patients'

655.007 [1975], patient's the any patient or of this act date death on injury or having a claim representative, chapter. subject to this is malpractice account procedure legislation created a The 1975 51. malpractice, the addressing not limit but it did medical malpractice. arising damage See medical out of awards Richards, 2d 531 N.W.2d Martin v. (1995). legislature Stat. amended Wis. July In 1984 any 24, 1975, after "On and to read: 655.007 any having representative patient's claim or

patient a or having patient a derivative spouse, parent or child of malpractice injury is account of death on claim for (emphasis chapter." subject Act 253 1983 Wis. to this amendments). Stat. Current Wis. to show added for medi- claims to cover derivative continues 655.007 including malpractice, death. claims for derivative cal Strykowski amendment, this Even before stated that: court substantially distinct actions are malpractice

Medical plainly The classification other tort actions. from applies to all purposes. The law to the act's germane therein. as described providers care victims health circumstances sur- declares that legislature (cid:127)The litigation and insurance malpractice rounding medical legislation. the enactment of required added). (emphasis Strykowski, 2d at 509 81 Wis. legislation not was successful The 1975 Consequently, controlling in 1985 the health care costs. global cap attempted place legislature on all recovery case. It considered in a product 328, which was Bill 1985 Senate Special Legislative Medical Committee Council's Malpractice. attempted impose Senate Bill 328 to a $3,300,000 on "total recoverable" in a Chapter malpractice 655 medical action. The relevant portion provided: Senate Bill

The total recoverable under ch. 655 for bodily injury death, any including proceed- or action or ing indemnification, based on may contribution not $3,300,000 exceed for each occurrence from all health care all providers employes providers ‍‌‌‌​​​​​‌‌‌​​‌‌‌‌​​​​‌​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‍of health care acting within the scope employment of their and pro- viding health care negligent services who are found patients compensation any from fund for act or occurring omission on or after the effective date of this subsection.

1985 S.B. 328. Legislative explaining 54. The Council note this proposed section [$3,300,000] stated: "This limitation applies any person bringing malpractice to a medical patient family patient claim, whether a aor member aof having applies a derivative claim. limitation total amount recoverable the claimant or claim- (Analysis by Legislative ants ... ." Council of 328) added). (emphasis again, wrongful S.B. Once a qualifies by family death claim as a "derivative claim" a phrase member. Hence the "total recoverable" single cap indicated that the Bill Senate intended a apply when resulted in death. pass,

¶ 55. 1985 Senate Bill 328 did not it is but significant understanding current it law because provisions contained two were carried over to legislation pass that did in 1986. Seе 1985 Wis. Act 340. legis- both First, the 1985 bill and the 1986 provision lation contained section 655.017. The part: Bill 1985 Senate 328 read Recovery. of dam- The amount Limitation 655.017 chapter under by a claimant this ages recoverable subject provider a care ... or of health acts omissions 893.55(4). under s. to the limitation 1985 S.B. 328. read: legislation The in 1986 provision

¶ Damages. The Limitation on Noneconomic 655.017 damages by a recoverable amount of noneconomic chapter this for acts or plaintiff under claimant subject to a ... is provider of health care omissions 893.55(4). limit under s. Bill 4. Assembly 1986 Session May Special legislation from the 1986 58. Section 655.017 in medical damages tied noneconomic claims, derivative including claims under Chapter 893.55(4). Stat. to the limit Wis. 1986 Second, both the 1985 bill and the a creating section contained

legislation provision 893.55(4). Bill per- The in 1985 Senate 328 provision recoverable" is taining damages quoted "total equivalent provisions May Special above. The Bill 4 read: Assembly Session 893.55(4)(b) damages recover- The total noneconomic may exceed the under eh. 655 ... death ... not able (d) all par. limit for each occurrence from health under providers. care

893.55(4)(d) The limit on total noneconomic (b) $1,000,000 par. shall be each occurrence under or after the effective date this for actions filed on adjusted by . the director of paragraph .. and shall be price changes to reflect in the consumer state courts index. added). (emphasis

1986 A.B. 4. legislation obviously ¶ 60. The 1986 was different from the 1985 bill. The dollar was reduced from $3,300,000 $1,000,000, with the latter amount in- applied dexed. this But limit to "total noneconomic recoverable" instead of "total recov- leaving damages uncapped. erable," economic 893.55(4) newly created subsection was also broken paragraphs. into several Interestingly, May

¶ 61. the first draft of Special Assembly Session Bill 4 did not contain the modify damages." Legisla- "total" to word "noneconomic Drafting May tive Reference Bureau File for 1986 A.B. (LRB 5441/1). However, the drafter added the modi- legislature fier "total" in the draft, second and the ultimately enacted the bill in that form. Wis. Stat. 893.55(4)(b). § logical It is that when the assume drafter the word "total" into the between inserted bill important drafts, the someone believed word was so part that it had be final to made bill. The word an "total" reveals intention to limit noneconomic dam- ages malpractice single cap, in to a the suits either one 893.55(4)(d) § conceivably, or, in Wis. Stat. the one in 895.04(4) death). § (pertaining wrongful Wis. Stat. key Rineck, in 62. This was the issue 155 Wis. interpreted Rineck, at 2d 661. In the court Stat. § malpractice 893.55 to mean that when medical re- wrongful statutory death, $1,000,000 sulted in the limit damages noneconomic under Wis. Stat. 893.55(4)(d) § superseded cap the dam- on noneconomic ages wrongful under death the statute. The court said: malpractice that in a "We conclude medical action involving recovery death, $1,000,000 the limitation on damages specific imposed for total noneconomic the supersedes malpractice applicable to actions statutes wrongful limitation in the death $50,000 contained the Id. statutes." history carefully the 63. The court traced malpractice and decided issue

medical statutes statutory using it construction. Had decided the issue gap differently, $950,000 would have been a there malpractice between medical 893.55(4)(d) malpractice § and a medical award under 895.04(4). death award under court very supersеded cap it clear that one other: made "Significantly, Stats., not

ch. does state that dam- ages malpractice also medical cases are recoverable general subject $50,000 provisions to the limitation under 895.04(4)." Id. of sec. at death added). cap (emphasis applied one The court chose cap saying was claim, it to the "inapplicable." at Id. January cap 1, 1991, 64. On on noneco- 893.55(4) "sunset,"

nomic Wis. Stat. was meaning longer recovery of that it no limited noneco- malpractice court nomic cases. This recognized saying: "Although Jelinek, much in as malpractice damages in medical on non-economic objectives legislative [ ] expired, has two claims resulting enacting tort claims ch. Stats. —to set malpractice apart from other tort claims from medical injury and to treat medical claims exactly manner —remain valid." 182 death same multiple at Wis. 2d court also noted separate claimants could maintain of action causes wrongful when death recover noneconomic setting approach Id. 13-14. The of occurs. at Rineck apart malpractice medical death cases from general wrongful apply. cases continued to See death Zirneski, also Dziadosz v. 177 Wis. 2d 59, 63, (Ct. 1993) Rineck). N.W.2d 828 App. (citing 65. Our holdings Rineck and Jelinek caused consternation within the medical community.7 Doctors lamented rising costs for health care in general and malpractice insurance in particular. See note 7, supra, and accompanying citations. They decried the Jelinek holding that available noneconomic damages for wrong- ful death caused by medical malpractice were far greater than available noneconomic damages for other types death. See id. In mid-1994 a Special Committee of the

Wisconsin Patients Compensation Fund recommended "that a cap $250,000 be imposed noneconomic damages," believing that such an amendment "would address an elemental and necessary change the tort system for resolving medical malpractice claims." Wis- consin Patients Fund, Compensation Report to the (1994). Joint Legislative Audit Committee 3 7 The health community care pressure exerted on the legislature put available in medical malpractice wrongful death claims back on the footing same as general wrongful See, death e.g., Testimony claims. relating to malpractice medical Assembly Committee on reform before Insurance, (Jan. 1995) Corporate Securities and Policy, 19, (statement by Farrow, Peter Executive Assistant to the Com Insurance) missioner (noting draining unsustainable effect of the unlimited caps on the Compensation Patients Fund); Letter Wegenke from Dr. John to Members of the Assembly Insurance, Corporate Securities and Policy Commit (Jan. 1995) tee (attacking distinction between caused malpractice medical wrong other forms of death); ful Roberts, Letter President, from Dr. Richard State Society, Medical to Members of the Senate Committee on the (Feb. Judiciary and the Senate Committee on Insurance 1 1995) (supporting legislation). reform legislature lim- the acted to restore In 1995 malpractice damages in medical its on noneconomic passed 10, Act which estab- It 1995 Wisconsin actions. $350,000 limit for noneconomic lished new simultaneously malpractice cre- in medical cases 893.55(4)(f). § Wis. Stat. ated (4)(f), course, to is central оur 68. Subsection damage analysis lim- it because addresses provides malpractice causes death. It its when medical "Notwithstanding the limits on noneconomic dam- ages subsection, recoverable under this providers wrongful against . . . death are health care 895.04(4)." (Emphasis subject to limit under s. added). 893.55(4)(f) was effect, In Wis. Stat. an- step legislature's pattern in the unbroken

other narrowing scope damages flowing of noneconomic malpractice in to control from medical claims order community's It addressed the medical concerns costs. by placing wake of Rineck and Jelinek medical footing wrongful malpractice death claims on the same wrongful did other death claims.8 It this referenc- as ing limit $150,000 in the death statute. up $150,000 to That statute allowed claimants non- Green, prin Representative records of Mark archival legislation that became Act cipal author of the 1995 reveal legislature's holding concern over our Jelinek that subject death actions were not general wrongful damage in the death statute. See limits Co., v. St. Fire & Ins. Wis. 2d Jelinek Paul Cas. (1994); Representative Mark N.W.2d 764 Undated notes (on Society). Repre Wisconsin State Historical Green file with restoring only refer sentative Green's archival records statute, creating in the not stackable limits caps. society

economic ship. Significantly, companion- for loss of 893.55(4)(f)

however, does not speak plaintiffs may to how much recover. It limits the "damages against providers." recoverable health care added). (Emphasis

¶ legislation, 70. At the time of the 1995 there were no limits at all on noneconomic for a wrongful resulting malpractice. death from medical legislature changed by incorporating The the law existing wrongful limit under the death statute. plausible why 71. There are several reasons legislature $150,000 substituted a limit for a $350,000 cap wrongful indexed in death cases. legislature may First, not have had an why

answer for the limit on death in a medical malpractice greater case was far than the limit on any other limit cases. The absence of damages wrong- on either economic or noneconomic for ful death in medical cases increased insur- premiums providers ance for health care and increased providers solvency assessments on to maintain of Compensation Legislative the Patients Fund. Audit Bureau, 01-11 "An Compensation Audit the Patients (June 2001). Fund" 15 The fact that the law was treating persons responsible for homicide intoxi- favorably cated use of a motor vehicle far more than it treating surgeons, pediatricians, was brain and emer- gency may requiring room doctors have been viewed as parity damage a move toward in the noneconomic limit death. private Representative Second, notes of principal legislation, Mark Green, author of the 1995 repeated make $250,000 references to the on medi- malpractice damages involving physicians working cal (as University Hospital at the of Wisconsin in Madison Representative employees). Green other well as state against Stat. 893.82 entitled "Claims alluded Wis. damages." employees; claim; limitation of notice state place purpose limit on the this section is to a One proceedings actions or civil amounts recoverable civil 893.82(l)(c). any against employee. Stat. In state following provisions: included 1995, the section (5m) recover regard With claim to (3) periods under subs. malpractice, time (4) days in- discovery shall be after . jury. .. (6) by any person entity for recoverable or amount death, any action or

any damages, injuries civil against employe a ... includ- proceeding civil state ... ing any proceeding based on such action or contribution $250,000. indemnification, pu- shall exceed No or not any may be or in nitive allowed recoverable added). (Emphasis such action. recognized Legislators may

¶ 74. have while against global cap all Stat. did not create a Wis. 893.82 cap providers, care it did both economic and health against single provider. noneconomic a legislature the was of this Third, 75. aware legislature court's decisions Rineck and Jelinek. The knowledge existing presumed of is to act with the case Dyken, 2d 290 N.W.2d law. Reiter v. 95 Wis. (1980). Rineck, a In the court concluded that minor society separate has a action for of child cause of loss companionship malpractice and when medical causes by parent the death of one and the decedent is survived spouse. his or her 2d at 661-62. court reasoned that: under ch. 655 originates child's] minor claim

[The general wrongful Chap- death statutes. rather than the injury death on controls all claims "for ter 655 655.007. As malpractice." of medical Section account by singling malpractice out medical previously, stated manner, intended to legislature a set claims such involving apart death from malpractice cases general other death cases which 895.04(2) Therefore, pre- applies. sec. does not statute maintaining a cause of action a minor child from vent society when medical companionship for loss of parent. the death of a malpractice causes at Id. pertinent Jelinek, In the court stated malpractice "In a medical action involv- as follows:

issue ing may January 1,1991, commenced after death that is patient who dies as a result of the minor children of malpractice separate causes of action for maintain patient society companionship when loss of brings by spouse a claim for loss a who also survived society companionship?" The court an- Id. at 5. "yes." claims The Jelinek case featured swered surviving spouse children, minor each of and three $50,000 for loss whom was awarded cap although society companionship, at that 895.04(4) only $50,000. Stat. was time Wis. at a time when was decided 77. The Jelinek case no on medical there was application

damages. cases after the result, its to As a completely legislation Nonetheless, clear. is not 1995 "argu- legislative professional that staff was the view applies ably, each cause of action $150,000 limit to the aggregate." individually, Memorandum Staff not Dyke, Rep. Senior Staff from Don to Mark Green (Sept. Attorney, Legislative Council Wisconsin 1997). supported by This view was the fact that legislation change by amending did not the law wrongful legislator death Thus, statute. a who adopted this view 1995 would have believed that the cap society companionship on loss of for two parents malprac- whose child died a result as of medical consisting potential $300,000, tice was $150,000 two Transposing post-1995 claims. the facts in to Jelinek claim, $600,000 Act 10 the limit would have been for a parent separate children, and three minor each with a claim. put legislation

¶ 78. These rationales the 1995 wrongful perspective. legislature again ¶ 79. In 1997 the acted to nar- Acting assumption row the funnel. holding on the our applied, legislature in Jelinek still added "per the words occurrence" to the death dam- 895.04(4). age cap in Wis. Stat. See 1997 Wis. Act 89.9 legislature phrase "per added the occurrence" to malprac- make it clear that "in death medical apply tice actions, the limit is a total limit and does not individually person may bring to each who an action for society companionship." loss of Memorandum from Dyke, Attorney, Legislative Don Senior Staff Wisconsin 1998) (on (Apr. Legis- Council 2 file with Wisconsin Council).10 lative "per The amendment to add the words occurrence" to Wis. 895.04(4) sponsored by Jauch,

Stat. was Senator Robert who closely worked Clausing with Senator Alice develop an acceptable compromise on 1997 Bill Senate 148. See Senate Amendment 1 to Senate Substitute Amendment 3 to 1997 Senate Bill 148.

