Mayo v. Wis. Injured Patients & Families Comp. Fund

Decision Date27 June 2018
Docket NumberNo. 2014AP2812,2014AP2812
Citation2018 WI 78,914 N.W.2d 678,383 Wis.2d 1
Parties Ascaris MAYO and Antonio Mayo, Plaintiffs-Respondents-Cross-Appellants, United Healthcare Insurance Company and Wisconsin State Department of Health Services, Involuntary-Plaintiffs, v. WISCONSIN INJURED PATIENTS AND FAMILIES COMPENSATION FUND, Defendant-Appellant-Cross-Respondent-Petitioner, Proassurance Wisconsin Insurance Company, Wyatt Jaffe, MD, Donald C. Gibson, Infinity Healthcare, Inc. and Medical College of Wisconsin Affiliated Hospitals, Inc., Defendants.
CourtWisconsin Supreme Court

For the defendant-appellant-cross-respondent-petitioner, there were briefs filed by Kevin M. St. John, Roisin H. Bell, John N. Giftos, and Bell Giftos St. John LLC, Madison. There was an oral argument by Kevin M. St. John.

For the plaintiffs-respondents-cross-appellants, there was a brief filed by Susan R. Tyndall, Daniel A. Rottier, James M. Fergal, and Habush Habush & Rottier, S.C., Madison. There was an oral argument by Daniel A. Rottier.

An amicus curiae brief was filed on behalf of the Wisconsin Academy of Family Physicians, the Wisconsin Academy of Ophthalmology, Inc., the Wisconsin Chapter of the American College of Emergency Physicians, Inc., the Wisconsin Orthopaedic Society, the Wisconsin Psychiatric Association, Inc., the Wisconsin Radiological Society, Inc., the Wisconsin Society of Anesthesiologists, Inc., and the Wisconsin Society of Plastic Surgeons, Inc. by Guy DuBeau and Axley Brynelson, LLP, Madison.

An amicus curiae brief was filed on behalf of the State of Wisconsin by Misha Tseytlin, solicitor general, Brad D. Schimel, attorney general, and Amy C. Miller, assistant solicitor general. There was an oral argument by Misha Tseytlin, solicitor general.

An amicus curiae brief was filed on behalf of Wisconsin Hospital Association by Sara J. MacCarthy, Timothy W. Feeley, and Hall, Render, Killian, Heath & Lyman, P.C., Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin Medical Society and American Medical Association Litigation Center by Anne Berleman Kearney and Appellate Consulting Group, Milwaukee.

An amicus curiae brief was filed on behalf of The Physician Insurers Association of America by Samuel J. Leib, Brent A. Simerson, Brenden M. Leib, and Leib Knott Gaynor LLC, Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin Manufacturers and Commerce by Lucas T. Vebber, Corydon J. Fish, and Wisconsin Manufacturers and Commerce, Madison.

An amicus curiae brief was filed on behalf of the Wisconsin Association for Justice by William C. Gleisner, III and Law Offices of William Gleisner, Brookfield, with whom on the brief were J. Michael End and End, Hierseman & Crain, LLC, Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin Defense Counsel by Justin F. Wallace and Nash, Spindler, Grimstad, & McCracken, LLP, Manitowoc, with whom on the brief were Monte E. Weiss, Charles W. Kramer, and Weiss Law Office SC, Mequon.

An amicus curiae brief was filed on behalf of the American Tort Reform Association, the Wisconsin Civil Justice Council, the National Federation of Independent Business, the Chamber of Commerce of the United States, and the Wisconsin Insurance Alliance by James A. Friedman, Bryan J. Cahill, and Godfrey & Kahn, S.C., Madison.


