addressing an equal protection challenge to Wisconsin’s health care liability and patient compensation laws and concluding that the strict scrutiny standard does not apply
How later courts described this case
- addressing an equal protection challenge to Wisconsin’s health care liability and patient compensation laws and concluding that the strict scrutiny standard does not apply
- panel review procedure imposes no greater burden than administrative agency proceedings of which would-be litigants are generally required to avail themselves before trial under exhaustion-of-remedies rule
- statute mandating prior submission to compensation panel, delaying disbursement of future medical expenses exceeding $25,000, and providing that awards over $1,000,000 be paid in installments of $500,000 or less, upheld
- declining to apply strict scrutiny because “[t]he right of access to the courts, where petitioners will have an opportunity for jury trials, is expressly preserved”
Written by the judges who cited it.
The opinion
DAY, J.
(dissenting). I dissent from that part of the majority opinion that holds that sec. 655.19(1), Stats, does not offend the right to a jury trial guaranteed by the Wisconsin Constitution. 665.19(1), Stats, provides :
“The findings and order, except for damages awarded, of any formal panel shall be admissible in any action in circuit or county court, and the amount of damages awarded may, at the court’s discretion, be admissible in such action . . .”
The majority opinion states (p. 18):
“Without the special expertise of medically-trained panel members, the central purposes of the entire statutory scheme would be frustrated.”
The majority then says (p. 27):
“We believe the statutory admissibility of panel findings and orders is, in essence, a rule of evidence. . . . Similar statutory provisions in other states have been characterized as evidentiary rules allowing a specialized form of expert opinion. . . . Thus viewed, the admissibility of the panel’s findings is constitutionally unobjectionable because litigants have no vested rights in particular rules of evidence.”
It is more than a mere rule of evidence when the opinions of an “expert” are not subject to cross-examination. The very essence of a trial is the right to examine and cross-examine witnesses. The designation of panel findings as a “specialized form of expert opinion” is dif *539 ficult to rationalize. The formal panel is made up of a physician and if a physician is the respondent, then another physician, or if a health care provider other than a physician is one of the respondents then a member of that particular occupation is to be designated a member. The three remaining members of the five person panel are an attorney appointed by the administrator and two public members who are not attorneys appointed by the governor for two year terms. We fail to see where the expertise lies here. If the theory is that the physician and the other health care provider are “experts” the other three members; the attorney and the two laypeople, are no more “experts” than any member of a jury. The three lay people may outvote the two members in the health care field and yet under the majority opinion, their opinion on negligence, causation and in the court’s discretion damages, are then given to the jury as “expert opinion” with no opportunity for cross-examination by either party. This in my opinion clearly invades the province of the jury and is impermissible under our Wisconsin Constitution.
I am also of the opinion that see. 655.015, Stats, providing that ah award for future medical expenses in excess of $25,000 is to be paid to the future medical expense fund and to be disbursed in periodic payments for those expenses until the amount is exhausted or the claimant dies, is unconstitutional. The majority opinion says (p. 13), “This procedure was obviously intended for the benefit of the claimant with substantial injuries requiring long term treatment . . .”
I see no “benefit” to the claimant. If the award for future medical payments was made to him, he could invest it and be accumulating interest to help meet medical payments as they arise. There is no provision for interest payments for the amounts withheld under the statute.
*540 The Wisconsin Administrative Code, Insurance 3.37 (4) (h), established by the commissioner pursuant to 655.015, Stats, provides in part:
“. . . should the injured person become deceased and there is a balance in his account allocation, that amount shall be returned to the insurer, organization or person responsible for establishing the account.”
The only one to benefit under this arrangement is the insurer. If the claimant dies this becomes a windfall benefit to the insurer. There is no balancing provision, such as providing that necessary medical expense payments will continue for the life of the claimant if the amount awarded is exhausted. The risk is all on the part of the claimant. It lacks fundamental fairness and violates the equal protection provisions of the United States and Wisconsin Constitutions. I would hold that any award for future medical expense must be paid to the claimant as other elements of an award for damage are paid under the act.
I am authorized to state that Justice Heffernan joins in this dissent and that Justice Abrahamson joins in that part of this dissent concerning sec. 655.015, Stats.