10Because this alteration statute was enacted after claim, brought Maurins their parent separate each has a cause of action for death under the rule of Jelinek. because the necessary 80. The amendment was increased the on noneconomic legislature cap death of a alleging recoverable in actions $500,000.11 minor child to It raised the for the death cap 895.04(4) Id. See Wis. Stat. $350,000. to of an adult (1997-98). of an The to the legislature responded pleas Schultz, who argued: Barbara aggrieved parent, 11Although legislation capping the 1995 noneconomic dam community, ages groups the medical it infuriated mollified malpractice, especially parents representing victims of medical They legislators with letters who had lost children. bombarded of, or at phone asking calls for the elimination least an See, Wideman, in, e.g., Bereaved caps. increase the new Steve Post-Crescent, 8, 1997, Accountability, Sept. The Parents Seek Bl; Nichols, Lobby, Take on Medical The at John Two Moms Culhane, July 3, 1997; Shepherd Express, Ed Victims Mal Court, Post-Crescent, The June practice Day Demand Their 8,1997, groups ultimately of these resulted at B8. efforts "Justin-Lindsey Bill" referenced the concurrence. Con currence, groups legisla that the 1995 173. These believed $150,000 recovery restoring damage caps limited their to tion $350,000 $150,000 plus for medical —not See, e.g., from Barbara Schultz to Senator malpractice. Letter (Jan. 1997) (on Clausing file with Wisconsin State Alice ('With $150,000 making very Society) cap, it is it Historical Why? get court. Medical hard for cases to even very Attorneys turn down cases. expensive. cases are sometimes testimonies, usually is, experts are from The reason which Doctors, paid."). also must be stackable, caps were not

In another indication that thought" legis- pointed "scary out the that "the groups victims' $350,000 you if are negligence on medical put lators $150,000. it only In other words you and if are killed alive keep person alive.” Letter patient to kill a than to cheaper (un- representatives, from Barbara Schultz to senators dated) (on Society) (empha- file State Historical with Wisconsin added). sis way police profession any-

"There's no the medical said, more," pointing Schultz out that she can be sued up if patron's to million she a hair in her $1 salon, only $150,000 hair but doctors can be sued for in wrongful "They responsible a death case. should be as else," anyone as Schultz said. Wrongful Cap

"Families: Wisconsin Death Lawsuit is (undated), Wrong," County reprinted Dunn in News 1997). (Spring equity The Verdict at 16-17 Schultz's argument counterpoint served as an effectivе to the argument by community made the health care in the mid-1990s. improbable,

¶ 81. however, We think it is that the legislature adjusted wrongful cap would have death span years12 thought twice within a of three if it claimants had $350,000 access to the indexed medical damage 893.55(4)(d), malpractice cap plus in wrongful cap.13 $500,000/$350,000 12 legislation The 1995 restored the limit on noneconomic damages in malpractice wrongful medical death cases to (the 895.04(4)) $150,000 provided limit and the 1997 legislation increased the limit on (assum wrongful $500,000 medical malpractice death cases to ing malpractice the medical resulted in death of a child). minor

13 legislative committee, In a written statement to a Bar bara Schultz wrote: "Two children died in a medical death and [doctors] returned to work as usual. The families option. on the other hand do not have the same Our lives have $150,000 been shattered. Then find out cap we there is a on May 1995, death. In legislators put $350,000 negligence you medical if you are alive and if are $150,000. only killed In cheaper other words it is to kill a patient keep person scary than to that thought." alive. What a Letter from Barbara representatives, Schultz to senators and (undated) (on Society). file with Wisconsin State Historical

64 theory majority's single cap sup- ¶ is 82. The ported a series of court decisions. Chapter firmly

¶ that "It is now established remedy procedure and constitutes the exclusive Finnegan malpractice v.Patients medical Wisconsin." Comp. Fund, 98, 22, 574, 263 Wis. 2d 2003 WI (citing Czapinski, 316, 14; 2d 236 Wis. N.W.2d 797 Strykowski; 2d at Rineck, 665; 2d at 81 Wis. 155 Wis. Nierengarten, 2d 499; Ziulkowski v. Wis. (Ct. 1997)); App. Jelinek, 182 see also

565 N.W.2d 2d at 9. Chapter had 84. The Jelinek court said resulting claims from "set tort apart 2d at 11. This from other tort claims." 182 Wis. legitimate argu- complete to the otherwise the answer wrongful negligence claims death ment that claims separate of action. See Concur- are and distinct causes premise ¶ in Jelinek has been rence, 129. The stated malpractice pillar "If 1975. the medical law since change legislature common law as not intend to the did malpractice may that be recovered to the legisla- need for the have been no actions, there would provision." Kokemoor, 195 Wis. Lund v. enact the ture to (Ct. 1995). App. 736-37, 537 727, 2d N.W.2d principle applied ¶ this Lund v. Kokemoor 85. malpractice punitive from medical exclude Hegarty the it to establish Beauchaine used claims. v. claim for death limitations on a of malpractice. statute App 2d 300, 249 Wis. 2001 WI medical "wrongful that The court held 638 N.W.2d 355. malpractice are of medical that are the result claims § subject ¶ Id., 21. to 893.55." Czapinski passages in ¶ There are several 86. on the issue: bear 893.55(4)(f) language

[W]e § hold that the Stat. Wis. applicable malpractice makes to medical death cases only damages, the limit on incorporate does not wrongful death classification of claimants entitled to bring such an action.

236 Wis. 2d 2. ¶ Statutory language along legislative history with precedent legisla- lead us to hold that the intent of the ture applicable malpractice was to make to medical 895.04(4) only § death cases Stat. limit on damages.

Id., 13; see also 16-17. ¶ ¶¶ 893.55(4)(f) "damages language,

Wis. Stat. uses the subject recoverable. .. are to the limit under s. 895.04(4)." added). (Emphasis This shows that legislature intended malpractice to extend to medical damages. suits the death limit on Id., 21. The court noted that the repeated references ¶ 895.04(4) 893.55(4)(fO §to Wis. Stat. "connect 'limit' Id., to damages." Although Czapinski case involved a

question abоut the eligibility adult children or claim- ants for the death from regard to their mother, analysis court's accurately describes the operation of statutes. 88. We conclude that and effect of purpose 893.55(4)(f) §

Wis. Stat. was to limit the noneconomic damages against recoverable health care providers death in to malpractice cases 895.04(4). dollar § amount listed in Wis. Stat. The limit in the latter statute the limit in supersedes Wis. Stat. 893.55(4)(d) § that would have applied but for the shift to a different limit. aftermath of the 1995 In the immediate 895.04(4) § appears

legislation, to combine Wis. Stat. from medical the noneconomic society companionship and the loss relatively modest level from death at key compelling that However, the evidence is $150,000. any eligible legislators claimant under understood that separate § to make a 655.007 was entitled Wis. Stat. damages in accord with our claim for previously noted, the Jelinek As Rineck and decisions. knowledge legislature presumed of exist- is to act with Dyken, ing in "the As court said Reiter v. case law. this adoption legislative presumption of a or ratification judicial entitled to less of a statute is construction by weight construction is followed when the court's part legislature nearly complete inaction on respect construed," 95 2d at to the statute Wis. with strong legislature presumption is when 471, but the change specific responsive a construc- action takes Legislative private memoranda from the tion. The Rep. Green, Mark followed Council inserting "per legislature's occurrence" action the words 895.04(4) § the time the limits into Stat. at 895.04(4) persuasive that raised, were evidence 895.04(4) single cap legislature understood that the eligible multiplied by claimants, number of could be amendment. before limit on noneco- result, As a believe the we $300,000. case is

nomic this Constitutionality Wrongful B. of the Limit on Death Damages Arising Noneconomic Out of Medical Mal- practice. question

¶ 91. Wenow turn to the second certified regarding constitutionality of the limit on the recovery damages of noneconomic death 895.04(4). § contained in actions Wis. Stat. cap

¶ Above, we concluded that the on non- 895.04(4) damages economic under limits the total when the of a cause malpractice. practical death is medical In terms, the global cap on total noneconomic intended legislature malpractice when medical causes death limits both death and medical simultaneously. parents argue do not it is malpractice damages. unconstitutional although Guzman, See 2d Thus, Wis. we slightly address it in a context, different the certified question cap wrongful —whether 895.04(4) under is constitutional —is still relevant. constitutionality ques 93. The of a statute ais Aicher, tion of law that we review de novo. 237 Wis. 2d (citing ¶ Broekhuizen, Riccitelli v. 227 Wis. 2d (1999)). 100, 119, 595 N.W.2d Because statutes embody political economic, social, decisions legislature, strong entrusted to the we afford statutes a presumption constitutionality. (citing Id., State Emery, ex rel. Carnation Milk Prods. Co. v. 178 (1922)). Accordingly, uphold 147, 160, 189 N.W.564 we constitutionality party of a statute unless the chal- lenging that it unconstitu- the statute demonstrates beyond Id., a reasonable doubt. 19.14 tional many years, legislature [has] made ¶ For "the 94. regarding judgment maximum what deliberate by of for the loss could be awarded statute amount society companionship." 411, 236 2d Neiman Wis. op- provides present ¶ this court an The action 26.15 authority legislature's portunity to either validate the understanding long оf in or shatter the held this area legislative power. by arguments presented

¶ The 95. constitutional constitutionality cap challenge parents the of the they cap respects. nullifies First, assert that four right jury have a assess constitutional state they § I, Second, 5. under Const. Art. Wis. 895.04(4)'s separation cap violates that contend powers principles by blurring boundaries between they judicial legislative Third, branches. assert 895.04(4) by § consti- dictated violate the classifications par- guarantees. Finally, equal protection tutional rights posit that their constitutional substantive ents process of an the creation have been violated due 14 Inc., 21, App Hospital, Francis 2001 WI In Guzman v. St. an 776, provides the court 559, 240 2d N.W.2d Wis. 623 meaning insightful discussion of the valuable and exceptionally Id., 4 n.3. this origin formulation. 15 83, Co., Cas. 2000 WI Prop. Am. & See Neiman v. Nat. has 411, legislature n.6, Wis. 2d 613 N.W.2d 26 236 many death on statutory cap wrongful in a claim increased 1959; 1949; 194, 1, 548, ch. Laws ch. Laws Wis. Wis. occasions: 166, 287, 1975; ch. Wis. 436, 1969; ch. Laws ch. Laws Wis. Wis. 308; 315; Act 1997 Wis. Act 1979; 1983 Act 1991 Wis. Wis. Laws arbitrary, capricious, cap. and unreasonable Each of arguments these will be addressed in turn.16 $300,000 The concurrence concludes that the limitation recognized we Yet, have case is this unconstitutional. Natwick, 125, 19, Schultz v. 2d WI Wis. 653 N.W.2d 266, rejected $500,000 this application court the retroactive of a wrongful cap death, thereby limiting plaintiffs to a $150,000. recovery "harsh," The court considered the result 2d $150,000 but there was no hint that the cap was unconstitutional. internally

The concurrence is inconsistent. The concur- limitation, rence that the death insists like a claim, separate death is distinct and from the limitation on malpractice. If accept we this premise, we effect would examine the in isolation. The concurrence assumes that the limitation for wrongful $150,000. death is jury The awarded the parents by million. Consequently, reducing the $2.5 award from $150,000, $2.5 million to $2,350,000, the overall reduction is or percent. holding, damage Under our the award is reduced $3,050,000 ($2,500,000 $550,000) from $300,000, + to a reduc- percent. analysis, tion of 90.2 Given its it is not clear how the uphold $150,000 isolation, concurrence could in and it is not itwhy percent clear a supports eschews 90.2 reduction but a percent concurrence, nothing reduction. In the is clear about what limits are constitutional what limits are not. highly subjective

This sort of analysis contrary runs to established procedure. "Courts are not equipped empowered investigations to make into the financial resources of various public Wisconsin; coverage, bodies policy limits and costs liability insurance; of available or the number of victims of... profile a they tortfeasors and of the losses have suffered." 844, Stanhope County, v.Brown Wis. 2d 280 N.W.2d711 (1979). in Stanhope say The court was to "unwilling that the legislature has no rational basis to fear that full monetary responsibility entails insolvency the risk of or intolerable tax burdens," at id. but the concurrence apparently willing say to that there is no rational basis here. Jury by

1. Trial I, 96. Article Section 5 Wisconsin Consti- part right by jury "[t]he provides in that of trial tution inviolate, to all at remain and shall extend cases shall controversy." regard to the amount law without 895.04(4) According parents, Wis. in- to the Stat. right nullifying jury's damage- fringes upon by this finding parents correctly point out that function. right by jury right to includes the to have "a trial including jury fact, that of trial on all issues of dam- Jennings Safeguard ages." Co., 13 v. Ins. 2d See (1961). 427, 431, 109 N.W.2d develop interesting, though parents an 97. The argument. They ultimately irrelevant, assert historical statutory are not creations death actions that therеby giving right law, existed common but at jury im- actions constitutional trial death right primatur. if a Yet, even we assume constitutional arising jury law trial out of the common status right actions,17 has not been de- prived in this case. parents' can no claim that 98. There be directly right jury to a trial was

constitutional infringed was tried to a in this case because case damages. jury jury, and the in fact decided the issue 17 is an that existed at Even if death action law, legislature from preclude would not the common this Const, § 13. Article law. See Wis. altering the art. common XIVJ "in law force" at provides section 13 the common XIY until part of law of this state "shall be and continue statehood words, legislature." In other suspended altered or legislature to alter or sus Constitution allows Wisconsin on the law. pend claims based common

71 argument parents' upon Rather an relies attenu- "infringement." by reining view, ated In their in the jury's damages, legislature discretion to award has impermissibly trampled upon jury's sacred domain. "[e]ven However, a when defendant has right by jury right to trial he has no vested to the may right manner or time in which that be exercised." Murphy Voss, ex 501, State rel. v. 34 2d 509, Wis. 149 (1967) (citing Brittich, N.W.2d595 State rel. v. ex Sowle (1959)). 353, 7 2d 96 N.W.2d 337 As the court of appeals ably explained case, in the I, Guzman Article distinguishes Section 5 of the Wisconsin Constitution respective judge jury. Guzman, roles of 240 Wis. legislative preroga 559, 2d 10. It does not curtail the temporally, Aicher, tive to limit actions see 2dWis. monetarily, Guzman, see Wis. 2d 559. The appro on noneconomic anis priate "legislature's judgment... exercise of the best as damages fully compen to what maximum amount of society companionship." Neiman, sates of loss 2dWis. 26.18 parents question have not briefed the whether the I, on § limitation death claims violates Art. 9 of the heavily Wisconsin Constitution. The concurrence relies on this section, repainting an attempt old train in an to lure new I, passengers. 9, singly Article or in combination with Article I, 5,§ does legislature making rationally-based not bar the from of determinations about causes action related to health care in Wisconsin. Limitations on noneconomic not wholly are different from prohibitions punitive damages, periods claims, I, limitation on and restrictions on claimants. Article 9, "though great importance jurisprudence, prima our rily right persons addressed to the have access to the courts justice and to obtain on the basis of the law as it in fact exists. legislative suspension find that do not 100. We infringes beyond certain limit a of above jury right upon when, in to a trial the liability jury and assesses determines actions, a still damages. parents that have failed to demonstrate The 895.04(4) or constitutional our federal state violates beyond provisions doubt. a reasonable Separation of Powers 2. position parents the that also advance by enacting judicial power legislature has seized

the judicial power legislation of remittitur the that curtails parents the on contend that additur. The damages in death cases has damages. judicial power superseded add or remit the judicial power. usurped legislature has result, As 895.04(4) assessing cap in In whether powers separation task case, our first this violates alleged usurpation invades to determine whether is judicial power or whether branch a core Flynn Dep't by power v. See one shared branches. is 521, 545-46, 2d 576 N.W.2d Admin., 216 Wis. (1998). power power branch, then of one is a core If the power. upon may If, Id. intrude not other branches power one that is shared hand, the other may among not one branch branches, then or between substantially unduly other with the interfere burden power. understand Id. As we of that exercise branch's the constitu portion conferred this legal rights are No 173, 189, 290 2d Corp., 95 Wis. v. Acme-Cleveland tion." Mulder (1980). enlarge a I, § be used to Article 9 cannot N.W.2d of action. restricted cause parents' argument, remittitur and additur are core

judicial powers. disagree. We creating, limiting,

¶ 103. When it comes to suspending legislature action, causes of shares power judiciary. e.g., with the See Wisconsin Stat. ch. (Worker's Act); Compensation Borgnis