¶1 Our review considers whether the legislatively-enacted cap of $750,000 (the cap) on noneconomic damages for victims of medical malpractice that is set out in Wis. Stat. § 893.55 (2015-16)1 is unconstitutional facially or as applied, based on equal protection and due process grounds. In reliance on Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, the court of appeals concluded that the cap was facially unconstitutional.2 The court of appeals did not address whether § 893.55 was unconstitutional as applied to Ascaris and Antonio Mayo (the Mayos). However, the circuit court had concluded that the $750,000 cap on noneconomic damages was unconstitutional as applied to the Mayos.3

¶2 We conclude that rational basis is the proper standard by which to judge the constitutionality of Wis. Stat. § 893.55 ; that § 893.55 is facially constitutional and constitutional as applied to the Mayos; and that Ferdon erroneously invaded the province of the legislature and applied an erroneous standard of review. Accordingly, we reverse the court of appeals' decision, overrule Ferdon, and conclude that the $750,000 cap on noneconomic damages in medical malpractice judgments and settlements is constitutional both facially and as applied to the Mayos.

¶3 Therefore, we reverse the court of appeals and remand to the circuit court to impose the $750,000 cap on noneconomic damages.

A. The Guaranteed Payment System

¶4 In 1975, as a result of what was deemed to be a "medical malpractice crisis," the legislature established a comprehensive system of guaranteed payments and controlled liability. The Wisconsin Injured Patients and Families Compensation Fund (the Fund) was created at that time as part of the legislature's comprehensive system. Wis. Patients Comp. Fund v. Wis. Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 607, 547 N.W.2d 578 (1996) (hereinafter WHCLIP ). In addition to guaranteeing payment and controlling liability, the legislature established required procedures for processing and paying claims that alleged medical malpractice. § 1, ch. 37, Laws of 1975.

¶5 Chapter 655 "provide[s] the exclusive procedure for a person to pursue a malpractice claim against a health care provider." Rouse v. Theda Clark Med. Ctr., Inc., 2007 WI 87, ¶ 35, 302 Wis. 2d 358, 735 N.W.2d 30. Under Wisconsin's comprehensive system, each health care provider must maintain liability coverage of at least $1 million per claim and $3 million for all claims in a given policy year, Wis. Stat. § 655.23(4)(b) 2, or qualify as a self-insurer, § 655.23(3)(a).4 In addition to maintaining liability insurance, health care providers are required to participate in the Fund by paying annual assessments. Wis. Stat. § 655.27(3)(a).

¶6 The combination of required insurance and required assessments by the Fund, which health care providers must pay, creates a mechanism for guaranteed payment to those who are injured by medical malpractice. This is so because the Fund pays medical malpractice claims in excess of the health care provider's insurance coverage amount. Wis. Stat. § 655.27(1). "In other words, the Fund is liable for payments ‘after a health care provider's statutorily mandated liability coverage limits are exceeded.’ " Wis. Med. Soc'y v. Morgan, 2010 WI 94, ¶ 12, 328 Wis. 2d 469, 787 N.W.2d 22 (quoting WHCLIP, 200 Wis. 2d at 613, 547 N.W.2d 578 ).5

¶7 In regard to those injured by medical malpractice, the Fund guarantees payment of 100 percent of all settlements and judgments for economic damages arising from medical malpractice. However, payments by the Fund for noneconomic damages are limited to $750,000 for each claim.6 Wis. Stat. § 893.55(4)(d)1. So long as health care providers maintain the required insurance and annually contribute to the Fund, they are not personally liable for damages arising from medical malpractice. Wis. Stat. § 655.23(5).7

¶8 From the time the Fund was created, July 1, 1975, until March of 2005,8 the Fund paid approximately $586,300,000 in claims. Morgan, 328 Wis. 2d 469, ¶ 21, 787 N.W.2d 22. By December 31, 2007, the total claim payments had increased to $666,100,000. Id. Through December 31, 2017, the fund has paid approximately $866,100,000 in claims. 2017 Functional and Progress Report, Wis. Office of the Comm'r of Ins. (Feb. 23, 2018), The number of Fund claims begun in any given year fluctuates. In 2013-14, there were 83 pending potential claims against the Fund, followed just two years later in 2015-16 with 40 potential claims, and the most recent report for 2016-17 shows 55 potential claims against the Fund. Id.

