Guzman v. St. Francis Hospital, Inc., No. 98-2710.

• Court: Court of Appeals of Wisconsin
• Citation: 240 Wis.2d 559,2001 WI App 21,623 N.W.2d 776
• Docket Number: No. 98-2710.
• Parties: Audrey GUZMAN, Nicanor Guzman, Jessica Guzman, a minor, and Steven Guzman, a minor, by their Guardian ad Litem, Plaintiffs-Respondents, v. ST. FRANCIS HOSPITAL, INC., American Continental Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Appellants, ST. FRANCIS HOSPITAL, INC., Defendant-Third-Party Plaintiff, James SULLIVAN, M.D., Physicians Insurance Company of Wisconsin, Richard Fitzpatrick, M.D., and Southeastern Emergency Medical Services, S.C., Third-Party Defendants-Appellants, XY & Z INSURANCE COMPANY, Third-Party Defendant.
• Decision Date: 19 December 2000

240 Wis.2d 559
2001 WI App 21
623 N.W.2d 776

Audrey GUZMAN, Nicanor Guzman, Jessica Guzman, a minor, and Steven Guzman, a minor, by their Guardian ad Litem, Plaintiffs-Respondents,¹
v.
ST. FRANCIS HOSPITAL, INC., American Continental Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Appellants,
ST. FRANCIS HOSPITAL, INC., Defendant-Third-Party Plaintiff,
James SULLIVAN, M.D., Physicians Insurance Company of Wisconsin, Richard Fitzpatrick, M.D., and Southeastern Emergency Medical Services, S.C., Third-Party Defendants-Appellants,
XY & Z INSURANCE COMPANY, Third-Party Defendant

No. 98-2710.

Court of Appeals of Wisconsin.

Oral argument September 5, 2000.

Decided December 19, 2000.

240 Wis.2d 563

On behalf of the defendants-appellants, St. Francis Hospital, Inc. and American Continental Insurance Company, the cause was submitted on the briefs of John A. Nelson and Timothy W. Feeley of von Briesen, Purtell & Roper, S.C., Milwaukee

On behalf of the third-party defendant-appellant, Richard Fitzpatrick, M.D., the cause was submitted on the briefs of Lori Gendelman and Jeffrey J.P. Conta of Otjen, Van Ert, Lieb & Weir, S.C., Milwaukee.

On behalf of the third-party defendant-appellant, James Sullivan, M.D., the cause was submitted on the briefs of Paul J. Kelly and Amy J. Doyle of Schellinger & Doyle, S.C., Waukesha.

240 Wis.2d 564

On behalf of the defendant-appellant, Wisconsin Patients Compensation Fund, the cause was submitted on the briefs of Steven J. Caulum of Bell, Gierhart & Moore, S.C., Madison and William H. Levit, Jr. and Michael B. Apfeld of Godfrey & Kahn, S.C., Milwaukee. There was oral argument by Michael B. Apfeld.

On behalf of the third-party defendant-appellant, Southeastern Emergency Medical Services, S.C., the cause was submitted on the briefs of Mary Lee Ratzel, Peter F. Mullaney and Sherry A. Knutson of Peterson, Johnson & Murray, S.C., Milwaukee. There was oral argument by John S. Skilton of Foley & Lardner, Madison.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Ted M. Warshafsky of Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee and Edward E. Robinson of Cannon & Dunphy, Brookfield. There was oral argument by Ted M. Warshafsky.

Before Fine, Schudson and Curley, JJ.

¶ 1. FINE, J.

Audrey Guzman was seriously injured by what she claims was the negligence of the health-care providers named in the caption. The trial court held in a non-final order that a cap imposed by the legislature on the recovery of noneconomic damages in medical malpractice actions within the scope of WIS. STAT. Ch. 655 was unconstitutional. The health-care providers, their respective insurance carriers, and the Wisconsin Patients Compensation Fund appeal.² We reverse.

240 Wis.2d 565

I.

