State ex rel. Strykowski v. Wilkie, 76-596-OA

Citation261 N.W.2d 434,81 Wis.2d 491
Decision Date03 January 1978
Docket NumberNo. 76-596-OA,76-596-OA
PartiesSTATE ex rel. John STRYKOWSKI, Susan Strykowski, Iola Stoflet, the Estate of Kenneth Stoflet, Lloyd Waltman and Monta Jean Waltman, Petitioners, v. Edwin M. WILKIE, Administrative Director of Courts, St. Clare Hospital and St. Mary's Hospital, Respondents.
CourtUnited States State Supreme Court of Wisconsin

Page 434

261 N.W.2d 434
81 Wis.2d 491
STATE ex rel. John STRYKOWSKI, Susan Strykowski, Iola
Stoflet, the Estate of Kenneth Stoflet, Lloyd
Waltman and Monta Jean Waltman, Petitioners,
Edwin M. WILKIE, Administrative Director of Courts, St.
Clare Hospital and St. Mary's Hospital, Respondents.
No. 76-596-OA.
Supreme Court of Wisconsin.
Argued Sept. 1, 1977.
Decided Jan. 3, 1978.

Page 437

[81 Wis.2d 498] This is an original action to determine the constitutional validity of Chapter 655, Stats., which relates to health care liability and patients' compensation, and to determine whether the appointment of six-member patient compensation panels is contrary to the statutes.

Curtis M. Kirkhuff, Daniel A. Rottier, and Oldenburg, Lent & Kirkhuff, S. C., Madison, on briefs, for petitioners; Richard E. Lent, Madison, argued.

John E. Armstrong, Asst. Atty. Gen., argued, with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent, Edwin M. Wilkie.

Axley, Brynelson, Herrick & Gehl, Madison, on briefs for respondents, St. Clare Hospital and St. Mary's Hospital; Eugene O. Gehl, Madison, argued.

Page 438

John C. Carlson, Richard L. Cates and Lawton & Cates, Madison, on briefs, for amicus curiae, The Board of Governors of the Insurance Fund.

State Bar of Wisconsin, on briefs for amicus curiae, The Medical Malpractice Committee, State Bar of Wisconsin.

John A. Kluwin, Eric J. Van Vugt and Kluwin, Dunphy, Hankin & McNulty, Milwaukee, on briefs, for amicus curiae, The State Medical Society of Wisconsin.

John H. Lederer and DeWitt, McAndews & Porter, S. C., Madison, on briefs, for amicus curiae, The Wisconsin Hospital Assn.


The petitioners, all alleged to have sustained damages as a result of medical malpractice, petitioned this court for a writ of certiorari. We granted leave to commence an original action.

The petitioners seek a declaration that Chapter 655, Stats., violates constitutional guarantees of equal protection[81 Wis.2d 499] and due process, constitutes an unlawful delegation of judicial authority, and impairs the right of trial by jury. They also seek review of the actions of the Administrative Director of Courts (hereinafter Administrator) in convening six-member panels to hear their malpractice claims under Chapter 655.

The parties stipulated to the facts. St. Clare Hospital and St. Mary's Hospital, respondents in two of the malpractice claims, were added as party respondents on stipulation.

Briefs amicus curiae have been filed by the Board of Governors of the Insurance Fund, State Medical Society of Wisconsin, Medical Malpractice Committee of the State Bar of Wisconsin, Wisconsin Hospital Association, and Wisconsin Academy of Trial Lawyers. Each has been considered.

Chapter 655, Stats., enacted by ch. 37, Laws of 1975, effective July 24, 1975, established an exclusive procedure for the prosecution of malpractice claims against a "(h)ealth care provider," as defined by sec. 655.001(8).

Under Chapter 655, Stats., no court action may be maintained for injuries arising from medical malpractice until the matter has been reviewed by a patients' compensation panel. These panels are convened by the Administrator. Proceedings before a panel are initiated by filing a "submission of controversy" which briefly states the claim. Sec. 655.04.

Claims under $10,000 are heard by a three-member informal panel unless the parties stipulate to a hearing before a formal panel; claims over $10,000 are heard by an informal panel unless one party requests a formal panel in writing. A formal panel is defined as "a 5-member patients compensation panel established under s. 655.03(1)." Sec. 655.001(6), Stats. The composition of these formal panels is governed by sec. 655.03(1), the meaning of which is at issue.

[81 Wis.2d 500] Once convened, a panel determines the issues of negligence, causation and damages, applying comparative negligence principles. Sec. 655.065(1), (2) Stats. These determinations are made by a majority vote. Sec. 655.16(2).

A court action may be commenced within 120 days after the panel's decision. The findings of a formal panel with regard to causation and negligence are admissible at trial; the damage award may be admitted in the judge's discretion. Sec. 655.19(1), Stats. No panel member may appear at the trial as counsel or as a witness. Sec. 655.19. If no action is commenced within 120 days, judgment may be rendered in accordance with the panel's order. Sec. 655.20.

The Patients Compensation Fund, created by sec. 655.27, Stats., pays that portion of medical malpractice awards above certain limits. Sec. 655.27(1). It is financed by assessments against health care providers. The fund is managed by a board of governors and "held in trust for the benefit of insureds and other proper claimants." Sec. 655.27(7). Malpractice claimants seeking damages in excess of $200,000 must name the fund as a defendant, and the fund may appear and defend against the action. Sec. 655.27(5).

Page 439

Chapter 655, Stats., also imposes certain limitations upon the payment of malpractice awards. Awards for future medical payments in excess of $25,000 are paid to a medical expenses fund and are disbursed as future medical expenses are incurred. These payments continue until the amount is exhausted or the patient dies. Sec. 655.015. Claims in excess of $1,000,000 are paid in annual installments of not more than $500,000. Sec. 655.27(5)(d). After July 1, 1979, awards will be automatically limited to $500,000 per incident if the fund falls below certain levels. Sec. 655.27(6).

In addition, Chapter 655, Stats., requires health care providers to maintain insurance with specified minimum [81 Wis.2d 501] liability limits. Chapter 619, also enacted by ch. 37, Laws of 1975, provides for the establishment of mandatory risk-sharing plans. 1 These mandatory insurance and risk-sharing provisions are not in dispute.

The instant case concerns three petitions on unrelated causes of action arising from three separate incidents of alleged medical malpractice. In each case a submission of controversy was filed, pursuant to sec. 655.04, Stats., requesting a hearing before a formal panel, as authorized by sec. 655.04(2) (b). The three cases are consolidated in this proceeding.

Each claim involved both physician and nonphysician respondents and therefore resulted in a need for the construction of the ambiguous language of sec. 655.03(1), Stats., which governs panel composition when correspondents represent different health care professions. In each case the Administrator convened a six-member panel. Petitioners' motions to limit the panels to five members were denied. Petitioners challenge the establishment of six-member panels on both statutory and constitutional grounds.

The claim of petitioner Strykowski further involves a possible cause of action against the designer or manufacturer of a vacuum extractor employed in the delivery of the Strykowskis' infant son, who died shortly after birth. The designer and manufacturer are not subject to the Chapter 655 panel review process, however, and were not named as respondents in the Strykowski submission of controversy. Counsel for the Strykowskis argues that their inability to join these possible tort-feasors in the panel's proceedings denies them due process of law. Additional facts will appear in the discussion of the issues.

Initially we observe that the Administrator contends that the petitioners' constitutional arguments should not [81 Wis.2d 502] be considered because of the rule that one who voluntarily seeks the benefits of a statute may not later attempt to escape the results of its application by challenging its constitutionality. State v. Keehn, 74 Wis.2d 218, 222, 246 N.W.2d 547 (1976). The Administrator also contends that the petitioners lack standing to challenge the fact that the statutes treat claims over $10,000 somewhat differently than claims for less than that amount.

While it can appropriately be argued that these two contentions are meritorious, we believe the issues advanced are of considerable public importance and significance. The issues presented are publici juris because they are vital to the functioning of the health care liability and patients' compensation plan prescribed by the enactment of Chapter 655, Stats. 2

We therefore consider the merits of the following issues:

1. Does sec. 655.03(1), Stats., permit the appointment of six-member patients' compensation panels?

2. Does Chapter 655, Stats., violate the principle of equal protection of the laws?

3. Does Chapter 655, Stats., deny medical malpractice victims due process of law?

4. Does the creation of mandatory patients' compensation panels constitute an unlawful delegation of judicial authority?

Page 440

5. Does Chapter 655, Stats., impair malpractice claimants' right of trial by jury.?


Formal panels ordinarily consist of five members, only two of whom represent medical professions. Whenever a submission of controversy names both a physician and a nonphysician respondent, however, the Administrator [81 Wis.2d 503] considers sec. 655.03(1), Stats., to require the appointment of a sixth member.

Accordingly, he convened six-member panels to hear each of the claims involved in this action. Each panel consisted of an attorney, two public members, a tenured physician, a physician from the same field of medicine as a physician respondent and a member from the same health care field as a nonphysician respondent. Petitioners argue that the Administrator has misinterpreted the statute, and that the panels should be limited to five members.

Sec. 655.001(6), Stats., defines a "(f)ormal panel" as a "5-member patients compensation panel established under s. 655.03(1)." Subsections (a), (d) and (e) of sec. 655.03(1) provide that formal panels shall include a physician appointed for a six month term, an attorney and two lay members. These...

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