Rineck v. Johnson

Decision Date14 June 1990
Docket NumberNo. 88-1555,88-1555
PartiesRicky F. RINECK, Individually, as surviving husband of Joy E. Rineck, and as guardian for Rachel J. Rineck, a minor, Plaintiff-Respondent-Cross Appellant-Petitioner, v. Leonard C. JOHNSON, CRNA, Luther Hospital, St. Paul Fire & Marine Insurance Co., and Wisconsin Patients Compensation Fund, Defendants-Appellants-Cross Respondents, d Blue Cross & Blue Shield United of Wisconsin, Defendant.
CourtWisconsin Supreme Court

Howard S. Marker, Minneapolis, Minn., for plaintiff-respondent-cross appellant-petitioner.

Timothy J. Strattner, argued, Schellinger & Doyle, S.C., on brief, Brookfield, for defendants-appellants-cross respondents.

BABLITCH, Justice.

Ricky F. Rineck (Rineck) seeks review of a court of appeals' decision, Rineck v. Johnson, 150 Wis.2d 232, 440 N.W.2d 830 (Ct.App.1989). The issues presented are: (1) whether in a medical malpractice action involving death, the plaintiff's recovery for loss of society and companionship is limited to $50,000 by the general provisions of the wrongful death statute, sec. 895.04(4) Stats; (2) whether a minor child has a separate cause of action for loss of society and companionship when medical malpractice causes the death of one parent and the decedent is survived by his or her spouse; and (3) whether the loss of the decedent's child care services are recoverable by the surviving spouse beyond the child's age of majority.

We conclude that in a medical malpractice action involving death, the $1,000,000 limitation on recovery for total noneconomic damages imposed by the specific statutes applicable to malpractice actions supersedes the $50,000 limitation contained in the wrongful death statutes. We further conclude that a surviving minor child has a cause of action for loss of society and companionship. Finally, we conclude that the surviving spouse may not recover damages for post-majority loss of the decedent's child care services. The decision of the court of appeals is affirmed in part, reversed in part, and remanded to the trial court for further proceedings.

The facts for the purposes of this review are undisputed. Joy Rineck was admitted to the hospital for an emergency cesarean section. During that operation, a nurse anesthetist negligently failed to supply Joy with an adequate supply of oxygen. Consequently, Joy lapsed into a coma and died seven days later. The child who was delivered via the cesarean, Rachel, survived but purportedly is profoundly retarded and has cerebral palsy. The medical experts agree that Rachel's condition will not significantly improve. Unable to care for Rachel in his home by himself while employed full-time, Rineck found it necessary to move Rachel to his parents' home, where she is cared for by her grandmother.

In April, 1986, Rineck filed a Submission in Controversy pursuant to ch. 655, Stats, to pursue medical malpractice claims for damages sustained by himself and Rachel as a result of Joy Rineck's injuries and death, and as a result of Rachel's own injuries. That action was transferred without a hearing to circuit court when the legislature changed the procedure for prosecuting medical malpractice claims later that year. Rineck filed an amended complaint alleging a negligence action on his own behalf and a negligence action on behalf of Rachel for her personal injuries. Rineck claimed, among other things, damages for loss of his wife's society and companionship, for his loss of his wife's help in caring for Rachel, and for Rachel's loss of her mother's society and companionship. By agreement of the parties, claims relating to Joy's injuries and death, and those relating to Rachel's injuries, were bifurcated and the claims involving Joy were set for trial. The present action does not involve those claims relating to Rachel's injuries.

The defendants filed several pretrial motions: (1) to limit Rineck's claim for loss of his wife's society and companionship to $50,000 pursuant to sec. 895.04(4), Stats; (2) to exclude the claim for Rachel's loss of her mother's society and companionship; and (3) to deny that part of Rineck's claim for the loss of his wife's child care services that relate to the period beyond Rachel's eighteenth birthday.

The trial court denied the motion to impose a $50,000 limit on Rineck's claim for loss of society and companionship. The court held that the general wrongful death limitation under sec. 895.04(4), Stats, was superseded in medical malpractice actions involving death by the specific $1,000,000 limitation contained in sec. 893.55(4)(d), which is referenced by the medical malpractice statutes.