102 Co., v. Falk (1911). 147 327, Wis. 133 N.W.209 Wehave noted in the past legislature specifically that the authorized to act in the context of Rineck, death. See 155 Wis. ("As 2d at an 669 element of common law, the doctrine permitting recovery society companion for loss of ship initially developed by was created and courts of Thus, law. . . . this is an area where either this court or added)). legislature may (emphasis act." The legislature's authority power flows from its to alter or suspend XTV(§ the common law. 13; Wis. Const. Art. see Picotte, ¶ also State v. WI 42, 10, 2003 261 Wis. 2d Accordingly, appropriate separa 381. N.W.2d powers inquiry legislature tion of is whether the has unduly substantially judi burdened or interfered with power. cial

¶ 104. The limit on noneconomic prevent death does not a circuit court from exercising powers of remittitur and additur. See (holding despite Guzman, 2d 559, that on noneconomic in cases, "a trial court retains the discretion ... to order a remittitur"). all, In the burden on the court's remittitur powers and additur is minimal and is insufficient to separation demonstrate that the statute violates the powers beyond a reasonable doubt. Equal Protection

3. 895.04(4) parents argue violates scrutiny protection equal a standard and under strict matter, note basis test. As an initial we under a rational scrutiny appropriate in this context. is not that strict scrutiny implicates applies a if the statute fun- Strict people right or creates a non-favored class of damental personal characteristics or have immutable who have pattern experienced of discrimination historical powerlessness. Czapinski, political 2dWis. Capping right possessed by any not fundamental does violate 895.04(4) deny parents. does not claimants Section opportunity jury or an for a trial to access to the courts damages. wrongful Neither does the recover death per- on immutable create classifications based statute history or a of discrimination sonal characteristics powerlessness. political equal protec parents

¶ Thus, we review 106. challenge A the rational basis test. statute under tion legislature's "if the distinc held constitutional will be rationally persons among groups to a of related tion Doering legitimate government purpose." v. WEA Ins. (1995). Group, 131, 432 118, 2d 532 N.W.2d 193 Wis. Conversely, held unconstitutional a statute will be if the statute is shown to under the rational basis test relationship arbitrary" "patently rational with "no be legitimate government H., State v. Dennis interest." a 359; 851 32; 255 2d 647 N.W.2d Wis. WI (quoting McManus, 113, 131, 2d v. 152 Wis. State (1989)). N.W.2d legislative First, 107. we set forth the classifica- 895.04(4). §by Doering,

tion created 2d at damages cap wrongful The noneconomic death that die creates two classes victims—those and those that survive—and two classes of tortfeasors —those whose actions cause death and those whose actions do not cause death. These classifications are not irrational. they produce varying fact, In cap results relation to wrongful death, on noneconomic de- pending upon the circumstances. identify objectives cap Next, we damages.19

on noneconomic death Id. The on noneconomic under 895.04(4) implemented assuage was fears "that passion high wrongdoer would run where the causes huge damage imposed death and that would awards be wrongdoer." Wangen Co., on the v. Ford Motor 97 Wis. (1980). 260, 314, 2d 294 N.W.2d 437 The Wisconsin legislature taking concluded, after into account eco political Aicher, nomic, social, considerations, see equitable system ¶99, 237 Wis. 2d that a fair and only not considers victim's survivors but also the system overall cost of death awards on the providers people health care is vital to the Wisconsin. This determination is buttressed legislative findings presented Appendix. in the legislature objective pursued legitimate has in its quest important to balance considerations.

19 objective legislative supporting We note that wrongful existence of a death provide cause of action is to "compensation designated beneficiaries their loss of ‍‌‌‌​​​​​‌‌‌​​‌‌‌‌​​​​‌​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‍Kelley, Harris v. person." relational interest with deceased (1975) Wurtzinger v. 242, 253, (citing 70 Wis. 2d 234 N.W.2d 628 Jacobs, (1967)). 703, 33 2dWis. 148 N.W.2d 86 76 Finally, legislative ¶ we consider whether rationally is related to the achievement classification objective. Doering, appropriate legislative 193 Wis. an capping noneconomic instance, In this 2d at 137-38. undeniably related to the death legislative objective sought legitimate to be accom- cap. plished hard to a more Indeed, it is conceive damage assuaging huge the fear of rational means of reining case of a in insurance costs awards by limiting noneconomic victim's death than damages. presumption of death Given the constitution- ality, run afoul of our federal and this statute does not beyond equal protection guarantees a reasonable state doubt. Due Process

4. Substantive argue Finally, parents ¶ that the federal and state violates arbitrary, capri process, it is due because substantive Radke, 7, 2003 WI See State v. cious, and unreasonable. 66. The Fourteenth 12, 13, 259 Wis. 2d 657 N.W.2d and art. the United States Constitution Amendment to coextensively guar Constitution I, 1 of the Wisconsin process Dowhower v. West Bend of law. See antee due Co., 113, 2d 12, 236 Wis. Mutual Ins. 2000 WI just process than more 557. Due constitutes N.W.2d guarantee encompasses process, sub but also of fair government protections ac that bar "certain stantive procedures regardless used fairness of the tions County (quoting implement Id., them." (1998)). Lewis, U.S. v. Sacramento parents years, that, 111. The claim over legislature changed cap in has a random and arbitrary According parents, "[t]hese manner. to the cap continual amendments show that the has no basis completely arbitrary." Certainly legis- in fact and is adjusted cap lature has on noneconomic damages death from time to time. not lead This does inexorably changes to the conclusion that such did not legislature's judgment. peri- reflect the considered The changes by cap parents suggest odic to the noted legislative thoughtfulness, arbitrary attention and not legislature's equitable action. It is the role to seek an compensation, level of and occasional reassessment and wrongful damages alteration of the on noneconomic legislature's attempts demonstrates the to reach that goal.

¶ 112. We conclude that the on limit malpractice wrongful death, for medical as set 895.04(4), out Wis. Stat. not unconstitutional. C. Remittitur jury Shay $550,000 113. The awarded pre-death pain suffering.

Maurin's estate for her The circuit court remitted $100,000. this amount to parties dispute erroneously whether the court exercised its discretion. jury parents

¶ 114. The also awarded the $2,500,00 as for their loss of society companionship. This amount must be re- comply $300,000 duced to with the limit set out in 895.04(4). Wis. Stat.

¶ 115. decision, Under our the total amount of parents allowable noneconomic for the Consequently, $300,000. the estate is whether by $550,000 estate's verdict of is reduced to $381,428 bearing $100,000 law remittitur will no have Consequently, the ultimate award. we decline to review the issue.

CONCLUSION uphold constitutionality ¶ 116. We of the non- 895.04(4) damage economic limit in Stat. as the limit on total noneconomic recoverable from providers malpractice wrongful health care in a medical death case. This limit combines the available for medical and death. In this explained case, decision, for the reasons in our plaintiffs recovery are $300,000. entitled to Accord- ingly, the decision of the circuit court is reversed and the cause remanded for action consistent with this decision.

By judgment the Court.—The of the circuit court is reversed and the remanded to the cause is circuit court proceedings opinion. consistent with this

APPENDIX (1) Legislative legislature findings. Section 1. The finds that:

(a) The number and claims for of suits arising patient professional from care has increased tremendously years past several and the size of judgments and settlements in connection therewith has substantially; increased even more (b) settlements, judgments The effect of such newly legal frequently emerging precedents, based industry uniformly has been to cause insurance substantially limit increase the cost and the avail- ability professional liability coverage; insurance

(c) being costs are These increased insurance charges patients higher in the form of passed on to facilities; health care services (d) providing care The increased costs of health services, the increased incidents of claims suits against providers health care and the size of such many liability insur- judgments claims and has caused completely from the insur- companies ance to withdraw ing providers; health care

(e) rising forcing and claims is number of suits providers and institutional health care both individual defensively, to the detriment of the health practice patient; provider care and the (f) impact As a result of the current of such suits claims, providers required, health care are often diagnostic protection, employ their own extensive thereby increasing procedures patients, for their the care; patient cost of

(g) As another effect of the increase of such suits thereof, providers health and claims and the costs care may provide are reluctant to and decline to certain might in helpful, health care services which be but patient injury; themselves entail some risk of (h) difficulty obtaining The and the insur- cost discourages and providers ance for health care has discouraged young physicians entering from into the state; practice of medicine in this (i) obtain, Inability high cost of obtain- ing, likely such insurance has affected and is to further hospital affect medical and services available this patients, public state to the detriment of and health providers; care

(j) providers Some health care have curtailed or ceased, may cease, practices or further curtail or their nonavailability because of the high cost of profes- liability sional insurance; and

(k) It appears therefore the entire effect of such suits and working claims is to the detriment of the provider, health care patient public general.

§ 1, ch. Laws of 1975.

¶ 117. SHIRLEY S. ABRAHAMSON, C.J., and N. (concurring). statutory PATRICK CROOKS,J. This ais interpretation case that affects entire health care community everyone in the state because we all patients. plaintiffs have been or will be and amicus urge interpretation one statutes; the defendants urge majority opinion adopts and amicus another. The neither. majority Rather, has heard a different adopting interpretation

drumbeat and it, follows an totally any argued the statutes different from or briefed appeals. here or in the court of justices proceed

¶ 119. Some to make decisions arguments by parties. without benefit of or briefs prefer justices apparently Others more restraint. Some perceive sponte that the rule of law is advanced a sua approach. doWe not.

¶ 120. This case should not be decided without asking parties majority opinion's the to brief the novel interpretation reargue of the statutes and to the case. urge majority supplemental We the to seek briefs from parties promulgating interpretation the before its novel generally of the statutes. The rule of law is best 81 by fire of adver- developed the are tested matters when arguments.1 oral sarial briefs "preference emphasized its has 121. This court might they aid the requesting briefs whenever "statutory interpre- acknowledged that has court"2 and usually be should courts in which the is an area tation willing they delay have until determination their sponte court's sua Indeed, a briefs."3 assistance may process consid- raise due an issue determination parties may depriving of their A court be erations: 1 is that adversary process premise "The fundamental useful informa present more uncover and will these advocates be maker than would decision to the arguments tion and inquisi in an acting his own by judicial officer developed Smith, Playing Michael R. A. Milani & system." Adam torial by Appellate Decisions Sponte Look at Sua A Critical God: (2002) (citing States v. Courts, 245, United Rev. 69 Tenn. L. (1993) (Scalia, J., concurring)). Burke, U.S. 1063, 1073, DHSS, 501 N.W.2d 2d v. 176 Wis. 2 Bartus (1993). 3 Id. Vestal, Sponte Consideration Allan D. Sua See also (1958-59): Review, 493-94 L. Rev. 27 Ford.

Appellate sponte for the appellate a matter sua considers court When given an litigants not been have time it means that first urge arguments support opportunity the matter to consider reviewing by If the position adopted court. against possibility that other is at least a question had been raised there might might presented which have been facts or other authorities oppor- But this changed on the matter. the court's attitude have losing tunity given party. is not by completely parties sponte are taken sua both When considered urged by grounds not matter on surprise the court decides the matter, any opportunity to consider had either. Neither has judicata grounded on consider- res are now bound and both positions for the liti- represent reasoned not well ations which wayward court. only decision of a gants, the fortuitous but rather meaningful right appeal, process to a to due notice, and adversary If counsel.4 there ever was a case that cried parties out for briefs from adversarial to assist the statutory interpretation сourt, this case it. We are at why majority a loss to understand the refuses to call for additional briefs. majority opinion interpre-

¶ 122. The its derives (in together piecing tation of the statutes a convo- manner) statutory parts texts, luted selected of the the statutory history, legisla- "crisis," (includ- history tive of enacted laws and defeated bills private ing legislator communications between staff), arguments proponents opponents in lob- bying interpreting bills, and case law earlier stat- utes. rely argument

¶ 123. on We the briefs and oral statutory interpretation proper our discussion of the Notwithstanding briefing and remittitur. the lack of constitutionality majority's interpre- issue the novel recognizing majority, raises, and we, tation that like the by hearing litigants, would benefit from the we never- explore unconstitutionality majority's theless interpretation using novel the information we now have. agree majority opinion

¶ 124. We with the that judgment circuit court must be reversed and remanded. majority opinion

¶ 125. The and this concurrence vigorously disagree interpretation about applicable remand, On statutes. defendants' liabil- Idaho, 110, 120, v. 111 S. Ct. U.S. Cf. Lankford (1991) (invalidating grounds a death penalty process on due judge only person because "the silent was the in the courtroom they knew that the real issue should [counsel] who have death"). debating been the choice life and was between recovery significantly ity plaintiffs' differ- are and the majority opinion and this concurrence. ent under the opinion majority ¶ this concurrence 126. The and damages in medical limits focus on the on resulting malpractice and actions in death the society companionship death of and loss capped are not in medical Economic actions. pecuniary malpractice not and are actions5 capped do not actions.6 We therefore death damages. focus on these present

¶ the as fol- We concurrence 127. legal flaw first the fundamental lows: We discuss reasoning analyze underlying majority's and the the light majority's statutory interpretation in flaw. of this interpretation forth our own of the stat- We then set interpretation utes, that coincides with that of the an Finally, majority's plaintiffs. inter- we conclude that pretation of the statutes is unconstitutional and of was an exercise discretion. remittitur erroneous

r-H pervades legal A fundamental flaw majority's interpretation of Wisconsin's medi- concocted perme- statutes. It cal death majority's ates and distorts the view statutes. 5 Majority op., 895.04(4). Stat. 129. The flaw: The majority opinion fails recognize simple yet well-established distinction between survival action an action for wrongful death.7 This distinction has been recognized repeatedly in Wisconsin.8 law, upon person injured by At common the death of a the fault another, any brought injury any right of action for the brought any injury right action for the of action therefor died By person. adopted states, with the statutes in most this rule has changed, injuries up

been and the action for sustained until the may by personal time be representative. maintained These are known as Acts. Survival By rule, family another common-law neither the members of the injured person personal representatives any nor his had cause of action for the loss occasioned his death. This also has been states, statutes, changed, by in upon all the are modeled which Campbell's adopted England 1846, Lord Act in in and are known as Death Acts. (1935). McCormick, Damages Charles T. 8 335 Co., Wangen 260, 294, 312, v. Ford Motor 2d 97 Wis. (estate's (1980) suffering N.W.2d 437 award a pain for child's and recovery beneficiaries' wrongful for death not a "is double recovery, recovery wrong"); but a for a double Estate Merrill of Jerrick, ex 546, 549, rel. 231 Mortenson v. Wis. 2d 605 N.W.2d (Ct. 1999) ("A App. survival action is a distinct from action."); Luther, wrongful death Miller v. 170 Wis. 2d (Ct. 1992) ("A 435-36, App. wrongful N.W.2d death action is a cause action the designated of for benefit of certain surviving relatives, enabling by classes of them statute to damages by wrongful recover their own caused the death of the decedent... It not an is action that survives the decedent's death; a brought statutory it is new for action the benefit of the beneficiaries."); Indus., Inc., Jaeger v. Raymark 610 F. Supp. (E.D. 1985) ("The wrong survival action and the ful death action are distinct under The Wisconsin law. survival brought by injury action the is decedent's estate for the to the decedent; wrongful belongs death action to the named a Let illustrate the distinction. When 130. us pre-death for noneconomic dies, claims are

victim some pain by (e.g., damages and suffer- the victim suffered damages pre-death ing) are for noneconomic and others (e.g., family members of the victim suffered spouse's consortium). generally re- These are of loss ferred to survival actions.9 as post-death inju- contrast, In for wrong- wrongful fall death statute. ries within damages to loss death limits noneconomic ful statute damages. caps society companionship and these encompass types Wrongful not other death claims do damages.10 ordinary actions, the victim and In tort damages, family and the unlimited "survival" recover compan- capped society family "loss of recovers the ionship" damages.11 majority opinion, according

