Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91 (Wis. 7/7/2006), 2004AP2592.

• Citation: 2006 WI 91
• Decision Date: 07 July 2006
• Docket Number: No. 2004AP2592.,2004AP2592.
• Parties: Robert W. Bartholomew, Individually and as Special Administrator of the Estate of Helen Bartholomew, Plaintiff-Appellant-Petitioner, v. Wisconsin Patients Compensation Fund and Compcare Health Services Insurance Corporation, Defendants-Respondents, Prakash Shah, M.D. and The Medical Protective Company, Defendants.
• Court: United States State Supreme Court of Wisconsin

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2006 WI 91 Robert W. Bartholomew, Individually and as Special Administrator of the Estate of Helen Bartholomew, Plaintiff-Appellant-Petitioner,
v.
Wisconsin Patients Compensation Fund and Compcare Health Services Insurance Corporation, Defendants-Respondents, Prakash Shah, M.D. and The Medical Protective Company, Defendants. No. 2004AP2592. Supreme Court of Wisconsin. Opinion Filed: July 7, 2006.

Appeal from the Circuit Court, Kenosha County, Wilbur W. Warren, III, Judge.

REVIEW of a decision of the Court of Appeals. Reversed and remanded.

For the plaintiff-appellant-petitioner, there were briefs by Timothy J. Aiken, James C. Gallanis, and Aiken & Scoptur, S.C., Milwaukee; Paul Gagliardi and Gagliardi, O'Brien, Olson & Capelli, Salem, and oral argument by Timothy J. Aiken.

For the defendant-respondent Wisconsin Patients Compensation Fund, there was a brief by Steven P. Means, Roisin H. Bell, Michael A. Hughes, and Michael Best & Friedrich LLP, Madison, and oral argument by Steven P. Means.

An amicus curiae brief was filed by William C. Gleisner, III and Law Offices of William C. Gleisner III, Milwaukee; Lora A. Kaelber and Gray & End LLP, Milwaukee; Linda Meagher and Habush Habush & Rottier SC, Milwaukee on behalf of the Wisconsin Academy of Trial Lawyers.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1 This is a review of a decision of the court of appeals summarily affirming the judgment and order of the circuit court for Kenosha County, Wilbur W. Warren III, Judge.¹ This lawsuit arose because Helen Bartholomew died as a result of medical malpractice, leaving her husband, Robert Bartholomew, surviving. The plaintiff is Robert Bartholomew individually and as special administrator of the Estate of Helen Bartholomew. The defendants are the Wisconsin Patients Compensation Fund,² Compcare Health Services Insurance Corporation, Doctor Prakash Shah, and the Medical Protective Company.³

¶ 2 The issue in the present case is whether the following awards collectively are limited to the maximum allowed under the cap on wrongful death actions: the jury award for noneconomic damages to the estate of Helen Bartholomew for her predeath pain, suffering, and disability; the jury award to Robert Bartholomew for noneconomic damages for the predeath loss caused by his wife's disability; and the jury award to Robert Bartholomew for noneconomic damages for his postdeath loss of his wife's society and companionship.

¶ 3 The issue, in other words, is whether the court should adhere to Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, which held that when a victim of medical malpractice dies, the cap for wrongful death actions limits all noneconomic damages.⁴ A majority of the court, namely the author of this opinion and Justices Bradley, Crooks, and Butler, concludes that Maurin was wrongly decided and must be overturned. Justice Butler so decides on different grounds from those stated in this opinion.

¶ 4 In addition, a majority of the court, the same four justices, agrees that the estate of Helen Bartholomew is entitled to the full $500,000 award for Helen Bartholomew's predeath pain and suffering, that Robert Bartholomew individually is entitled to the full $350,000 award for his noneconomic damages for his predeath loss of his wife's society and companionship, and that Robert Bartholomew individually is entitled to the full $350,000 award for his postdeath loss of his wife's society and companionship (wrongful death loss of society and companionship). Justice Butler reaches this result on different grounds.

¶ 5 Three justices, namely the author of this opinion and Justices Bradley and Crooks, join this lead opinion.

¶ 6 The challenge to Maurin in the present case is not to that part of Maurin holding that, when medical malpractice results in death, the wrongful death cap⁵ applies to a claimant's noneconomic damages for postdeath loss of society and companionship. Nor is any challenge made in the instant case to the constitutionality of applying the wrongful death cap to a claimant's noneconomic damages for postdeath loss of society and companionship in a medical malpractice case.⁶ The present case therefore leaves undisturbed that part of Maurin that holds the wrongful death cap applicable to a claimant's noneconomic damages for postdeath loss of society and companionship in a medical malpractice action.

