Maurin v. Hall, 00-0072.

CourtUnited States State Supreme Court of Wisconsin
Citation682 N.W.2d 866,2004 WI 100,274 Wis.2d 28
Docket NumberNo. 00-0072.,00-0072.
PartiesYvette M. MAURIN, as Personal Representative of the Estate of Shay Leigh Maurin, deceased, Plaintiff-Respondent-Cross-Appellant, Yvette M. Maurin, Individually and as Personal Representative of the Estate of Shay Leigh Maurin, and Joseph Maurin, Plaintiff-Respondent, Quad/Graphics, Inc., Plaintiff, v. Gordon HALL, M.D., Physicians Insurance Company of Wisconsin, Inc., and Patients Compensation Fund, Defendants-Appellants-Cross-Respondents.
Decision Date02 July 2004

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

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

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

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


This case comes before us on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (2001-02).1 Yvette Maurin, individually and in her capacity as personal representative of her daughter's estate, and Joseph Maurin, in his individual capacity, brought this lawsuit to recover for medical malpractice and wrongful death of their five-year-old daughter, Shay Maurin.

¶ 2. The issues certified for our review relate to damage awards for medical malpractice that results in death. We restate the two issues certified by the court of appeals and pose a third issue presented by the parties:

¶ 3. First, may the plaintiffs in a medical malpractice action, where there is a death caused by medical negligence, recover the limit on noneconomic damages for both medical negligence and wrongful death?

¶ 4. Second, is the limit on noneconomic damages in a medical malpractice wrongful death case constitutional?

¶ 5. Third, did the circuit court erroneously exercise its discretion in ordering a remittitur of the verdict in favor of the estate for pre-death pain and suffering, from $550,000 to $100,000.

¶ 6. We conclude that there is a single cap on noneconomic damages recoverable from health care providers for medical malpractice when a patient dies. The cap is the dollar amount listed for the deceased patient in Wis. Stat. § 895.04(4). Claimants eligible to make a wrongful death claim under Wis. Stat. § 655.007 are entitled to make separate claims for the amount listed in Wis. Stat. § 895.04(4) for a death that occurred during the period from May 25, 1995, through April 27, 1998, because of this court's decisions in Rineck v. Johnson, 155 Wis.2d 659, 456 N.W.2d 336 (1990), rev'd on other grounds, Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis.2d 549, 514 N.W.2d 399 (1994),

and Jelinek v. St. Paul Fire & Cas. Ins. Co., 182 Wis.2d 1, 512 N.W.2d 764 (1994).

¶ 7. We also conclude that the limit on noneconomic damages in a medical malpractice wrongful death case is constitutional. ¶ 8. Our answers to the first two questions make it unnecessary to address the close question of remittitur in this case. Accordingly, the decision of the circuit court is reversed and the cause remanded for proceedings consistent with this opinion.


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

¶ 10. During the first few days of March 1996, Shay had not been feeling well. She was lethargic, drinking fluids all day and eating poorly. Yvette Maurin took her daughter to the General Clinic of West Bend on March 5, 1996. Physician Assistant Randy Purcell diagnosed Shay with an ear infection and prescribed antibiotics. Purcell also advised that Shay should have a fingerstick blood test — used to check for diabetes — if her symptoms did not improve.

¶ 11. Shay's condition worsened rapidly over the next 24 hours. She was unable to eat, she vomited and dry-heaved, and the fruity odor of her breath led her mother to fear she might have diabetes. The mother brought Shay to Hartford Memorial Hospital late in the evening of March 6. By this point, Shay's diabetes had progressed to acute diabetic ketoacidosis. Dr. Gordon Hall attended to Shay, but failed to make the diagnosis of diabetes mellitus or acute diabetic ketoacidosis.

¶ 12. The next morning, on March 7, Shay returned to Hartford Memorial Hospital in serious pain. Dr. David Madenberg diagnosed the acute diabetic ketoacidosis and attempted treatment before transferring Shay to Children's Hospital of Wisconsin. Shay lost consciousness during the ambulance ride to the new hospital and died the next day.

¶ 13. In 1999 a Washington County jury found that Dr. Hall was negligent in his care of Shay Maurin and that his negligence caused her death. The jury awarded Shay's estate $550,000 for her pre-death pain and suffering and $2,500,000 to her parents as wrongful death damages for their loss of society and companionship.

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

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

¶ 16. The court of appeals held the case pending decisions in three relevant cases: Neiman v. Am. Nat'l Prop. & Cas. Co., 2000 WI 83, 236 Wis.2d 411, 613 N.W.2d 160 (holding unconstitutional retroactive application of an increased cap on noneconomic damages in wrongful death actions to claims that accrued before the effective date of the new cap); Guzman v. St. Francis Hosp., Inc., 2001 WI App 21, 240 Wis.2d 559, 623 N.W.2d 776 (holding constitutional a cap on noneconomic damages in medical malpractice actions); and Schultz v. Natwick, 2002 WI 125, 257 Wis.2d 19, 653 N.W.2d 266 (applying Neiman to all cases involving the retroactive increase of the cap on noneconomic damages in wrongful death cases).

¶ 17. After these decisions, the parents agreed that the issue of retroactive application of the increased wrongful death cap had been determined against them, and that issue is no longer in the case.

A. Limitation on Noneconomic Damages From Medical Malpractice Resulting in Wrongful Death

¶ 18. The first issue to be determined is what limit or limits apply to noneconomic damages in medical malpractice wrongful death. There are three possibilities:

1. Dr. Hall contends that the parents' recovery for loss of society and companionship is limited to a total of $150,000 and that the entire award of noneconomic damages (including the parents' wrongful death award and any conscious pain and suffering award to the estate) cannot exceed the limit in Wis. Stat. § 893.55(4)(d), which, adjusted for inflation, is $381,428.
2. The parents contend that the estate may recover noneconomic damages for Shay's pain and suffering before death up to the limit set for medical malpractice under Wis. Stat. § 893.55(4)(d) and the parents may recover for loss of society and companionship up to the limit set for wrongful death under Wis. Stat. § 893.55(4)(f), which references Wis. Stat. § 895.04(4). Absent the issue of remittitur, the effect of this theory would produce damages of $381,428 plus $150,000, for a total of $531,428.
3. A third interpretation is that, in a medical malpractice case, there is a single cap on noneconomic damages. The amount of the cap is determined by whether the patient survives the malpractice or whether the patient dies. When the patient survives the medical malpractice, the cap is contained in Wis. Stat. § 893.55(4)(d). When the patient dies, the cap is contained in Wis. Stat. § 895.04(4). In cases where medical malpractice leads to death, the wrongful death cap applies in lieu of — not in addition to — the medical malpractice cap.

¶ 19. We conclude that the third interpretation constitutes the correct reading of the statutes. However, our decisions in Rineck, 155 Wis.2d 659, 456 N.W.2d 336, and Jelinek, 182 Wis.2d 1, 512 N.W.2d 764, cause...

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