¶ 133. Yet to the results, death both medical types actions when damages, death survival wrong- cap damages, forth are limited set though death ful death statute even only damages society loss of addresses statute light surprising companionship.12 This conclusion majority point can to no evidence of the fact that the any anywhere anyone has inter- to show that at time preted to encom- injury. begins where '[T]he for their latter action beneficiaries (citations omitted)). the former ends'" 9 See, e.g., The Law Torts Dobbs, § Wis 2 Dan B. 295. of JI —Civil 895.04(4). § Wis. Stat. 11Id. op., Majority pass anything damages society else besides for loss of legislative companionship. and The whole focus of ac- tivity recovery society of was limit for loss and companionship, recovery not to limit other noneco- damages nomic suffered in death medical Furthermore, cases. the neither text of the majority opinion parties statute nor instructs the or courts on how to allocate when, noneconomic case, as in this noneconomic for the survival wrong- action death action exceed the society companionship, ful death on loss or comparative negligence applies type how each action.13 majority argues plain

¶ 134. The words interpretation legislative of the statute and its history compel legal principle it to override this basic differentiating between survival actions and legis- However, death actions. neither the text nor the history legislative objective lative nor the nor the case strange reading. compels law this example, majority ¶ 135. For cites the follow- ing statutory 893.55(4)(b), § language in Wis. Stat. emphasizing death," "or "total," and "for each occur- support theory: rence" of its The total bodily recoverable for death, or injury any proceeding or including action indemnification, on may based contribution or not (d) each occurrence par. exceed limit under May 25, 1995, providers after from all health care all employees providers acting of health care within 893.55(5) Compare Wis. Stat. Wis. Stat. 895.04(7). providing health care employment of their

scope patients negligent and from who are found services compensation fund.14 majority

¶ concludes that the words 136. The legisla- reveal that the "total" and "for each occurrence" single recovery or for each incident ture intended a involving malpractice.15 Further- "occurrence" majority that the words "or death" more, concludes single provide legislature a intended to show that malpractice recovery in when the medical resulted even wrongful death.16 a majority astray goes equates when it The wrongful of action for "death" with cause word "bodily interpreted case, the court

death. In the Rineck 893.55(4)(b).17 § injury The court death" in Wis. Stat. application no death statute had held that the then the statutes were to medical as "bodily injury The or death" drafted. § words 893.55(4)(b) only words that could be con- were malpractice personal applying to medical strued as injury actions, actions, and survival actions. "bodily injury or death" in Wis. 138. The words 893.55(4)(b) interpreted light § have

Stat. to be 893.55(4)(f), relating § death. of addition 893.55(4)(f) § probably prompted was addition 893.55(4)(f) § adoption the Rineck decision. The word "death" was meant to undo Rineck so 893.55(4)(b) longer no references a cause Wis. Stat. 893.55(4)(b). Stat. Wis. 15Majority op., 16Id. Johnson, 2d v. 456 N.W.2d Rineck (1990). "wrongful adoption action death." As a result of the 893.55(4)(b) 893.55(4)(f), § § governs cap of for malpractice damages in noneconomic medical actions 895.04(4) governs § except that loss of society companionship malpractice and in medical wrongful death actions. "wrongful fact, In when the term death" is 893.55(4)(f), § applicable

used Wis. Stat. statu- tory language states that the limits contained in Wis. 893.55(4) (the § malpractice cap) Stat. do not 893.55(4)(f) apply. Section reads as follows: Notwithstanding damages the limits on noneconomic 893.55(4)], damages [§ under this subsection recover- against providers able care wrongful health ... for subject are death to the limit under 895.04(4)(empha- s. added).18 sis majority argues interpret ¶ 140. The we that "notwithstanding" word to mean "in addition to" instead spite contrary, of "in of."19 To the Nonsense! we read the spite statute as In set follows: limits forth in Wis. 893.55(4) § relating damages Stat. to noneconomic (statutorily long defined to include a list of noneco- damages),20damages against nomic recoverable health providers wrongful death, is, care that for loss of for society companionship, subject and are to the limit §893.55(4)(f). Wis. Stat. 19Majority op., ¶ 36. 893.55(4)(a) § Wisconsin Stat. states: subsection, damages" moneys this In "noneconomic means in- pain humiliation; compensate suffering;

tended to for embar- rassment; distress; worry; disability mental noneconomic of effects activities, including enjoyment loss of of the normal benefits and health, pleasures physical being of mental life and loss of or well— consortium, bodily functions; society companionship; loss of or loss of love and affection. 895.04(4). damages only § for under society damages for loss of death are companionship. para- majority rewrites contrast, In (4)(f) §

graph that 893.55 to state when Wis. Stat. malpractice, limit on all caused medical death is 893.55(4)(a) § no defined in is nonеconomic longer governed by 893.55(4); all noneco- instead are limited to in medical nomic society the limit set forth the loss whatever companionship death But course actions. says. of the statute is not what the text 893.55(4)(f) specifically ¶ 142. Wisconsin Stat. (the only such identifies being society compan- damages damages for and loss wrongful ionship) and toward death directs us that damages applicable to the limits statute determine wrongful read, death. The statute does not as the for majority read, it in the event of would have that wrongful patient's death, forth in the death the set society applies companionship and to for loss of statute damages malprac- listed in medical all noneconomic provide, legislature If to so statute. intended tice simply read as would have been drafted to the statute "Notwithstanding limits on noneconomic follows: damages subsection, under in the event of the this malpractice, patient all death of a caused medical damages against health care noneconomic providers recoverable subject . the limit under s. .. would be 895.04(4)." opinion distinguish majority fails damages" broadly phrase "noneconomic

between (Wis. Stat. defined the medical statute 893.55(4)(a)) society damages § for loss of and and damages only companionship, recov- majority opinion erable in death actions. The just ignores the difference and conflates the two.21 majority opinion spite 144. The does this in prefatory the fact that the note to the bill that created 893.55(4)(f) (an explanatory plain Wis. Stat. note in language required by printed statute to be and to introduced)22 accompany explains a bill when that society companionship claims for loss of in medical malpractice wrongful death would be treated in the same involving manner as claims other civil actions meaning death, society that the award would be for loss of companionship: The bill limits society loss for companionship may that be recoverable in medical malpractice cases involving $150,000 death to the maxi- established currently mum other civil actions in- added).23 volving (emphasis ¶ 145. We should assume that a subsection that specifically references death, as does Wis. § 893.55(4)(f), govern Stat. should how society death, is, that for loss of companionship, regard spe- are calculated with to that irrespective cific action, cause of of the limits on other 893.55(4). causes of action contained in And this is certainly preemptory language the case when such as "notwithstanding" separate statutory is used to provision from the rest of subsection, as is the case here. majority

¶ significant 146. The also finds it that society companionship" "loss of and is contained in 21 See, e.g., majority op., 22 13.92(l)(b)2. § Wis. Stat. 23Legislative Analysis Reference Bureau Assembly of 1995 Bill 36.

91 in Wis. set forth noneconomic definition 893.55(4)(a), quoted § concur- note 20 of this at Stat. recognize majority a that fails to However, the rence. society companionship and for loss of action cause patient period in a of time which can be raised refer incapacitated does not death and before was companion- society exclusively post-death and loss of wrongful in death ship, covered that are compan- society loss For actions.24 specific ionship death, more statute in govern 893.55(4)(f), § that statute should Wis. Stat. of) (that any provision notwithstanding spite inis, here, 893.55(4) governing other Stat. Wis. contained damages.25 majority's rec- failure to fundamental The ognize survival actions between the distinction interpre- permeates its also actions majority argues history. legislative tation 893.55(4)(f), legisla- enacting Stat. Jelinek,27 reacting Rineck26 to our decisions ture, merely place intended 24 (loss includes of consortium 1815 See Wis JI —Civil & Fitzgerald v. Meissner society"); see also "companionship and (1968). Inc., 571, Hicks, 157 N.W.2d 595 38 Wis. 2d 25 21, Endicott, 105, Hensley v. 2001 WI ex rel. See State (citing v. State 607, 627, 686 Martineau 2d 629 N.W.2d 245 Wis. Comm'n, 443, 449, 206 2d 175 N.W.2d 46 Wis. Conservation (that (1970)) "is general a statute controls over specific statute enacted after the specific statute is true especially when statute"). general Johnson, 2d 456 N.W.2d v. 155 Wis. Rineck (1990). Co., 2d & Cas. Ins. 182 Wis. v. St. Paul Fire Jelinek (1994).

N.W.2d 764 footing" wrongful other claims "on the same as death agree majority. Absolutely. We with death claims.28 majority's interpreta- Ironically ¶ own very legis- is inconsistent with the tion of the statutes majority majority proffers.29 purpose The lative legislature's attempt parity opinion to attain defeats generally wrongful in tort death claims cases between malpractice wrongful in medical death claims cases. majority's interpretation, 149. Under the society companion-

wrongful cap for loss of death malpractice cap supersedes ship for all the medical Wrongful damages patient if the dies. noneconomic limited are forced to share their death claimants recovery thus damages entitled to recover under with those wrongful in sense, In death claims actions. this survival malpractice foot- actions are not "on the same medical ing" wrongful in other tort death claims as other in for death claimants actions. Recoveries severely malpractice more limited. cases are medical apparent before the case 150. This result is relinquish today. parents either forced to will be us award death award or the estate's their full suffering pain pre-death the total because though recovery $300,000, even for all exceeds caps specifically states that the the statute (loss society companionship) 895.04(4) notwithstanding Stat. are set forth Wis. 893.55(4).30 limits contained Wis. Stat. 28Majority op., 29Id. adopt: we Parity interpretation in the is attained death, except involving

In tort actions limited; are not actions, pre-death majority's ¶ 151. The reliance on case law also majority opinion snips falls well short of the mark. The language quotes pas- from various court decisions and sages support theory.31 out context to its It starts inapplicable Jelinek,32 with which is to our case because caps malprac- it was decided when no existed in medical 893.55(4)(f) tice cases and before Wis. Stat. was en- acted. majority language

¶ 152. The then lifts from Lund v. Kokemoor.33But Lund had to do with whether punitive damages malprac- were recoverable medical language tice lawsuits. The lifted from Lund is of no value here. majority Hegarty

¶ 153. The cites v. Beauchaine34 support theory. Hegarty inapplicable, of its is how- dispute ever, because it involved a over which statute of applied malpractice limitations ing wrongful in a medical case involv- provision

death. Since there is no similar 893.55(4)(f) directing away to Wis. Stat. us from the malpractice medical statute order to determine the wrongful damages death damages are limited to for loss of society companionship $150,000. capped at

In malpractice actions, tort pre-death damages capped $350,000; are wrongful at death are limited society to for loss of and companionship and $150,000. capped at 31Majority op., 83-87. ¶¶ 32 Co., 1, Jelinek v. St. Paul Fire & Cas. Ins. 182 2dWis. 512 (1994). N.W.2d 764 Kokemoor, (Ct. Lund v. 195 Wis. 2d N.W.2d 1995). App. Beauchaine, Hegarty v. App 2001 WI 249 Wis. 2d 142, 638 N.W.2d 355. malprac- appropriate in a medical statute of limitations Hegarty death, decision also tice action of no value here. is Finally, majority's Czapin- reliance on Czapinski merely misplaced. all, is First of

ski35 also cap applicable acknowledges death is that the says nothing malpractice cases, and about to medical cap applies. Czapinski had to do with deter- how the mining eligible bring of action for was a cause who case, in a medical and not claimants could the amount of those with Czapinski here. Thus, also is of no value recover. rely authority prefer on 155. We passages directly point quoting from rather than prior out of context. When we follow this case law nobody principle apparent it that has ever steadfast encompassing wrongful cap interpreted the death as society anything and than for loss of other malpractice companionship, In- in medical cases. even damage well-respected law in treatise on deed, the exempting interpreted the as has statutes Wisconsin compan- society wrongful and death loss cap malpractice ionship for noneco- from the medical writing damages, as follows: nomic right injured plaintiffs legislature has limited an suffering in claims pain and recover (to $350,000 cap A be providers. care against health annually by the director of state courts adjusted at least index) changes price in the consumer was to reflect May 25, on non-economic effective imposed, suffering, defined in damages, pain to include accrued on negligence in the claim medical cases which Stat. effective date. Wis. after the statute's Inc., WI 80, 236 Wis. Hosp., Czapinski v. St. Francis 2d 613 N.W.2d 120. 893.55(4)(a),(d);

§§ Wrongful 655.017. death claims are excepted cap. this non-economic loss Wis. Stat. from added).36 893.55(4)(f) (emphasis majority's misinterpretation ¶ 156. The of the law surprising holding parent in also is evident its that each may wrongful collect the full amount under the death cap society companionship. for loss of possible attempt

¶ 157. In a to save face and avoid compelled interpretation the absurd result its of the wrongful malpractice death statutes that recovery the total available for the survival actions and wrongful $150,000, death action is a mere majority conjures up interpretation wrongful an parent death statute that each allows this case to $150,000 recover a full under the death stat- ute. majority produce any

¶ 158. The cannot evidence anyone applied cap that has ever death generally tort actions or in medical actions specifically way they interpret in the Wis. Stat. 893.55(4)(f), is, that applies parent's parents' to each claim rather than both aggregate. claims support argument majority

¶ 159. In of its nothing except private offers us two communications legislative between member council staff legislator, by majority Green, one Mark identified as "key legislators."37 private by memoranda cited majority provide any "compel- fail evidence, to let alone (as ling" majority opinion evidence characterizes the 361 Damages 5.5, The Law in Wisconsin at 3 n.l of (Russell 2003). ed., M. 3d ed. Wаre 37Majority op., 89. ¶

96 memoranda)38 arising death actions that in child, a minor in the case of medical malpractice from amount of the Nor cap. recover the full each can parent under- that "key legislators ever show majority does the under Wis. Stat. claimant any eligible that stood claim for to make a separate was entitled § 655.007 ."39 . . . cited by memorandum fact, In one private of the statute states reading its justify majority that: only society of action for loss arguable

It that causes malpractice actions companionship in medical $150,000 current separate are and the wrongful death individually, action not applies to each cause of limit Casualty Fire and v. St. Paul aggregate. [Jelinek (1994).] (em Co., 2d 512 N.W.2d Ins. Wis. added).40 phasis states that: memorandum 161. This same "per [in occurrence" Presumably, reference is made to wrongful death provide 89] Act 1997 Wis. actions, a total limit the limit is may person who individually to each apply not and does society companionship for loss of bring an action added).41 (emphasis cited memorandum The earlier private follows: states as majority merely

38Id.