¶ 7 To better understand the issue presented, this opinion sets forth the jury award for the noneconomic damages and the circuit court's application of a cap.

¶ 8 The jury awarded a total of $1,200,000 for noneconomic damages as follows:

• $500,000 to the estate of Helen Bartholomew for her noneconomic damages for predeath pain and suffering;

• $350,000 to Robert Bartholomew individually for his noneconomic damages for his predeath loss of his wife's society and companionship; and

• $350,000 to Robert Bartholomew individually for his noneconomic damages for his postdeath loss of his wife's society and companionship.

¶ 9 On July 1, 2004, the circuit court issued a written decision, holding that the noneconomic damages were limited to the cap provided by the medical malpractice cap statute,⁷ that is, Wis. Stat. § 893.55(4)(d). At that time § 893.55(4)(d) capped medical malpractice damages at $422,632. The circuit court thus reduced the $1,200,000 total damage award for noneconomic damages to $422,632, as the defendants requested.

¶ 10 On July 2, 2004, Maurin was mandated. In Maurin, the court held that when a victim of medical malpractice dies, all noneconomic damages are capped by the wrongful death cap.

¶ 11 After this court issued its decision in Maurin, and upon motion of the defendants, the circuit court revised its judgment to comply with Maurin and reduced the three jury awards for noneconomic damages collectively to $350,000, the wrongful death cap. As a result of the revised judgment, Robert Bartholomew argues that in effect he received his entire award for noneconomic damages for his claim for his postdeath loss of his wife's society and companionship ($350,000), but he received nothing for his predeath claim for his loss of his wife's society and companionship and the estate received nothing for five years of Helen Bartholomew's predeath pain and suffering.

¶ 12 Relying on Maurin, the court of appeals summarily affirmed the revised judgment.

¶ 13 Robert Bartholomew challenges Maurin as erroneously holding that the wrongful death cap on noneconomic damages applies not only to noneconomic damages for claims for postdeath loss of society and companionship, but also to noneconomic damages for his claim as special administrator of Helen Bartholomew's estate for Helen Bartholomew's predeath pain and suffering and to Robert Bartholomew's individual claim for noneconomic damages for the predeath loss of society and companionship.

¶ 14 Again, Robert Bartholomew does not challenge Maurin's application of the wrongful death cap to his noneconomic damages for his postdeath loss of his wife's society and companionship. Rather, he asserts that his awards of noneconomic damages for predeath claims are governed by the medical malpractice cap established in § 893.55(4)(d), namely $422,632.⁸ Because the medical malpractice cap in § 893.55(4)(d) was declared unconstitutional in Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, Robert Bartholomew argues that for the purposes of the instant action no cap exists on his award of noneconomic damages for predeath claims.⁹

¶ 15 The defendants contend that Maurin was correctly decided and is settled law and that the court should adhere to the Maurin decision and affirm the decision of the court of appeals in the present case.

¶ 16 Four justices, namely the author of this opinion and Justices Bradley, Crooks, and Butler, agree with Robert Bartholomew that Maurin must be overturned. Three justices, namely the author of this opinion and Justices Bradley and Crooks, agree with the position advocated by Robert Bartholomew, which is the position taken by the concurring opinion in Maurin.¹⁰ These three justices, in this opinion, conclude that Maurin's interpretation of Wisconsin's medical malpractice and wrongful death statutes as imposing a single global wrongful death cap on all noneconomic damages is flawed because it fails to take into account the well-established distinction in Wisconsin tort law between actions for noneconomic damages for predeath claims and a "wrongful death" claim, that is, a claim for noneconomic damages for postdeath loss of society and companionship. This opinion concludes that the legislature adopted two caps that apply in the event of death resulting from medical malpractice: a medical malpractice cap for noneconomic damages for predeath claims and a wrongful death cap for noneconomic damages for postdeath claims. Claimants may thus recover for these two types of claims up to the limits of each applicable cap. Justice Butler, writing separately, concludes that there is a "global" cap in medical malpractice cases, but, unlike the Maurin majority, concludes that the "global" cap is the medical malpractice cap, not the wrongful death cap.¹¹

¶ 17 The conclusions in this opinion are compelled by the principles of tort law, the text of the medical malpractice and wrongful death statutes and the statutory and legislative histories, and the policy the legislature enunciated in enacting Wis. Stat. § 893.55(4)(f), namely to place medical malpractice wrongful death claims "on the same footing" as wrongful death claims in other tort actions.¹²

¶ 18 Accordingly, four justices, namely the author of this opinion and Justices Bradley, Crooks, and Butler, reverse the decision of the court of appeals and overturn any contrary holding in Maurin. We remand the matter to the circuit court to reinstate each jury award for noneconomic damages, though Justice Butler reaches this result on different grounds....