¶ 2. The cap on the recovery of noneconomic damages in health-care-provider malpractice cases involves the application of several statutes. WISCONSIN STAT. § 655.017 provides:

The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider if the act or omission occurs on or after May 25, 1995, and for acts or omissions of an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits under s. 893.55(4)(d) and (f).

The limitations referred to in § 655.017 are as follows—first WIS. STAT. § 893.55(4)(d):

The limit on total noneconomic damages for each occurrence under par. (b) on or after May 25, 1995, shall be $350,000 and shall be adjusted by the director of state courts to reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments.

WISCONSIN STAT. § 893.55(4)(f) provides:

Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04(4). If damages in excess of the limit

240 Wis.2d 566

under s. 895.04(4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04(4).³

WISCONSIN STAT. § 895.045 is Wisconsin's comparative negligence statute. As material here, it provides:

(1) COMPARATIVE NEGLIGENCE. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.

240 Wis.2d 567

WISCONSIN STAT. § 893.55(4)(c) requires an assessment of noneconomic damages by either the judge or the jury without regard to the cap, with the subsequently entered judgment conforming to the cap's limits

A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.

¶ 3. The trial court held that the legislature could not constitutionally limit the amount of noneconomic damages that a person injured by a health-care provider covered by WIS. STAT. ch. 655 can recover. It ruled that the cap violated both the right to a trial by jury recognized by the Wisconsin constitution, and the separation of powers between the judicial and legislative branches.

II.

[1, 2]

¶ 4. Whether a statute is constitutional is decided by an appellate court de novo. See Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 110, 613 N.W.2d 849, 857. Statutes are assumed to be constitutional unless shown not to be. We do not write on a clear slate:

240 Wis.2d 568

Statutes are presumptively constitutional. The court indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statute's constitutionality, we must resolve that doubt in favor of constitutionality.

To overcome this strong presumption, the party challenging a statute's constitutionality must demonstrate that the statute is unconstitutional beyond a reasonable doubt. It is not sufficient for the challenging party merely to establish doubt about a statute's constitutionality, and it is not enough to establish that a statute probably is unconstitutional.

The presumption of statutory constitutionality is the product of our recognition that the judiciary is not positioned to make the economic, social, and political decisions that fall within the province of the legislature. The duty of the court is only to determine if the legislation clearly and beyond doubt offends a provision of the state constitution that specifically circumscribes legislative action.

Aicher, 2000 WI 98 at ¶ 18-20 (internal citations omitted).⁴

240 Wis.2d 569

¶ 5. The legislature has made a policy determination that the efficient and effective provision of

240 Wis.2d 570

health care in Wisconsin requires not only a restructuring of medical-malpractice law in this state, see State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 508-509, 261 N.W.2d 434, 442 (1978), but also that "[t]aming the costs of medical malpractice" by limiting the right of patients injured by medical malpractice to recover for their injuries "ensur[es] access to affordable health care" for all, and that this is a "legitimate legislative

240 Wis.2d 571

objective[]." Aicher, 2000 WI 98 at ¶ 78 (upholding statute of repose that barred right to file suit before injured patient aware of injury). Although the Guzmans dispute that a health-care crisis justified these legislative responses, this assessment is for the legislature and not for us: "Whether the perception of a malpractice crisis was inflated or illusory makes little difference because the perceived crisis led the legislature to make a policy determination about the costs of health care." Id., 2000 WI 98 at ¶ 63; see also Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, ¶ 31, 236 Wis. 2d 316, 336, 613 N.W.2d 120, 131, ("medical malpractice actions are substantially distinct from other tort actions"). Additionally, counsel for the Guzmans candidly conceded at oral argument that noneconomic damages functioned essentially as a pool from which the attorney's fees of personal-injury plaintiffs could be paid, thus preserving—to a greater or lesser extent—the use of an award of economic damages to make that plaintiff whole. Looked at in this light, permitting (and, here, limiting) an award of noneconomic damages...