However, the trial court granted the defendants' motion to preclude Rachel's claims for loss of her mother's society and companionship. The trial court took under advisement the motion to exclude any damages for post-majority child care services that her mother would have provided for Rachel.

The jury awarded $408,987 in pecuniary damages, including $30,000 representing the post-majority cost of child care services. The jury also awarded $250,000 for loss of society and companionship. The trial court upheld the award of $250,000 for Rineck's loss of his wife's society and companionship. However, pursuant to its earlier ruling, the trial court determined that the amount representing loss of child care services should be eliminated from the damage award.

The defendants appealed that portion of the trial court's judgment which refused to limit Rineck's loss of society and companionship to $50,000. Rineck cross-appealed from that portion of the trial court's judgment which excluded Rachel's claim for the loss of her mother's society and companionship, and that portion of the decision eliminating the $30,000 jury award for post-majority child care.

The court of appeals reversed the trial court's decision on the noneconomic loss limit and held that the $50,000 limit under the wrongful death statute applied to Rineck's loss of society and companionship claim. However, the court of appeals affirmed the trial court's decision on the remaining two issues raised on the cross-appeal. The court concluded that the wrongful death statutes prohibited a surviving child from maintaining a claim for loss of society and companionship when the surviving spouse asserts such a claim, and that child care costs were limited to the child's minority.

We accepted review on August 15, 1989. The issues presented involve the interpretation of statutes, which are questions of law that we review independently of the lower courts' decisions. DeMars v. LaPour, 123 Wis.2d 366, 370, 366 N.W.2d 891 (1985).

We conclude that in a medical malpractice action involving death, the $1,000,000 limitation on recovery for total noneconomic damages under the specific statutes applicable to medical malpractice actions supersedes the $50,000 limit under sec. 895.04(4), Stats. We further conclude that a minor child may maintain an independent cause of action for loss of society and companionship when medical malpractice causes the death of a parent. Finally, we conclude that the surviving spouse may not recover damages for post-majority loss of child care services.

I. Noneconomic damages limitations

We turn first to the issue whether the $50,000 wrongful death limitation on damages for loss of society and companionship contained in the general provisions under sec. 895.04(4), Stats., is applicable to an action for medical malpractice involving death under ch. 655. We hold that it is not.

Chapter 655, Stats., enacted by ch. 37, Laws of 1975, established an exclusive procedure for the prosecution of malpractice claims against a health care provider, as defined by sec. 655.001(8). State ex. rel. Strykowski v. Wilkie, 81 Wis.2d 491, 499, 261 N.W.2d 434 (1978). Chapter 655 sets tort claims produced by medical malpractice apart from other tort claims, and parties are conclusively presumed to be bound by the provisions of the chapter regardless of injury or death. See secs. 655.005, 655.007.

Like the Worker's Compensation Act, ch. 655, Stats., is a legislative response to specific economic and social needs, and it applies to a limited class of persons. Both laws modify general civil law in instances where the statutes speak to a given subject. Id.; see also Stappas v. Kagen, 109 Wis.2d 528, 530, 326 N.W.2d 757 (1982).

Chapter 655, Stats., expressly delineates the damages limitation imposed in medical malpractice actions. Under sec. 655.017, "[t]he amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider ... is subjected to the limit under s. 893.55(4)." Section 893.55(4)(b) provides:

The total noneconomic damages recoverable under ch. 655 for bodily injury or death, including any action or proceeding based on contribution or indemnification, may not exceed the limit under par. (d) for each occurrence from all health care providers and all employes of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the patients compensation fund for any action filed on or after June 14, 1986 and before January 1, 1991. (Emphasis added.)

The limitation contained in par. (d) referenced above provides:

The limit on total noneconomic damages for each occurrence under par. (b) shall be $1,000,000 for actions filed on or after June 14, 1986....

The medical malpractice statutes also identify in sec. 893.55(5), Stats., several types of noneconomic loss recoverable in medical malpractice actions involving injury or death. One component of total noneconomic damages listed is the loss of society and companionship.

The defendants acknowledge that the total amount of noneconomic damages recoverable under the medical malpractice statutes is limited to $1,000,000. However, they argue that the component...

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