39Id. Attorney, Staff Dyke, Senior from Don Memorandum 1998) (on file with Wisconsin (Apr. Legis. Council Council). Legislative part: pertinent memo states in full The 1998 Society Recovery Damages Loss

1. Limitation Companionship society companion [for The causes of action loss of and ship malpractice wrongful in a medical action for appear separate surviving person death] to be —each bring may and, arguably, allowed an action do so— $150,000 applies limit to each cause of action individually, aggregate. in [Jelinek not v. St. Paul Co., Casualty 1, and Fire Ins. 182 Wis. 2d 512 N.W.2d (1994).] added).42 (emphasis $150,000 replaces Act 89 the current limit on for loss of society companionship wrongful and death actions with a $500,000 per limit occurrence in the case of a deceased minor or $350,000 per occurrence in the case of a deceased adult. The new apply wrongful involving limits both to death actions medical malpractice wrongful Presumably, and to other death actions. "per provide wrongful reference is made to occurrence" ‍‌‌‌​​​​​‌‌‌​​‌‌‌‌​​​​‌​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‍to that in malpractice actions, death medical the limit is a total limit and apply individually person may bring does not to each who an action (As society companionship. above, wrongful and loss noted involving malpractice, 895.04(4), death actions not s. Stats., already interpreted applying has been as the current $150,000 aggregate. limit in the Dyke, Attorney, Memorandum from Don Senior Staff 1997) (on Legis. (Sept. Council file with Wisconsin Council). Legislative pertinent part: 1997 memo states in Malpractice 2. Medical Actions action, malpractice wrongful In a medical death for loss society companionship, subject $150,00 and are also to the limit. 893.55(4)(f) 895.04(4), However, [ss. Stats.] in a medical death, malpractice may action for who recover society companionship applied

for loss of and how the limit is may generally. differ from death actions appears society companionship It that Emaction for loss of may a medical action for be (a) (b) brought: by surviving spouse; a a minor child of a (c) parent; by parent deceased of a deceased minor child. [See, Zirneski, example, Dziadosz v. 2d 177Wis. 501 N.W.2d (Ct. 1993).] App. appear separate The causes of action to be surviving person bring may and, —each allowed to аn action do so good member reason that staff It is for "appear," "arguable," "presumably," and chose the words "arguably" Jelinek decision. the reference to the with no limits existed on noneco- decided, Jelinek was When damages malpractice actions. Rineck in medical nomic wrongful previously death limits had decided that malpractice. apply affirmed in medical Jelinek did not the enactment of Wis. Thus, before that conclusion. 893.55(4)(f), malprac- in a medical each claimant Stat. or her loss to recover for his own tice action was allowed separate society companionship as a action of and governing malpractice all statute under the wrongful damages, death not under the statute.43 present Interestingly enough, to its rush 164. "key legislators

"compelling understood that evidence" any eligible 655.007 under Wis. Stat. claimant that wrongful separate claim for to make a was entitled unwittingly provides damages,"44 majority us death interpretation supporting compelling our with evidence majority fact that the overlooks the the statutes. analysis provided Rep. the staff member Green society only "damages and com- on for loss centers understanding panionship" that the an and reflects $150,000 arguably, applies cause of action limit to each aggregate. and individually, [Jelinek v. St. Paul Fire not in the (1994).] Co., Casualty 2d 512 N.W.2d 764 Ins. 182 Wis. clearly applied the Act 10 that while 1995 Wisconsin Note wrongful $150,000 society companionship in and limit on loss of actions, arguably malpractice it did not death actions to medical may change recover loss of differences who the above-cited society companionship in medical applied individu- the limit death actions whether (emphasis original). ally aggregate, in the Jelinek, 2d at 8-9. See 44Majority op., damages, even in cases of medical

malpractice, only society consists for loss of companionship.45 legal principle This fundamental -wrongful only death consist of dam- ages society companionship, for loss of which was apparent Rep. Green and a staff member, is lost on majority of this court. Rep. might

¶ 165. While Green have been inter- putting any uncertainty ested in an end to about the vitality by inserting continued of Jelinek and Rineck language "per occurrence," this does not mean that anyone today, interpreted ever, has before parent death statute to allow each to collect the full cap. amount under the prefatory fact, In note to the bill that 893.55(4)(f) (an § explanatory

created Wis. Stat. note in plain language required by printed statute to be and to introduced)46 accompany explains a bill when that society companionship claims for loss of and in medical malpractice -wrongful death would be treated in the involving same manner as claims other civil actions meaning death, that the award would be available in aggregate, individually: the not society loss The bill limits the for of

companionship may that be recoverable in medical malpractice involving $150,000 cases death to the maxi- established other civil actions in- currently mum for volving added).47 death (emphasis explanation ¶ 167. Such an bill, which was legislature available the entire before enactment of cap applied $150,000 understood that the the issues malpractice parents aggregate in in medical both wrongful death cases.

48 Co., 486, 499, v. Nat'l Ins. 158 Wis. 2d 463 York Cont'l 1990). (Ct.App. N.W.2d 364

101 example, in Fоr Schultz v. Natwick,49 parties treated the limit for death claims 893.55(4)(f) encompassing under Wis. Stat. as society companionship claims surviving parents, loss of both "per

both after before and occur- language rence" added.50 Neiman was See also v.Ameri- Property Casualty Company,51 can National in litigated parties which their case with the under- standing caps wrongful applied death to the parents aggregate, separately.52 in not understanding appli-

¶ 171. The Schultzes' important cation of the because Barbara Schultz key caps one of was advocates for the increased medical cases. only Schultzes' society noneconomic claim was for their loss companionship young of their child who tragically malpractice. died as result of medical Ms. Schultz's comments about death and medical malpractice, quoted by majority, have to be read Ignoring this context. the context of the Schultzes' majority opinion claims, the distorts Ms. Schultz's com- support reading major- ments to its of the statute. The ity by interpreting now mocks the Schultzes' efforts their law to reduce awards for the death of victims of malpractice.

49 Natwick, 125, Schultz v. 2002 19, WI 257 Wis. 2d 653 N.W.2d 266.

50 Natwick, Respondent 141; See Brief for App. at Schultz v. 125, 19, 2002 WI 2d 257 Wis. 653 266. See N.W.2d also Brief for Appellant at 7. Co., Neiman Prop. 83, v. Am. Nat'l & Cas. 2000 WI 411,

2dWis. N.W.2d Appellant 6, See Brief for at v. Neiman Am. Nat'l & Prop. Co., Cas. 2000 WI 236 Wis. 2d 613 N.W.2d 160. also See Respondent Brief for at 17. malpractice, Forgetting of the 172. the victims interpretation

majority total in its because its and errs providers the cost of concern is for health care and sole majority cynically premiums. The insurance attributes strength legislature and this to the the attitude lobby. providers' health care interpretation ignores majority's

¶ 173. The legislature's governor's concern for the welfare of Sky Lindsey people evident the Justin Millar— increasing damages law for loss of Brooke Schultz society companionship in actions to Thompson expressed $350,000 $500,000. Governor their as this concern for the victims and families follows signed the when he law: today signing I am is named the "Justin- legislation

The chil- Lindsey tragically Bill" for two families who lost limits on fought courageously to raise the dren and age at Lindsey Brooke Schultz died compensation. appendectomy punc- during a routine when hole was at Sky Justin Millar died tured in her abdominal aorta. tragedies. age allergy 11 from an shot. These are two Lindsey's Today make sure that families like we opportunity pursue compensa- fair Justin's have memory Justin and tion for their losses. So it is into Lindsey sign legislation I law.53 this opinion sight majority The has lost interpretation. Too bad for victims in its welfare of the legislature people correct the can state! misinterpretation majority's of a The families of law. again. their heard will have make voices state Release, Supp. Thompson's Resp. App. Press Governor

hH I—I ¶ questions 175. We would answer the three posed by majority opinion as follows:

(1) plaintiffs The in an action which death is caused

by malpractice may recover the limits of noneconomic negligence both medical death. (2) The death limit is unconstitutional under majority's interpretation of the statutes. (3) The circuit court erroneously exercised its discre-

tion in ordering remittitur of the verdict in favor of pre-death the estate for pain and suffering, reduc- ing $550,000 $100,000. award from ¶ reasoning 176. We set forth our in full even though may overlap the discussion to some extent repeat arguments made earlier in our criticism of the majority opinion. We do so in order to illustrate the logical simplicity interpretation applies with which our to the may facts of this case, and so that the reader approach contrast way with the convoluted .this majority beyond, which the stretches, and reaches accepted legal principles bounds of in order to reach its desired result.

(1) ¶ 177. We determine that the limits on noneco- 893.55(4)(d) §§ nomic set forth in Wis. Stat. (4)(f) separate serve as two and distinct recoveries malpractice when medical causes death. presented statutory 178. The issue is one of interpretation, question a of law that this court deter- independently mines of the circuit court and court of appeals, benefiting analysis from the of those courts. through journey begin the statutes our 179. We chapter 655.017 states Stat. 655. Wisconsin with of non- actions, "the amount in medical by plain- a claimant or recoverable economic pro- care of a health or omissions ... for acts tiff 893.55(4)(d) §§ subject the limits under ... vider added). (f)" (emphasis provides follows: as Section 655.017 damages recoverable amount acts or chapter this plaintiff under claimant or if the act or omis- provider health care of a omissions 25, 1995, acts or May and for on or after sion occurs provider, health care employe an of a omissions employment and his or her acting scope within services, acts or omissions care for health providing subject 25, 1995, May after occurring on or added). 893.55(4)(d) (f) (emphasis s. limits under § limit recov- does not ¶ of 655.017 The text 181. 893.55(4)(d) § ery limit of either to the lesser 893.55(4)(f) § malpractice limit for or the § to both directs us Rather, 655.017 death. (f) 893.55(4)(d) damages §§ the limits to assess causing wrong- malpractice imposed in of medical cases death. ful recognizes that both Section 655.017 damages Wis. Stat. under on noneconomic

limit 893.55(4)(d) damages § limit on and the 893.55(4)(f) applicable § in medical are Stat. under Wis. legislature intended to malpractice Had the actions. 893.55(4)(d) § recovery or the limit limit to either 893.55(4)(f) patient depending § on whether limit language. different have used died, it would 893.55(4)(d) § sets the Stat. 183. Wisconsin damages in medical on noneconomic limit $350,000 actions for each occurrence at (adjusted inflation). 893.55(4)(d) Section states in full as follows:

The limit on total noneconomic for each (b) occurrence under par. May on or after $350,000 adjusted by shall be and shall be the director of state changes courts to reflect in the price consumer consumers, index for all city average, urban U.S. as department labor, determined the U.S. at least thereafter, annually adjusted with the limit to apply to subsequent adjustments. awards to such 893.55(4)(f) § 184. Wisconsin Stat. states that "notwithstanding limits on noneconomic damages" 893.55(4) § under (namely $350,000), "damages recov- against erable health care providers . . . for wrongful 895.04(4)." subject death are to the limit § under Wis- consin 893.55(4)(f), Stat. which we set forth again, provides as follows:

Notwithstanding the limits on subsection, under this against recoverable providers health care and an employe of a health care provider, acting scope within the employ- his or her ment and providing services, health care for 895.04(4). subject death are to the limit under s. If 895.04(4) damages in excess of the limit under s. are found, the any court shall make required reduction under s. 895.045 and shall award the lesser of the 895.04(4). limit reduced amount or the under s. 893.55(4)(f) Because Wis. Stat. refers to § 895.04(4), governs which the limit on for damages loss of society and companionship wrongful death actions regardless of whether these damages arise in medical 895.04(4). malpractice torts, cases or other § we turn to 895.04(4) Section governs limits on loss of society companionship damages death wrongful actions both in medical limit malpractice and in other torts. The society companionship damages set of for loss 895.05(4), § statute, $150,000 death was 895.04(4) provides as follows: in this case. Section injury from damages pecuniary for Judgment for any entitled may person to wrongful death be awarded Additional wrongful death action. bring a $150,000 society compan- for loss not to exceed children or spouse, to the ionship may be awarded deceased. parents of the argument support that the stat- of his In "globalcap" us $350,000, Dr. Hall directs

utes create 893.55(4)(b).54 § Stat. Wisconsin Stat. to Wis. 893.55(4)(b) § dam- "total noneconomic states that the arising injury bodily ages from or death" recoverable "may malpractice Dr. $350,000. not exceed" medical legislature's argues the word use of Hall to include its intent "death" demonstrates "total noneconomic claims within the damage recoverable" under cap. 893.55(4)(b) § Interpreting Wis. Stat. part of "total noneconomic death as

include (f) super- paragraph damages" however, render would, (f) that"[notwithstanding Paragraph states fluous. 893.55(4) damages" under limits on against ($350,000), "damages health care recoverable again quote Wisconsin we reader's convenience For the 893.55(4) (b): Stat. bodily injury or recoverable

The total noneconomic death, including any proceeding on contribution action or based (d) par. indemnification, may for each the limit under not exceed providers May 25,1995, all health care from on or after occurrence scope acting providers employes care within of health and all providing who are employment health care services their compensation patients fund. negligent and from found providers wrongful subject . . . for death are to the limit 895.04(4)" added). § (emphasis under face, On its "notwithstanding" phrase points away us from Wis. 893.55(4) (the § cap Stat. damages $350,000 on noneconomic malpractice)

in medical and toward 895.04(4) § (establishing cap $150,000 on loss of actions) society companionship wrongful death recovery wrongful to determine the limits available in a death action. attempts sidestep

¶ 188. Dr. Hall this inconve- "notwithstanding" by phrase arguing para- nient (f) graph recovery wrongful means that death is 895.04(4) § limited to the amount set forth in Wis. Stat. ($150,000) damages" if even the "total noneconomic are 893.55(4)(d) ($350,000). § further limited agree parents ¶ 189. We with the that the text of 893.55(4)(f) § wrongful Wis. Stat. means that death separated provisions actions are from the various 893.55(4) (medical malpractice) Wis. Stat. and that notwithstanding any other limits on contained malpractice in the medical statute, the statute on wrongful integrity death retains its even a case involving malpractice. legislature's phras- ing "notwithstanding the limits on noneconomic dam- 893.55(4) ages" ($350,000) specifically under directs cap us to the in the death statute evaluat- (that ing the award for is, society companionship) loss of in a death action. To read the statute otherwise would render the language "notwithstanding" superfluous, something we legislative cannot do if are we to be true to the text. reading ¶ 190. Our of the statute is consistent 893.55(4). history §§ with the of Wis. Stat. 655.017 Upon original passage, chapter 655 did not include a on noneconomic in medical chapter refer to did cases. Nor legislature damages. until 1986 that It was not damages caр in medical created a on noneconomic cap malpractice actions; $1,000,000. was Section amount of amended to read that "the 655.017 was damages by a claimant under noneconomic recoverable [governing malpractice]. chapter . is medical . this subject (singular) under section to the limit" 893.55(4).55Chapter explicit 655 contained no reference wrongful separate cap death actions. to a for expressly chapter did not 191. Because damages malpractice in recoverable medical state (the society companionship) were actions loss of wrongful subject general to the limitation under the 895.04(4), § provisions court death Stat. this Wis. wrongful in that the death limit held Rineck v. Johnson damages superseded by higher on noneconomic was malpractice damage cap in noneconomic medical 893.55(4)(b), § According court, to the Rineck cases.56 § cap governing malpractice, 895.04, not medical by applied medical death claims caused malpractice. year Rineck, in 192. One after our decision companion §

provisions of Stat. 655.017 and its Wis. 893.55(4) § to 1995 Therefore, from 1991 were sunset. damages in no existed at all on noneconomic malpractice In v. St. Paul Fire cases. Jelinek medical Casualty Co.,57 held that after Ins. the court and January 1991, involving malpractice death were not limited. actions (1987-88). 30; § § Wis. Stat. 655.017 1985 Wis. Act 56Rineck, 2d at 665-68. 155 Wis. Co., 1, 9, 2d Ins. 182 Wis. Jelinek v. St. Paul Fire & Cas. (1994). 512 N.W.2d 764 Possibly response

¶ as a to our decisions in legislature cases, in these 1995 the amended the stat- chapter utes 655 to create Stat. 893.55(4)(f).58 893.55(4)(f) originated Section in 1995 Assembly Bill 3659 and effect undoes Rineck 895.04(4) making death limitation applicable malpractice Legis- to medical actions.60 The analysis quoted lative Reference Bureau's of the bill part earlier61 demonstrates that the bill creates two separate statutory limits, one on noneconomic in medical cases and one on (loss society companionship) arising malpractice.62 from medical Finally, imposing "global cap"

¶ 194. Dr. Hall's consequences. present leads to absurd Under the stat- wrongful cap ute, death for minor children ($500,000) higher is than the "total noneconomic dam- ages ($350,000 cap" malpractice adjusted for medical inflation). Interpreting the statute as Dr. Hall asserts bigger cap means the is forced to fit within a smaller cap. cap wrongful Also, $500,000 the new on death malpractice claims would not be realized in a medical 58 Czapinski, See 2d 236 Wis. 16. ¶ 591995 Wis. Act 10. Czapinski, See 236 Wis. 2d 16. 144, supra. See ¶ wary relying heavily rejected While we must be of too on legislative intent,

amendments as evidence of there is historical $500,000 "global cap" evidence that the creation of a for all damages regardless noneconomic by of death was considered legislature rejected. and See amendment to Wis. Stat. 895.04(4)(f) by § submitted Senator Joanne Huelsman in 1997 providing "cap cap." a within See Senate Substitute Amend Bill ment to 1997 Senate cap

claim exceeds the limit for noneco- because new damages malpractice. in medical nomic argues $350,000 195. Dr. Hall that since the 893.55(4) adjusted limit under Wis. Stat. is for infla- eventually greater tion and therefore be than the will 895.04(4), interpretation $500,000 limit under his is disagree. Nothing in $500,000 valid. We wrongful text new cap history gives any

death or its indication the new would have to await the inflation index.

¶ 196. For the reasons set forth we conclude that damages the limits noneconomic set fоrth Wis. 893.55(4)(d) (4)(f) §§ relating Stat. and to medical mal- practice separate as death serve two distinct recoveries when medical causes wrongful death.

(2) jury $2,500,000 The case awarded to this Shay's parents as death for their loss jury society companionship. In addition, Shay's pre-death $550,000 estate for her awarded suffering. majority pain reduce the would $2,500,000 $300,000 from that is as the total amount majority parents.63 recoverable her Because may $300,000 the most that be recov- concludes that remittitur of the ered, it declines to address the jury pain the estate for $550,000 award of the to suffering. I, link Article Section 564 Given the between Constitution, I, Section 9 in the Wisconsin and Article 63Majority op., states, I, Constitution Article Section 5 of Wisconsin part, in relevant as follows: majority untenable conclusion. Such a reaches an effectively denies on noneconomic

low by jury right plaintiffs under constitutional to trial remedy as I, and, turn, Section 5 to a Article by guaranteed I, 9 of the Article Section Wisconsin majority's conclusion Moreover, the Constitution.65 equal protection principles in the violative of embodied and United States Constitutions.66 Wisconsin inviolate, right by jury and shall extend of trial shall remain controversy; regard all at to the amount in to cases law without jury may parties in in the trial be waived all cases but Provided, however, prescribed by legislature that the manner law. verdict, may, time, by provide from time to statute that a valid cases, may specified civil be based on the votes of a number of the jury, than not less five-sixths thereof. global cap that the manufac We conclude by majority on the basis of Article tured is unconstitutional I, I, interpreted together, Section 5 and Article Section 9 as well equal protection grounds. as on Since we rest our conclusion of unconstitutionality grounds, on those there is no need to separation powers process discuss the of and substantive due issues. 66Amendment Section 1 of the States Consti United XW states, in .. part,

tution relevant as follows: "No State shall. life, deprive any person liberty, property, without due law; deny any jurisdiction process person nor within its equal protection of the laws." I, states,

Article Section of the Wisconsin Constitution part, people equally relevant as follows: "All are born free and independent, rights; among and have certain inherent these are life, liberty pursuit happiness; rights, and the to secure these instituted, governments deriving just powers are their from governed." consent of the the state applies interpretation

"This court the same given Equal equivalent Protection Clause as that to the federal I, provision. Compare Wis. Const. Art. 1 with U.S. Const. ¶ 198. We turn first decisions from other states caps that have addressed on noneconomic provisions protecting relation to constitutional rights by jury remedy injuries to trial and to a wrongs. Department In Smith v. Insurance,67 of Supreme Florida Court concluded a $500,000 on noneconomic in medical cases § violated Florida's Constitution. I, Article 21 of the following: Florida Constitution stated the "The courts open every person any injury, shall be for redress of justice and delay."68 shall be administered sale, without denial or previous Kluger involving

In a case, White,69 v. setting of a floor for noneconomic in which plaintiff plaintiffs a damages would not be entitled to sue if the specified

were a amount, below the Florida Supreme unconstitutionality Court noted the a such provision, party's since it would hinder a access to the Noting holding Kluger directly courts. controlling that its was Smith, the court stated: right [W]here a of access to the courts for redress for a particular injury provided has been by statutory law predating adoption of the Rights Declaration of Florida, the Constitution of the State of or where such right part has become of the common law of the State pursuant 2.01, F.S.A., Legislature to Fla. Stat. power

without right to abolish such a provid- without ing a protect reasonable alternative to rights people injuries, of the State to redress for unless Legislature overpowering necessity can show an public XTV, Bailey, L" Castellani v. 245, 261, Amend. 218 2dWis. 578 (1998) (citations omitted). N.W.2d 166 Ins., (Fla. 1987). Dep't Smith v. 507 So. 2d 68 Smith, 1082, 1087 507 So. 2d Art. (quoting Florida Const. 21). I, § White, (Fla. 1973). Kluger v. 281 So. 2d no alternative right, and of such the abolishment necessity can be public meeting such method of

shown.70 The court in Smith appellees' the rejected not were plaintiffs that medical arguments had legislature the courts, since access to denied a abolished completely and not merely capped the court argument, this rejecting In cause of action.71 provisions constitutional link between recognized remedy through to a by jury right trial concerning following: court stated courts, when the access to I, article section the title to reasoning focuses on This which courts," the contents 21, and overlooks "Access "Trial conjunction with section must he read purpose granted for Access to courts is jury." jury a who receives redressing injuries. plaintiff A $1,000,000, not received a consti- for, e.g., has verdict statutorily, legislature injuries if the tutional redress of Nor, $450,000. recovery we arbitrarily, caps the at arbitrarily being add, jury verdict because the receiving the constitutional plaintiff is the capped, understood jury we have heretofore of a trial as benefit may Further, legislature if constitution- right. that $450,000, is no discernible recovery at there ally cap recovery at some other why cap the it could not reason $1,000, $50,000, or even figure, perhaps $1.72 or that noted Smith court further there was reach the issue of whether court would 2d at Smith, Kluger, 281 So. (quoting 2d at 1088 507 So. 1973)). (Fla. 71 Id. Thompson, 491 Pa. Mattos v. Id. at 1088-89. See also 1980) (Pa. statutory that a restrictive (recognizing

421 A.2d 190 imper- Act Malpractice in the Health Care Services provision by jury). right to trial missibly infringes on the constitutional cap only legislature rational basis for the when "the provides remedy abrogates an alternative or restricts right showing overpowering public the necessity based on a meeting

and that no alternative method of necessity legis- that exists."73The court noted that the provide lature had failed to alternate remedies, and the appellees argue damages cap failed to was public necessity remedy based on and another such was unavailable.74

¶ 201. In States,75 Lucas v. United the court con- statutory damages cap cluded unconstitutionally that a litigant's "right limited a of access to the courts for a "76 'remedy by due course of law.' First, the court noted legislature provide any that the failed to Lucas with alternative means which he could seek redress.77 acknowledged legislature's The court the concern with liability insurance rates and its desire to see a decrease in those rates.78 Nevertheless, the court stated that guarantees "Texas Constitution I, article section 13, meaningful liability to the access courts whether or not high."79Drawing reasoning rates are from the set forth rejected argument Smith, in Lucаs the defendant's that applicable statutory cap the did not a abolish cause of plaintiff and, therefore, action the was not denied access the courts.80 The court Lucas cited with approval language in Smith that stated that a

73Smith, 507 So. 2d at 1089. 74Id. United, (Tex. 1988). States, Lucas v. 757 S.W.2d (citation omitted). Id. 77 Id. at 690. 78Id. at 691. 79Id.

80Id. at 691-92. right jury

plaintiff trial to a is denied constitutional Citing jury arbitrarily capped.81 is with a verdict when Supreme reasoning approval of New from the Court " following: Hampshire, 'It court stated impose simply the burden of unfair and unreasonable industry solely upon supporting those the medical care injured severely persons are most therefore who "82 compensation.' inmost need of lowering statutory cap a issue of drastically could deemed unrea so that it be right in a denial of the result constitutional sonable right remedy, by jury and denial of the to a has to trial In Peters and decided Maine. v. also been raised Supreme noted Judicial Court Maine that Saft,83 that a statute could limit the measure "it is conceivable drastically it result in a of tort so would right by jury to trial and the denial of a denial remedy . . . ."84 recognized long Wisconsin, In we have litigant's right remedy.

importance a to a suitor, therefore, may properly upon complete A insist remedy rights in clearly within his constitutional and is reason, any just refusing, any part of his to waive obtaining relief the demand or defense. That such cost amount involved is far less than the to the state awarding not not community in it to him is and should 81Id. at 692. (N.H. Maurer, 825, (quoting Id. v. 424 837 Carson A.2d

1980)).

83 (Me. 1991). 50, Saft, Peters v. 597 A.2d 53 84 Hosp. See ex rel. Cardinal Glennon Mem'l also State (Mo. 1979) Gaertner, (recognizing v. Children 583 S.W.2d 107 regard statutory provisions in to medical mal that restrictive as practice claims were unconstitutional a violation remedy). right open constitutional to courts and a certain 116 permitted be juries to influence trial in courts and considering the merits the issue.85 Moreover, we have discussed this to a right in to remedy I, reference Article Section 9 of the Wisconsin Constitution.

If we to organic recur our own state law we find the provision "Every fundamental person that is entitled to remedy injuries certain in the for all wrongs laws or may person, which he receive his property or char- acter; ought he obtain justice freely to and without obliged being purchase it, completely to and without denial, promptly delay, conformably and without to the 9, I, laws." Sec. art. This is Const. a basic and valuable guaranty that the courts of the state be open should to all persons good upon who faith and probable cause they wrongs. believe against have suffered Is it not public policy permit to one person deprive another asserting rights from his in court?86 In Stanhope v. Brown County,87 this court I, discussed Article Section 9 statutory relation to damages caps. I, court noted that Article 9 Section provides

[e]very person remedy is entitled to a certain in the injuries, all wrongs may laws for or which he receive in character; person, property, ought his he to obtain justice freely, being it, obliged purchase and without Co., Garage 474, 85 Knickerbocker v. Beaudette 190 Wis. (1926). 480-81, 209 N.W.2d 763 Will, 163, In re Keenan's N.W.2d 1001 (1925). 87Stanhope County, v. Brown 90 Wis. 2d 280 N.W.2d (1979). denial, and promptly without

completely without delay, conformably to the laws.88 In further noted our decision Stanhope, we stated that County,89 Kenosha where we McCoy in v. 'certain wrongs' remedy' 'injuries "the phrase reference to to be understood with [sic] clause were for which remedies were injuries wrongs those the constitution was at сommon law when available In that McCoy, "[t]his we noted 1848."90 adopted asserted the recently impor- has and frequently court very to of this provision, value the individual tance and not be 9, I, Const., slighted art. and that it is sec. minimized . . . ."91

88 I, 2d Const. Art. Stanhope, (quoting 90 Wis. at 844 §9). 89 348, 218 McCoy County, Wis. N.W. 57 v.Kenosha 195 (1928). A.L.R. 412

90 273). (citing McCoy, 2d at 845 195 Wis. Stanhope, Wis. statutory determine Stanhope, In examined the limit to we unreasonably recovery amount represented it an low whether Stanhope, 90 Wis. 2d that it rendered the statute invalid. such 356, 367, City Brookfield, Sambs v. 97 Wis. 2d at 844. See also (1980). 293 N.W.2d504 (1928) (citation omitted). See McCoy,195 Wis. at 283 also Remedy, Phillips, Right R. Thomas Constitutional (2003) (Phillips, Justice of L. Rev. the Chief N.Y.U. Texas, recognized medical Supreme "[i]n Court of area, malpractice capping courts have struck down statutes malpractice medical victims by experts requiring to be claims screened (footnote omitted).). filing" before Though ¶ 207. the decision reversed, was later Fund,92 v. Estate Masons Health Care the lead of Makos opinion repose concluded that a statute of violated the plaintiffs right remedy constitutional to a under Article of I, Section 9 the Constitution, Wisconsin since it plaintiff closed the courtroom doors before the even injured. discovered that she In was a concurrence by history Crooks, written Justice the behind the implications fully I, of Article 9 Section were rather explored.93 I, While Article 9 not Section does confer any rights guarantee remedy itself, it a does when an injury infringement right.94 legal results from an of a apparently existing prior law, Under the common to adoption of Constitution, the Wisconsin individuals right bring malpractice a to Wisconsin had actions.95 theWith ‍‌‌‌​​​​​‌‌‌​​‌‌‌‌​​​​‌​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‍establishment of ch. in 1975, 655 right legislatively recognized.96 this became The con ultimately currence concluded following prin- courts should consider the three along action, ciples, with the nature of the cause of determining whether an individual has been the denied right I, remedy through to a of violation art. modification, legislature's reduction, or of a elimination (1) right bring a of cause action: whether modified, reduced, legislature post- or eliminated a by constitutional cause of legislature action created (2) itself; legislature modified, reduced, whether a pre-constitutional eliminated common law or statu- tory provided of action cause a reasonable alterna- Fund, Estate v. Masons Health Care 211 Wis. 2d of Makos (1997). 41, 54, 564 N.W.2d 662

93 Makos, (Crooks, J., concurring). 211 Wis. 2d at 60-67 Id. at 62 (Crooks, J., concurring). Id. at 63 (Crooks, J., concurring). 96Id. (3) legislature

tive; whether, provide if the did not alternative, that an it has established a reasonable necessity public for the abolishment overpowering exists, no reasonable alternative right and that such exists.97 would I, Section 9 its own While Article unconstitutionality here, result in a conclusion

not jury, right however, we to trial linked with the when majority's interpretation medi- conclude that More is unconstitutional.98 cal statutes specifically, it and unconstitutional is unreasonable covering global cap manufacture, cloth, out of a whole parent's death and the suffering.99 pain Such estate's by jury right parent's under Article to trial offends the 97 J., (Crooks, concurring). Id. at 67 I, 9, singly "Article opinion states that majority The I, 5, legislature not bar the with Article does in combination causes of determinations about making rationally-based from Majority op., in 99¶ to health care Wisconsin." action related However, applicable majority's interpretation the the n.20. majority not, rationally based. The opinion, in our statutes is and, survivorship clаims, in wrongful death and conflates the so, at unreasonable and unconstitutional doing arrives an damages. global cap on Co., 311-15, 2d In v. Motor 97 Wis. Wangen Ford (1980), for explained that cause of action

N.W.2d 437 we pain a action for and wrongful death differed from survival suffering. stated: We which, suffering pain we child's and as The cause of action for the estate, earlier, separate passes is to a decedent's discussed wrongful death The estate's action is for distinct from this action. belongs injured wrong person; the

the to the action loss; pecuniary the action for their latter to named beneficiaries recovery, begins but a the ends. "It is not a double where former recovery wrong." a double right remedy I, to a Section as linked the under emphasize I, Article Section 9. We that we are not taking constitutionality statutory issue with the damages caps general. in Rather, we conclude that the majority's interpretation requiring of the as statutes global cap a such reduced on noneconomic is unconstitutional. majority's conflating wrong-

¶ 209. The action in survivorship interpreting ful death actions and (here imposing global cap the statutes as a $300,000 for actions) paints legislature body both a the that as has pre-constitutional reduced common law causes of statutory, providing action, which are now without reasonable alternative. We do not believe this is Legislature what Wisconsin but did, rather it is majority by interpretation what now does its Certainly, plaintiffs statutes involved. this case adversely majority's arbitrary will be affected indisputable Moreover, decision. it that this decision negative impact beyond parties have a will well aggrieved parent, Schultz, this case. As Barbara legislators an told public: cap, $150,000 "With the it is making very get Why? it hard cases to even court. very expensive. Medical cases are Attor- neys is, sometimes turn down cases. reason usually expert testimonies, which are from Doctors, paid."100 must be also (citations omitted).

Id. at 312 100 See Dangerous n.8. See also Five majority 80 op., Restrictions, Myths About Medical Malpractice California's at http://www.consumerwatchdog.org/healthcare/fs/fs available Hype Malpractice Outraces Facts in Debate 003009.php3 (March 5, 2003), at http://www.usatoday.com/money/ available industries/health/2003-03-04-malpractice-cover_x.htm, regarding lawyers discussions the refusal of California to to Finally, guidance turn for de- again we states, that other and we conclude cisions from equal is violative of majority's interpretation protection OZsore,101the North Dakota In Arneson v. principles. medi- that a statute capping Court concluded Supreme equal protection cal violated malpractice negli- malpractice of victims of medical rights injured North Dakota Constitution. in violation of the gence following: in Arneson stated the The court $250,000 malpractice given cases noneco- handle medical effect, that, resulted in denial of a damages cap nomic in has remedy many malpractice plaintiffs. Rob- potential Baker, president of then of the American Board Trial ert C. (ABOTA), Judiciary the House Com- Advocates testified before following: mittee stated damages, exceedingly caps As a most of result competent lawyers simply plaintiffs will handle a California not malpractice case. categories cases have been eliminated There are entire that implеmented malpractice since reform was California. $50,000 $150,000 a value between victims of cases have example, basically representation. are without As an incidents appendicitis occur, diagnose failure still but suits are not filed to any in California. extent Dangerous Malprac- About Myths Five California's Medical Restrictions, http://www.consumerwatchdog. tice available at org/healtheare/fs/fs003009.php3. noting membership

It is that ABOTA's roster is worth half comprised plaintiffs' attorneys half defense attor- clients, neys. major the HMO Kaiser Permanente and Baker's Company, him insurer The Doctor's fired soon he after testified. (N.D. 1978). Olson, v. 270 N.W.2d Arneson At the beginning opinion of this quoted we pre- statute, amble of the containing legislative its purposes. These include assurance availability of of competent medical and hospital cost, services at reasonable elimi- nation expense involved in nonmeritorious mal- claims, practice provision adequate of compensation to patients claims, with meritorious and the encourage- physicians ment of to enter practice into in North Dakota and remain in practice long they such so as are qualified to do so.

Does the recovery limitation of seriously damaged injured victims of negligence promote these aims? We hold that it does not and that it violates the Equal Protection Clause of the State Constitution. Certainly the recovery limitation of provide does not adequate compensation patients with meritorious claims; contrary, on the just it does opposite for the seriously injured most nothing claimants. It does to- ward the elimination of nonmeritorious claims. Restric- recovery may tions on encourage physicians to enter practice into and remain in practice, only but do so at expense of claimants with meritorious claims.102 Similarly, majority's interpretation provide adequate compensation this case fails to for the nothing filing claimants here and does to deter the majority's interpretation nonmeritorious claims. The "impose the medical statutes seeks to supporting industry solely burden of the medical care upon persons severely injured, those who are most compensation" by effectively therefore most in need of writing pain suffering equation out of the when a patient In Maurer, dies.103 Carson v. A.2d (N.H. 1980), Hampshire Supreme the New Court con-

102Id. at 135-36. Maurer, (N.H. 1980) (cita Carson v. 424 A.2d omitted). tion $250,000 limit on noneconomic eluded that a equal malpractice plaintiffs in cases the denied Hampshire protection the Constitution.104 under New rejected arguments the defendants' The court in Carson was constitu- on noneconomic that not limited in the defendants were because the tional aptly loss. The court for economic amount recoverable provide loss not that for economic does noted an award recovery remedy provided a same as that damages.105 court stated: noneconomic nothing however, "gains" that clear, It a tort victim is loss, that since jury's from award for economic actually has lost. It is money that which he replaces out-of-pocket that is only above the loss the award way pain, compensate in some available disfigurement impairment that suffering, physical endure death.106 the victim must until interpret ¶ 212. the Wisconsin courts Wisconsin provisions governing and United States constitutional bringing identicаlly.107 equal protection an Parties equal protection prove treats that a statute claim must differently.108 similarly a class members of situated right in medical not involved a Since a fundamental a rational basis claim, we conclude general, applicable In we this case.109 standard is protection principles "uphold equal if a under statute 104Id. at 838.

105 Id. at 837.

106 Id. 107 Fund, Comp. 98, Aicher v. Wis. Patients ¶ 2000 WI omitted). (citation n.14, 99, 613 237 Wis. 2d N.W.2d 849 108 Id., 56. Inc., Hosp., 21, Guzman v. St. Francis App 2001 WI 2d N.W.2d supports legislative we find that a rational basis We must "determine a classification."110 whether classi- rationally legislative objec- fication scheme advances doing, obligated or, In are tive. so we to locate in the might alternative, construct a rationale that have influ- legislative enced the determination."111 majority adopts Here, a rationale that Legislature's objective unfairly fails to advance the assigns maintaining the burden of the financial well- being industry injured plaintiffs. of the medical care majority's

¶ 214. conclude that We new for- configuring mula for malpractice in medical equal protection

cases is violative of the unduly Constitution, clause in the it Wisconsin since burdens claimants without a ratio- justifies interpretation nal basis that its of the medical malpractice statutes. majority's interpreta- sum, In the tortured statutes,

tion of the which results the concoction of a global cap applicable to both death and survi- plaintiffs' rights vorship actions, does to the to violence jury conjunction right remedy, their to a trial with right equal protec- and, further, violative of their to tion.

(3) ¶ 216. to the issue of remittitur. The We turn now majority not whether the circuit court does discuss erroneously ordering remit- exercised its discretion jury's pain suffering. pre-death titur of the award of unnecessary It concludes that such a discussion is (citations omitted). Aicher, 2d 237 Wis. 111Id., suffering pain and because the verdict for has no effect recovery present majority on the in the case. The parents equally in the assumes share child's parent only estate, but because each can recover damages pain suffering $150,000, the for the child's previously, majority are irrelevant. As we stated opinion open question leaves how allocate different are to dam- when claimants entitled ages for survival actions and to death. complete

¶ 217. We decide the remittitur issue to give parties' discussion and arguments. full consideration to the jury awarded to the Estate Shay's pain suffering prior to her death in the granted $550,000. amount of The circuit court remitti- reducing tur, $100,000. award

¶ 218. Before can decide issue, we this we must standing parents decide first whether have to raise cross-appeal. issue remittitur on Whether a person standing question has is a of law that this court independently court, determines of the circuit benefit- ing analysis from the court. circuit parents

¶ 219. Hall Dr. contends that are precluded raising from the remittitur issue because they accepted seeking the order of remittitur instead of support argument, a new trial. In of his Hall Dr. cites Brewing Co., Burmek v. Miller in which the court held plaintiff given option accept that a when is an to a damages reduced amount of damages, acceptance or a new trial limited to damages precludes

of the reduced appellate review of the circuit court's determination of damage the issue.112 112 Co., Brewing Burmek v. Miller 12 Wis. 2d (1961).

N.W.2d 583 220. The counter that in parents subsequently, Milwaukee, City Plesko v. modified the the court of Burmek rule.113 Plesko states "the rule the Burmek case should be limited to the where situation and that an damages appeals" the awarded when party the who has the opposing party appeals, party accepted take for such a amount judgment reduced option nevertheless have a review on damages may appeal damage the circuit court's determination of the issue.114 221. Because Dr. Hall initiated the the appeal, Burmek rationale rule not undergirding present in this case. The Plesko court its explained reasoning behind the modification of Burmek as follows: objective underlying procedure the recommended granting option accept judgment an for a reduced trial, having

amount of lieu of a new where by by jury awarded are determined excessive, delay trial court to be is to avoid situations, trial. In expense appeal of an or new most likely party accept judgment for such it is that the will undergo expense, rather than reduced uncertainty delay, appeal of an or new trial. Nev- ertheless, party pay damages appeals if a found liable to judgment resulting party's accepting from the other nega- damages, objective reduced this has been such undergo plaintiff appeal When is forced to an tived. has opposing party, plaintiff

the action of an after judgment damages, such reduced it seems accepted having trial court's prevent unfair to his a review of the leading damages, determination to the reduction Milwaukee, 210, 120 City v. 19 Wis. 2d N.W.2d Plesko (1963). 114Plesko, 19 Wis. 2d at 221. especially plaintiff accepted only if has same to avoid delay attending appeal.115 an expense the parents ¶ 222. conclude that the have stand- We ing cross-appeal. to raise the remittitur issue on An any grounds appeal the kind on constitutes of "new proceeding" discourage. that Burmek meant to was any cross-appeal on the does issue not cause delay already expense appeal than Dr. more Hall's identity raising party appeal has. It is the is determinative under PZes£o.116 Having

¶ 223. reached the conclusion that standing, parents have we further conclude that the erroneously circuit court exercised its discretion ordering jury's pre-death pain remittitur of the suffering award. applicable

¶ 224. The standard for review of a circuit court's reduction of is well-settled. finding When a circuit court "states its reasons for jury's reducing award of excessive and for reviewing award," the court reverse the circuit will only reviewing court's determination if "the con- court cludes there has been an erroneous exercise discre-

115 Id confirming right other appeal For cases to cross an remittitur, see, e.g., Employers order of Bash v. Mut. Liab. Ins. (1968) Co., 440, 455, 2d (cross-appeal 157 N.W.2d634 appropriate opposing party appealed remittitur when the a Co., issue); separate Merlino v. Mut. Serv. Cas. Ins. 2dWis. (1964) 571, 585-86, (plaintiff accepted 127 N.W.2d 741 option judgment to take for a reduced amount rather than have issues; damage plaintiff right a new trial on the has this where here, opposing party, appeals). as analyze the circuit court fails to tion."117 When supporting its reasons to set forth the evidence or give reviewing no deference court should decision, the Conclusory statements the circuit court's decision.118 to regarding are of an award insufficient the excessiveness appropriate of discretion whеn exercise to establish damage contemplating a award.119 parents court ¶ that the circuit contend of for the reduction failed to state the reason requisite particularity no and that therefore with the determination to the circuit court's deference is owed agree jury them. with was excessive. We that the award $550,000 reduced the 226. The circuit court concluding jury of a discussion $100,000, verdict to suffering difficulty comparing pain of differ- following people, statement: ent with the this of time which period a limited [TJhere was pain conscious unfortunately had to endure young child this, like it’s in a case suffering.... and I think it's with, but up come jury should have figure not what being think, point that rather, point I at what $550,000 my mind that is no doubt excessive. There in this case was the evidence for what had been it point where difficulty is where was excessive. The factors, I [C]onsidering all of those became so.... op- given the plaintiff ought to be that believe $100,000 .... accepting a sum of tion ... of 117 229-230, 211, 291 Fahrenberg Tangel, v. 2d 96 Wis. Builders, Inc. v. Erickson (1980). Carlson & See also N.W.2d 516 Yards, Inc., 669-70, 905 650, 529 N.W.2d 2d Lampert 190 Wis. (1995). 118 Erickson, Fahrenberg, 669; 2d at Carlson & 190 Wis. (1980). 516, 229-230, 291 N.W.2d

2dWis. Co., Ash, Hawkins, & Baptie v. Computer Servs. Mgmt. (1996). 2d 557 N.W.2d 206 Wis. Shay 227. The circuit court did mention that "very very very

Maurin sick, sick," was that she had a night," question "troubled and that there was "no depth scope Shay's she had" suffered. The suffering, however, are absent from the circuit court's discussion. limiting 228. As the it, circuit court saw emphasized

factor was time. The circuit court that the Shay's pain suffering duration of was less than two days. full The circuit court did not state what other factors it considered when it reduced the award. The circuit court did not enunciate a rationale for substitut- ing place figure an $100,000 award of reached jury.

¶ reviewing 229. Under these a circumstances court must review the entire record and determine jury conducting whether the award is excessive.120In analysis reviewing its court must the view evidence in light party prevailing most favorable to the with the jury.121 progression Shay's symptoms 230. The in the days Expert physicians

last two of her life was horrific. jury informed the about the throes of diabetic ketoaci- Treating dosis. nurses and doctors described her condi- spiraling Shay frequent tion downward. suffered urina- lethargy, dry tion, thirst, insatiable nausea, heaves, nights, vomiting restless brown and black substances, panting, fatigue, and exhaustion. Shay girl

¶ 231. Maurin was a sick before she saw Dr. Hall. On March 5 she went to the General Clinic of lethargic, West continually Bend because she was drinking eating day, fluids, and not well. The next she Erickson, Carlson & 190 Wis. 2d at 669. 121 Id. at 669-70. energy anything. try eat, to eat she did to had no When gag. put bed, tried her to When her mother to she would vomiting. began took her to the bath- she Her mother dry Shay and heaved simulta- room, where urinated daughter neously. Shay's Hartford mother took her to just midnight Hospital on March Memorial before misdiagnosed her. Dr. Hall attended to her but 1996. day Shay was tired and miser- next Shay stayed aunt, her who called Yvette able. with Shay vomiting report "brown, Maurin to that was girl tobaccoy-looking lying the floor stuff." The was carry get up, her not Yvette Maurin had to and could so Shay reported She the doctor that was into the clinic. to dry heaving, urinating, drinking Yvette more. daughter hospital, her Dr. Maurin carried Madenberg diagnosed to where Shay was in acute diabetic Shay Yvette called out to her mother while ketoacidosis. Maurin about what to do. Ms. conferred with doctor Hospital Shay to the Children's decided send Shay way on the Wisconsin. fell unconscious up; hospital died the next and never woke she children's day. light Reviewing evidence in thе most jury plaintiff verdict, we to the

favorable erred further con- conclude that the circuit court jury's pain supports clude that the record suffering therefore award to the Estate. We would to to court directions remand the cause the circuit with cap circuit of remittitur and vacate the court's order suffering pursuant pain to Wis. Stat. and 893.55(4)(d). * * v ^[*] sepa- forth, For the set we write reasons object majority's sponte rately inter- to first to sua pretation give of the statutes and its failure to parties opportunity argue an to brief the issue. We majority misinterpreted further conclude that the has imposed statutes invalidated the limits in the statutes. (concurring). join ¶ 235. E WILCOX, JON J. I majority opinion respects separately in all but write address the remittitur issue discussed the concur- rence of Chief Justice Abrahamson and Justice Crooks.1 The concurrence concludes that "the circuit court erro- neously ordering exercised its discretion in remittitur jury's pre-death pain suffering of the award." Con- clearly currence, However, the record here indi- appropriate cates that the circuit court considered the logical, evidence and set forth a rational basis for its misapplies such, decision. As the concurrence the "er- roneous exercise of discretion" standard of review. deferring proper Rather than to the circuit court's discretionary determination, the concurrence would judgment have this court substitute its own for that of separately the circuit Thus, court. I write restate "erroneous exercise of discretion" standard of review emphasize importance deferring and to to discre- tionary determinations of the circuit court when the provided logical, circuit court has on-the-record, ra- tionale for its decision.

¶ 236. The concurrence concludes that cir- "the cuit court failed to state the reason for the reduction of requisite particularity with the and therefore no deference is owed to the circuit court's determina- jury tion that the award was excessive." Concurrence, setting only portion 225. After forth a small 1We refer to the concurrence of Chief Justice Abrahamson simply Justice Crooks as "the concurrence." decision, remittitur its rationale behind circuit court's supposedly circuit court faults the concurrence the mentioning reducing damage only basis for one appropriate failing factors. other to consider award ¶¶ then under- concurrence Concurrence, 227-28. The independent and deter- of the record review an takes jury's supports the the record initio that mines ab ¶¶ damage As will be Concurrence, 229-33. award. wrong on both below, concurrence is demonstrated wrong on the facts. the law court that a circuit It is well established damage jury's determines may where it award remit the " supported by large to be 'is too the award Bruggink, 308, 326, 190 2dWis. v. evidence.'" Wester 1994) (Ct. (quoting App. v. Makowski 373 527 N.W.2d (I960)). 42, 103 N.W.2d907 Ehlenbach, 38, 11 2dWis. Steenberg 2d Jacque Homes, Inc., 209 Wis. v. See also (1997) ("Notwithstanding the 154 N.W.2d 605, 626, 563 power jury's has the circuit court discretion, the broad amount that to an of. . . the amount to reduce reasonable."). power The fair and is it determines was established remittitur to order circuit court 78, 91-92, 102 Co., 2d 10 Wis. Ins. v. Allstate Powers (1960).2 Computer Management Services, In N.W.2d Baptie Co., 206 2d Ash, & Wis. Hawkins, Inc. v. Co., 2d Insurance v.Allstate rule in Powers Stat. codified in Wis. (1960), is now 91-92, 102 N.W.2d 805.15(6) (1995-96), provides: which inadequate, a verdict is excessive determines that If a trial court during trial of error prejudiсe or as a result perversity or due to not (other damages), determine the court shall due to an error than reasonable, order and shall is a matter of law which as the amount days the damages, within 10 unless the issue of new trial on accept judgment option offered elects party to whom period accepted, option the time is not charged If the amount. 190-91, (1996), 557 N.W.2d 67 this the court reaffirmed Powers rule confirmed that the circuit court's decision a and, to order remittitur is act discretionary such, as appeal is reviewed on under the "erroneous standard, exercise of discretion" standard. Under this reviewing [a] court not circuit will reverse a court's discretionary if determination the record shows that discretion was in fact exercised and there exists a reasonable basis for the circuit court's determination resolving any after testimony direct conflicts in the in prevailing even party, reviewing favor the the court if would reached a have conclusion than the different circuit court. Builders, Yards, Carlson & Erickson Inc. v. Lampert Inc., (1995) 650, 669, 190 2dWis. 529 905 N.W.2d added). (emphasis As is true when dis reviewing any act, "[i]n instance cretionary any where the exercise of demonstrated, discretion has been a this court follows consistent and strong policy against interference with State, the of the . ." McCleary v. discretion trial court.. (1971).3 49 Wis. 2d 281, 182 N.W.2d 512 Thus, 238. an appellate court's review of a cir- cuit court's decision to order remittitur is limited to two 1) inquiries: determining whether the circuit court petitioning appeals appeal the court for leave to the order for 808.03(2) a new trial under ss. and 809.50 commences on the last day option period. State, Although McCleary v. 49 Wis. 2d 182 N.W.2d (1971), the was seminal case a regarding circuit court's sentencing discretion, reliance on present this decision the context particularly appropriate light of the fact the that McCleary explicitly reviewing court the a derived standards sentencing determination from standards used re when viewing remittitur civil decisions in cases. Id. at 277-78. As this court recognized McCleary, discretionary "all acts be are to reviewed" "in the same manner." Id. at 277. 2) examining appropriate evidence and

considered court identified for the bases that circuit whether Computer Mgmt. Servs., its are See decision reasonable. reviewing standard, 2d at Under 191. this Wis. may initio reverse a court not the record ab review order if the circuit court's circuit court's remittitur requirements. Id. at satisfies both of these decision Builders, 2d at Erickson 191-92; Carlson & Applying bar, case standards to the at these clearly analyzed that circuit indicates court record provided a on the record and relevant evidence basis for its decision. reasonable record First, must examine whether the we analyzed circuit court the relevant ("In indicates McCleary 49 2d at 277 the first See evidence. place, exercised."). fact there must be evidence that discretion was that an ab The concurrence concludes appropriate the initio standard of review because factors considered court failed to state what it circuit length the of time the deceased suffered. other than Particularly, ¶¶ the Concurrence, 228-29. concurrence "depth considering court for not the faults the circuit suffering. scope" Concurrence, and of the deceased's clearly record demonstrates However, the aspects of deceased's сourt all the the circuit pain considered scope depth suffering, including the thereof. a concurrence sets forth but 240. While the excerpt decision, of circuit court's remittitur

brief fact, circuit court's discus- concurrence, underlying its was facts decision sion of the relevant quite extensive: ill case, young child that became

In this we had ques- consideration of progressively so. Court's eight tion and that jury must be as to conscious pain suffering. young child, We have a we do not an have adult. Wedid not somebody able, have that was might, as an adult express they going what were through moments, in those days those last of her life.

All perceive we can do is what she was either the indicators, physical whether it vomiting, was the apparent whether it was worry. The last words that spoken by were her were related we can read several meanings that, expression love, into an of perhaps, an expression contemplated of death. We don't know. We certainly know that day the last or more her was of life got one trauma until she down to Hospital. Children's of We point know at that she was not conscious. She was conscious at least to placement —into placement ambulance, of that perhaps during that trip, and for got hours before. She up that morning, or say I should she awoke or was aware in early hours sick, that morning that very very, she was very sick. of She had night a troubled and that part was progression True, which spoken. was there was not early acute distress in stages certainly but there was progressive deteriorating distress which there was pain conscious and suffering.

It is difficult jury, for both the I believe as well as myself, to put sit and sign some dollar only which is the measure of how much pain and suffering consciously there was. But job that is the they that given were that I have. A court should not disturb their judgment clearly unless it apparent is they that beyond went point. some What point? is that It is not written in books. It is written except nowhere in discretion and judgment. a limitations are not that case I believe the

In this No, question that there's no girl had suffered. young how much —in this question is not had. And she had parents much her suffered is not how question much she mess. It was how it was a because suffered human so difficult for consciously. And we can—it's the shoes of number. We cannot wear beings place to a year-old year-old child or 60 person, be it a five another suffering, pain and compare It is so difficult adult. third-degree suffering from burns somebody is whether cases, those body, and I've seen percent of their on 43 that to a they compare are. I can't tragic how five ever that she is not may very well know year-old girl who to live going and never parents again going to see her will worry and concern just or expectancy, her life that, why day, does she know through this get she very, very difficult Those are the it hurt so bad. does jury go minds of a through the things that went through mine. is no is time. And there limiting factor here

The Appellate as our number, right proper nor is it reversible would be put reiterated to Courts have —it argued know, Mr. End had error, to have —if as we from suffering. prohibited are pain and We minutes of limited was a reality is that there doing so. But the unfortunately young child this of time which period And I suffering. pain and conscious had to endure this, its not in a case like I think it's that —and believe rather, but up come with jury should have figure what being excessive. think, point that point at what I $550,000 for what my mind that There is no doubt excessive. in this case was the evidence had been it became so. рoint where difficulty was the is where [sic] jury verdict it's this I do not believe an- necessarily that their nor entirety perverse, was solely the result perverse, or eight was question swer in a case like erase that one cannot emotion passion, this.

Considering factors, all the I that the plain- believe ought given tiff be an under the Powers option rule of accepting $100,000 a sum of pain for conscious and suffering and question eight answer given be option having under that rule of a new trial on dam- ages. added.)

(Emphasis Thus, while the circuit court did not dis- gruesome particulars journey cuss the of the deceased's death, towards the circuit court indicated that it was experienced great well aware that the deceased deal of pain suffering progress conscious that continued to passed away. specifically before she The court men- progressive tioned that it considered the deceased's vomiting, "physical trauma, and other indicators" of pain suffering during the last of her hours life. The scope court it demonstrated considered the nature and suffering by noting although of the deceased's early stages "there was not acute distress [,] . . . certainly progressive deteriorating there was distress of pain suffering." which there was conscious In addition, the court indicated that it was aware of the anxiety experienced fear and the deceased must have knowing wrong knowing not what was with her and not parents whether she would be with her or die. plainly ¶ 242. The record indicates that the cir- scope depth cuit court considered the of the suffering light physical deceased's conscious of her symptoms, anxiety, and the actual amount of time she consciously prong such, suffered. As the first discretionary standard is satisfied. Therefore, this is analyze fail[ed] not a case where the "circuit court supporting the evidence or set forth the reasons its [such that] reviewing give decision, court should no Mgmt. Com- to the circuit court's decision." deference puter Servs., 206 Wis. 2d at 191. cir- determine whether the Next, we must explanation provided a reasonable its

cuit court (dis- McCleary, 49 Wis. 2d at 277 remittitur decision. reasoning"). "contemplates process As the a cretion passage indicates, the circuit court reasoned that above suffering progressive despite nature of the the serious limiting experienced, the main factor was the deceased consciously time the deceased suffered. the amount of lost consciousness The court noted that the deceased as after entered the ambulance she was sometime she Hospital. being transported Children's This was began feeling roughly days first ill. two after she contrary concurrence, However, to the assertion upon only relied factor the court this was not ordering The court Concurrence, also remittitur. explained it child, deceased was a was that because the of what she con- determine the full extent difficult to sciously experienced, any record did not contain as the suffering. her verbalizations exercise of discretion 244. Under the erroneous agree if court does not with

standard, even this sup- circuit court as identified factors or bases porting nevertheless defer to decision, we must its uphold judgment determination if its court's circuit Wester, 190 decision are reasonable. the bases for its the circuit concurrence faults 2d at 327. While the Wis. "[g]iving unduly emphasizing factor, the time court for [s] . . . involve relevant factors to various consideration weight balancing weighing opеration, but the particular given particular in a case is factor to a be Cunning- determine." court, to court, trial not this (1977). State, 277, 282, 251 N.W.2d 76 Wis. 2d ham v. reviewing a circuit context of in the As has been stated discretionary sentencing "[t]he court's determination, weight given factor, however, to each. . . is left to the Thompson, trial court's broad discretion." State v. (Ct. 1992). App. 257, 264, 2d N.W.2d ¶ 245. Under this deferential review, standard of explanation the circuit court's for its decision is not Wester, unreasonable. See 190 Wis. 2d at 327. The lack pain of testimonial evidence from the victim to her as suffering and the limited amount of time the consciously evidence indicated she suffered are cer- tainly logical, legitimately relevant factors that bear upon the amount of the estate should reason- ably requirement such, recover. As the second for a proper discretionary act is satisfied because the circuit logical court's conclusion is "based on a rationale." McCleary, 49 Wis. 2d at 281. clearly

¶ 246. Thus, the record demonstrates that 1) the circuit court considered the relevant evidence 2) provided logical, rational basis for its decision. asserting Therefore, the concurrence errs in that it appropriate would be in this case to review the record judgment novo, de and substitute our own for that of ("An McCleary, the circuit court. See 49 Wis. 2d at 281 appellate supplant predilections court should not of own."). judge previously a trial with its As we have stated, if the record demonstrates that the circuit court considered the evidence and articulated a reasonable decision, basis for its this court "must not find an Mgmt. Computer erroneous exercise of discretion." Servs., 206 2d at 191. Finally, recognized "[i]n 247. this court has

applying [circuit] rule, the Powers court must set figure the amount of aat which it considers to be the most reasonable in view of the evidence, and may differ, since reasonable men the trial court's deter- range upheld if it falls within a mination will be v. Risk Mut. Lewandowski reasonableness." Preferred (1966). Co., Thus, 69, 78, 2d 146 N.W.2d505 Ins. 33 Wis. jury's opinion if that the award even this court is of excessive, was not we must nonetheless long determination, court's so as it defer to the circuit rendering properly deci exercised its discretion its Co., 257 Wis. sion. See Matosian v.Milwaukee Auto. Ins. (1950). viewing Even 599, 603, N.W.2d 555 light plaintiff, in the favorable to the evidence most estate's circuit court's decision to order remittitur of the suffering pre-death pain and from given the $550,000 $100,000 unreasonable, is not and the circuit court's reasonable record this case explanation. clearly sum, In here indicates the record appropriate evi-

that the circuit court considered the logical, for its dence and articulated a rational basis misapplies such, the "er- decision. As the concurrence of review. roneous exercise of discretion" standard following strong policy Rather than this court's discretionary deferring proper to the circuit court's determination, the concurrence would have this court judgment predilections for the substitute its own circuit court. I authorized to that Justices am state join in this T. PROSSER and DIANE S. SYKES

DAVID concurrence. (concur- BRADLEY, J. 250. ANN WALSH 895.04(4) constitutionality

ring). is of Wis. Stat. by interpretation jeopardized advanced the extreme good party majority. amici cause that no It is with argued argued interpretation. it be- such an No one clearly wrong. cause it is Moreover, the defense bar does jeopardize constitutionality caps. not want to of the Although join ¶ 251. I thе concurrence of Chief Justice Abrahamson and Justice Crooks to the as issues statutory interpretation sepa- remittitur, I write rately prepared join because I am not its constitu- correctly tional discussion. The concurrence notes the impediment addressing it faces the constitutional implications majority's position: of the the briefs and arguments in this case were framed to address less approach. radical The concurrence offers a discussion of implications majority's the constitutional deci- authority jurisdictions. sions reviews from other It recognizes constitutionality discussion being prefer offered without the benefit of I briefs. arguments fully developed wait until are questions. briefed before I address the constitutional Accordingly, respectfully I concur. The concurrence notes 893.55(4)(d) present limit in Wis. Stat. § is less than the 893.55(4)(d) 895.04(4). Thus, superseded § § if the $500,000 in 895.04(4), possible § to collect cap in it would not be minor society companionship of a damages for the loss of 893.55(4) (d) inflation, caught indexed for cap, until child However, $500,000 figure. analysis This is correct. up to the 895.04(4) law, §in are available under our view of the the limits immediately. meaning Thus, the case turns on the phrase "Notwithstanding the limits on noneconomic damages interprets under this subsection." The court "notwithstanding" mean, the word "In effect: lieu the limits on noneconomic under this sub- of against section, recoverable health care provider subject ... for death are to the limit 895.04(4)." By under contrast, the concurrence inter- prets mean, the word to in effect: "In addition to the subsection, limits damages under this against provider recoverable a health care . . . subject death are to the limit under s. 895.04(4)." acknowledge meaning ¶ 37. We that the of "not- withstanding" by According itself is not clear. to The Heritage Dictionary English Language American (3d 1992), "notwithstanding" spite ed. means "in Turning Dictionary, of." to Black's Law "notwithstand- ing" preposition: "Despite, spite is listed as a of ." (7th 1999). Dictionary Black's Law Dictionary A ed. In Legal Usage, "notwithstanding" Modern interesting described as "an DRAFTING, word. In it commonly 'despite,' spite 'although' of,' means 'in appears 'Notwithstanding in sentences such as this one: § 3.5, the limitations contained in Mondraff will be option quote competitive offered the first terms and Bryan Dictionary conditions to Nuboil.'" A Garner, A. (2d 1995). Legal Usage Modem ed.

Notes

See notes supra. 41, 42, 13.92(l)(b)2. Wis. Stat. 47Legislative Analysis Bureau of Assembly Reference Bill 36. compelling law, much more indicator of what the is a legislation private than meant communications the existing speculating legis- legislator a what with about light "arguably" "presumably" in of a lation or meant totally interpreting a different statute. case Additionally, quoted in cited and case majority support submits the both memoranda that contrary. theory In v. National of its holds to the York plaintiffs Co., that Ins. the contended each Continental parent of was entitled to recover loss statutory society companionship up limit. to the argument ‍‌‌‌​​​​​‌‌‌​​‌‌‌‌​​​​‌​​‌​​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‍rejected that under The court this held recovery by statute, was limited among statutory divided and the sum was be statute statutorily defined of claimants: of class members $50,000 Stats., 895.04(4), limit of that the sec. We hold society companionship in a for loss of by spouse person death action is recoverable of living by class deceased, spouse or if no as sec. person children of the deceased defined the class living 895.04(2), if children no are added).48 parents person deceased (emphasis has heard Moreover, this court cases 893.55(4)(f) involving increased and the Wis. Stat. cases limits death medical who most involved with demonstrate those were

Case Details

Case Name: Maurin v. Hall

Court Name: Wisconsin Supreme Court

Date Published: Jul 2, 2004

Citation: 682 N.W.2d 866

Docket Number: 00-0072

Court Abbreviation: Wis.