¶9 When the Fund was created in 1975, there was no cap on noneconomic damages. It was not until 1986 that the legislature capped noneconomic damages. The 1986 cap was $1 million. 1985 Wis. Act 340, §§ 30, 72. The initial cap expired on January 1, 1991. Id.

¶10 After the expiration of the 1986 cap on noneconomic damages, the cost of insurance for health care providers rose, as did health care costs. See Maurin v. Hall, 2004 WI 100, ¶ 65 n.7, 274 Wis. 2d 28, 682 N.W.2d 866, overruled on other grounds by Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216. In response, the legislature again enacted a cap on noneconomic damages, this time setting the limit at $350,000. 1995 Wis. Act 10, §§ 5, 9.

¶11 The $350,000 cap remained in place until we concluded that it was unconstitutional in Ferdon.9 Following Ferdon, the legislature acted to impose the $750,000 cap on noneconomic damages that is before us. 2005 Wis. Act 183, §§ 1, 7. For all other damages, payment is guaranteed to the injured party for 100 percent of a judgment or settlement.

¶12 In creating the $750,000 cap for noneconomic damages, the legislature undertook substantial investigative efforts to assure that any future legislation in regard to a cap would be constitutionally appropriate. The assembly established a "Medical Malpractice Task Force" with the aim of implementing revisions to the law in response to the court's Ferdon decision. The task force found that noneconomic damages are an aspect of recovery that often is based on emotion and not on any predictable standard. The task force said that "[a] reasonable cap on noneconomic damages serves as a rational balance [in] the Legislature's plan to ensure that successful malpractice plaintiffs are able to recover appropriate damages." Further, "[m]edical liability reform is part of a broad legislative strategy designed to keep health care...

To continue reading

Request your trial
30 cases
  • State ex rel. Kaul v. Prehn
    • United States
    • Wisconsin Supreme Court
    • June 29, 2022
    ...68, ¶27, 326 Wis. 2d 444, 786 N.W.2d 385 ("The challenger [in a constitutional claim] has the burden of proof."); Mayo v. Wis. Injured Patients and Fams. Comp. Fund, 2018 WI 78, ¶25, 383 Wis. 2d 1, 914 N.W.2d 678 ("[W]e presume that ... statute[s] [are] constitutional."); Halverson, 395 Wis......
  • Doe v. Madison Metro. Sch. Dist.
    • United States
    • Wisconsin Supreme Court
    • July 8, 2022
    ...1 of the Wisconsin Constitution as affording the same protections as are provided by the Fourteenth Amendment. Mayo v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78, ¶35, 383 Wis. 2d 1, 914 N.W.2d 678. The right of parents to decide on the upbringing of their children has been so ......
  • Winnebago Cnty. v. C.S. (In re C.S.)
    • United States
    • Wisconsin Supreme Court
    • April 10, 2020
    ...conclude, as a matter of law, that a statute is unconstitutional before the statute ... can be set aside." Mayo v. Wisconsin Injured Patients & Families Comp. Fund , 2018 WI 78, ¶27, 383 Wis. 2d 1, 914 N.W.2d 678. Thus, C.S. must prove beyond a reasonable doubt that § 51.61(1)(g)3. is facia......
  • Waupaca Cnty. v. K.E.K. (In re K.E.K.)
    • United States
    • Wisconsin Supreme Court
    • February 9, 2021
    ...the statute is constitutional, ‘we do not presume that the State applies statutes in a constitutional manner.’ " Mayo v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78, ¶56, 383 Wis. 2d 1, 914 N.W.2d 678 (quoting Tammy W-G. v. Jacob T., 2011 WI 30, ¶48, 333 Wis. 2d 273, 797 N.W.2d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT