Petition for Writ of Certiorari — Johnson v. Rineck

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NO. er F.

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IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1990

LEONARD C. JOHNSON, C.R.N.A.,

LUTHER HOSPITAL, ST. PAUL FIRE &

MARINE INSURANCE CO., AND WISCONSIN

PATIENT COMPENSATION FUND,

Petitioners,

vs.

RICKY F. RINECK, INDIVIDUALLY AND

AS SURVIVING HUSBAND OF JOY E. RINECK

AND AS GUARDIAN FOR RACHEL J. RINECK,

A MINOR,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE WISCONSIN SUPREME COURT

PETITION

TIMOTHY J. STRATTNER

COUNSEL OF RECORD FOR PETITIONERS

SCHELLINGER & DOYLE, S.C.

15700 WEST BLUEMOUND ROAD

P. O. BOX 464

BROOKFIELD, WI 53008-0464

414-785-0200

QUESTION PRESENTED

Whether or not, in statutorily-created

actions for wrongful death, the Wisconsin Supreme

Court's interpretation of a statute, intended to place a

“cap” on damages awarded in medical malpractice

actions, is repugnant to the Equal Protection Clause

of the United States Constitution, when the interpre-

tation actually imposes higher limits of damage

liability on health care providers than on other citi-

zens?

ee <P

TABLE OF CONTENTS

QUESTION PRESENTED ...ssscccsssssssssssssossssesecensses i

TABLE OF AUTHORITIES .....cccccssssssssssssssesee iv-ix

omaaaov .................................... 1

PARTIES TO PROCEEDING ......cscscsssssssssssssssceeees 1

ic 2

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED o0......sesscssssssessssseeee 2

os Le cra 5

ee 12

I. THE DECISION OF THE WISCONSIN

SUPREME COURT CREATES

CONSTITUTIONALLY INVALID

TID siccscccsecesczccccsccscesenesocssee ness 13

A. Wrongful Death Actions Are

EE 13

B. The “Rational Basis” Test Is

The Appropriate Standard

EES SE 14

C. The Statutory Classifications

Created By The Wisconsin Supreme

Court Decision Are Repugnant

To The Equal Proection Clause............... 17

Il. THE ISSUE OF STATUTORY

LIMITS ON DAMAGES IN

TORT CASES IS AN ISSUE

OF NATIONAL SIGNIFICANCE .................. 21

Il. THIS CASE IS APPROPRIATE

PR te ecstenerenreescosece 24

A. The Creation Of Separate And

Unequal Classifications In

Wrongful Death Lawsuits In

Wisconsin Is Not Grounded On

Any Recognized State

Constitutional Principle ....................0000... 24

B. The Equal Protection Issue

Raised By The Holding Of The

Wisconsin Supreme Court In

This Case Is Properly Before

The United States Supreme

Batic | ei ile a 25

igi Pee o ok nas ee oe 27

iii

Cases

Page

Brinkerhoff-Faris Trust & Sav.

Se ER EE SD cacicecesereneocvcoceoscocessnsesocesenssoose 26

Bullock v. Carter, 405 U.S. 134 (1972) ..........scccesssssesesseseesees 15

Carson v. Maurer, 424A. 2d 825 (N.H. 1980).............00+ 23

DiAntonio v. Northampton-Accomack

Memorial Hosp., 628 F.2d 287 (4th Cir. 1980) ............-.++ 17

Duke Power Co. v. Carolina

Environmental Study Group,

lr 16

Fein v. Permanente Medical Group,

211 Cal. Rptr. 368, 695 P.2d 665,

680 (1985), appeal dismissed,

474 US. 892 (1985).......... acl A sncesibaianeabomsbebian 18

ee eae icant ccsctiicica cis senccenccssvecsscosesseseeas 12

Fitz v. Dolyak, 712 F.2d 330 (8th Cir. 1983).........::ssssssess0e 17

Graham v. Richardson, 403 U.S. 365 (1971) ............cceseeee 15

Great Northern Ry. Co. v. Sunburst

eR Bae Ak 0). <n ee 26

Hanson v. Valdivia, 51 Wis. 2d 466,

Nee. as ssessucsunoeh 13

Hayes v. State of Missouri, 120 U.S. 68 (1887) ..............0+ 15

Hoffman v. United States,

FOE Te WON TE, BDO oicnes csnecinsanssvvticcccsonsemeanecee 16, 18

97 Wis.

2d 485, 294 N.W.2d 485(1980), cert. denied,

EEE 24

McGowan v. Maryland, 366 U.S. 420 (1961) ............scssss00 16

McLaughlin v. Florida, 379 U.S. 184 (1964) .............ssssscsee 15

Missouri v. Gehner, 281 U.S. 313 (1930) .............cceceeeeeeseeee 26

Munn v. Tilinois, 94 U.S. 113 (1877) ......scccsossssesssnsecsnsesnecenecs 15

N.A.A.C_P. v. Alabama, 357 U.S. 449 (1958) ......0....0..... 15

Oyama v. California, 332 US. 633 (1948) ........s.ssccsssescsseee 15

150 Wis.

Od 252. 440 N.W 2a 830 (App. a ics 1, 10, 19, 25

155 Wis.

2d 659, 456 N.W.2d 336 (1990) aeccesssscsvencssessesssseseeneee 1,10

Bae wv. Vee, SH UID. TED CITED aos wiseiccscciccnscrcsssescncssensnesese 15

Shapiro v. Thompson, 394 U.S. 618 (1969) «0.02... 15

BI Wis, 2d 491, 261 NW2d 434 (1978) cocoon 8,14

Steinbarth v. Johannes, 144 Wis.

2d 159, 423 N.W.2d 540 (1988) ...........-ceeccsesssessseesseesneessees 6,13

118 Wis. 2d 225, 346 N.W.2d 766 (1984) ........c0scccees00 6, 13

Wood v. Georgia, 450 U.S. 261 (1981) ..........:sscecssessseesseesses 28

Woods vy. Holy Cross Hosp.,

S91 DA LUE INE” BDFD ciscsck cs cevescceeccvecacnsssoucesvososovecoves 17

Yotvat v. Roth, 95 Wis.

2d 357, 290 N.W.2d 524 (Ct. App. 1980) .......:-cseesseeee 15, 24

Zablocki v. Redhail, 434 U.S. 374 (1978) .........ccesscssessseesssees 15

Constitutional Provision

Fourteenth Amendment to

the United States Constitution:

Equal Protection Clause ...............scsssssssssssssssessensesseseenenserees 2

Statutes

atic issacckinctegietittrenguptahbtinatiinatis 2

can hivtetidinnssiisinnebotibibianiahanenteesianties 28

Se aii cseerrnaestsnshiashnnneehiedunimeenitnitsiiiieeee 2

Wisconsin Statutes Sec. 655.007 .............cccescecsseeeseeseeeeeeeees 6

Wisconsin Statutes Sec. 655.017 ...........sccesscsseeseseeees 3, 6, 10

Wisconsin Statutes Sec. 655.23 ..........cccccseescnsereeseeseneeees 8, 10

Wisconsin Statutes Sec. 655.27 ...........ccccccesssseeeseceseeeeeneees 8, 10

Wisconsin Statutes Sec. 893.55(4) ....... 4,7, 10, 14, 19,20, 22, 25

Wisconsin Statutes Sec. 895.03 .csecscscscsesersnvsnvenssrtnsneene 6

Wisconsin Statutes Sec. 895.04 .............cceeeee 6, 9, 10, 19, 25

Cases Cited to Demonstrate

National Significance of Issue

Arneson v. Olson, 270 N.W.2d 125

Nac Rk tah acsct ov neconsecscsenseservenneccees 23

120 N.H.

a csmunssoctenianones 23

n Community Ho

34 Ohio Misc 2d 25, 495 N.E.2d 51

ERE Ole RE EO 22

Etheridge v. Medical Center Hosp., 237 Va. 87,

Se ss, sccsnscevcrscoresnsscnsnenncens 22

38 Cal. 3d 137, 695 P.2d 665, 211

“TC 22

704 F. Supp. 1325 (D. Md. 1989) ......cssssscsssssssssssssssseeseeseeee 22

Johnson vy. St. Vincent Hosp.,

a ee ee i I aectncnteniecnescens essen rerccneecerecconenceenenes 22

Jones v. State Bd. of Medicine,

97 Idaho 859, 555 P.2d 399 (1976) ........cccccccssecesccesseeeseeeeveees 23

243 Kan. 333, 757 P.2d 251 (1988) ............essesesesereeseeeseeneneens 22

a Nod aoe Cle 1988) siiaatieievierimnnasisietiinlinanisiicemenivecanvinnin 22

199 Neb 97, 256 NAW 657 (1977) ern 2

for reconsideration, 477 So. 2d 1094 (1985) .............se+ 22

Statutes Cited to Demonstrate

National Significance of Issue

ALASKA STAT. § 09.17.010 (Supp. 1986) ...........:eesesseseee: 21

CAL. CIV. CODE § 3333.2 (West Supp. 1989) ...........00521

COLO. REV. STAT. § 13-21-102

CO te aerate eich crept ctecserecnce ci ssicicnnccneesonsnesse 21

COLO. REV. STAT. § 13-21-102.5

Ce cers sscccen: sonccostevnsncnecenteneessvsnnsesvs 21

FLA. STAT. ANN. § 768.80

RN I ais ssencc enc esnsnssenecnossnsnccccocnesenesnnccees 21

GA. CODE ANN. § 51-12-5.1

EERIE IEP nr evan EN NUNC TTI 21

HAW. REV. STAT. § 663-8.7 (Supp. 1987) ..........s:sscsessseees 21

IDAHO CODE §§ 6-1603, -1604 (Supp. 1988) ....cs..sssseoos 21

IND. CODE ANN. § 16-9.5-2-2

(West 1984 & Supp. 1988) .......csecserveveevenes seseenenseneseenssnens 21

KAN. STAT. ANN. § 60-3407 (Supp. 1988) ............000008 21

LA. REV. STAT. ANN. § 40:1299.39

(West 1977 & Supp. 1989) .......0-.sssnsssessesesnnnnnnnnnnsnsnneens 21

LA. REV. STAT. ANN. § 40:1299.42

COMER Tire GCI, BOI sacinseccctcscesetssssercesescvscnccscesessrsensesene 21

MD. CTS. AND JUD. PROC. CODE ANN.

§ 11-108 (Supp. 1988)..........sersesseserereereneenennenens ‘icilabanaes 21

MASS. GEN LAWS ANN.

Ch. 231§ 60(H) (West Supp. 1989)... 21

MICH. COMP. LAWS ANN.

§ 600.1483 (West Supp. 1988) ............ccscsssessessseseeneenseesnenes 21

MINN. STAT. ANN. § 549.23 (West 1988) .........0ccssee 21

MO. ANN. STAT. § 538.210 (Vernon 1968) ............0ee0 21

MONT. CODE ANN. § 2-9-108 (1987).......sscssesseseseeseeens 21

NEB. REV. STAT. § 44-2825 (1988)...........ecscsssssessssesneessnneens 21

N.H. REV. STAT. ANN. § 508: 4-d

i I aa a aaccencschtbeienscinincsestvensesacecesensnensrecnsnens 21

N.J. STAT. ANN. § 2A:53A-8 (West 1987) ..........cccccsneen 21

N.M. STAT. ANN. § 41-5-6

Ge I istssasesenesoseserensssnsececevercacerecssrscsensncsesesesene 21

N.D. CENT. CODE ANN.

IIE TITIES snc escesscveresncccnsescewonssrscsnssunsenesenessese 21

OKLA. STAT. ANN. tit. 23, § 9

CRB iN I wsiinccsscevssnseescecescesscccncescsonsncesecsossesensetenss 21

OR. REV. STAT. ANN. § 18.560

CEDURES PTE DI wo nesesevsccncnsscnscvsvsvnscsesssenesescsososecnsennsosesssnsoes 22

PA. CONS. STAT. ANN. § 8528

GPRRPE POPE IN. BTID cescsccescscesccscncesccsessccnsessscsesennonens 22

viii

S.D. CODIFIED LAWS ANN.

§ 21-3-11 (1987 & Supp. 1988) ..ecsceccoecsccesssseeseesssnseessensensees 22

TEX. CIV. PRAC. & REM. CODE ANN. —

§ 41.007 (Vernon Supp. 1989)............c-c-csersrsee-seserseveeseseess 22

TEX. REV. CIV. STAT. ANN. art. 4590(i)

CINE I Acs seitsesecencsccccesssititisnsococcencccaqeetncsvenescsoocece 22

UTAH CODE ANN. § 78-14-7.1

co | Ee a ae 22

VA. CODE ANN. § 8.01-5.81.15

Ch ii scrtssneinennesevethircorenccontinhenicadneatens 22

WASH. REV. CODE ANN.

Se NE sete cpieipeniinteninninsiventnecrtenzececstocsessneceee 22

W. VA. CODE § 55-7B-8 (Supp. 1988) ........c:sccssssrseseeesesees 22

Other Authorities

Comment, The Constitutionality of Wisconsin’s

Noneconomic Damage Limitation, 72 Marq.

> Wi hes ee es 17

To the Honorable Chief Justice and Associ-

ate Justices of the Supreme Court of the United States:

Leonard C. Johnson, C.R.N.A., Luther

Hospital,St. Paul Fire&MarineInsurance Co.,and

Wisconsin Patient Compensation Fund, the Petitioners

herein,’ pray that a Writ of Certiorari issue to review

the decision of the Wisconsin Supreme Court filed in

the above-captioned matter on June 14, 1990:

OPINIONS BELOW

The opinion of the Wisconsin Supreme

Courtinthis matter is reported as Rineck v. Johnson, 155

Wis. 2d659,456N.W.2d 336 (1990) and is reprinted in

Petitioners’ Appendix at Page A-1.

The order of the Wisconsin Supreme Court

denying Petitioners’ Motion for Reconsideration is un-

reported and is reprinted in Petitioners’ Appendix at

Page A-16.

The opinion of the Wisconsin Court of Ap-

pealsin this matter is reported at kv. Johnson, 150

Wis. 2d 232, 440 N.W.2d 830 (App. 1989), and is

reprinted in Petitioners’ Appendix at Page A-38.

PARTIES TO THE PROCEEDING

All of the parties to this proceeding are identified in the

caption. Pursuant to Rule 29.1, petitioners make the following

statement regarding the parent or subsidiary corporations of

parties to this proceeding: Luther Hospital is wholly-owned by

Luther Regional Health Systems, Inc., and has no subsidiaries;

St. Paul Fire & Marine Insurance Company is wholly-owned by

St. Paul Companies, Inc.,and has no subsidiaries; and Wisconsin

Patient Compensation Fund has neither parent nor subsidiary

corporations.

The unreported memorandum opinion of

the Circuit Court for Chippewa County, Wisconsin is

reprinted in Petitioners’ Appendix at Page A-49.

JURISDICTION

The opinion of the Wisconsin Supreme

Court was filedonJune 14,1990. Appendix, Page A-

1. A timely motion for reconsideration was denied by

order of the Wisconsin Supreme Court on Septem-

ber 13,1990. Appendix, Page A-16.

The jurisdiction of the United States Su-

preme Court is invoked pursuant to 28 USC Sec. 1257(a)

on the ground that the application of a state statute by

the Wisconsin Supreme Court is repugnant to the

Constitution of the United States.

Further, 28 USC Sec. 2403(b) may be appli-

cable, and copies of the Petition for Writ of Certiorari to

the Wisconsin Supreme Court shall be served upon the

Attorney General of the State of Wisconsin.

CONSTITUTIONAL PROVISION

AND STATUTES INVOLVED

Fourteenth Amendment to the United States

Constitution: Equal Protection Clause

Section 1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or enforce

any law which shall abridge the privileges

or immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property, with-

——

SEAM tet babe.

out due process of law; nor deny to any

within its jurisdiction the equal

protection of the laws.

Sections 895.04(1) and 895.04(4), Wis. Stats.:

Wisconsin Wrongful Death Statute

(Pertinent Sections)

895.04 Plaintiff in wrongful action. (1)

An action for wrongful death may be

brought by the personal representative of

the deceased person or by the person to

whom the amount recovered belongs.

(4) Judgment for damages for pecuniary

injury from wrongful death may be

awarded to any person entitled to bring a

wrongful death action. Additional dam-

‘ ages not to exceed $50,000 for loss of soci-

ety and companionship may be awarded

to the spouse, children or parents of the

deceased.

Sections 655.017 and 893.55(4), Wis. Stats.:

Wisconsin “Cap” On Damages Against Health

Care Providers

655.017 Limitation on noneconomic

damages. The amount of noneconomic

damages recoverable by a claimant or

plaintiff under this chapter for acts or

omissions of a health care provider if the

action is filed on or after June 14, 1986

and before January 1, 1991, and for acts

or omissions of an employe of a health

care provider, acting within the scope of

his or her employment and providing

health care services, for actions filed on or

after June 14, 1986 and before Janu-

ary 1, 1991, is subject to the limit under

s. 893.55(4).

893.55(4)(a) In this subsection,

“noneconomic damages” means moneys

intended to compensate for pain and suf-

fering; humiliation; embarrassment;

worry; mental distress; noneconomic ef-

fects of disability including loss of enjoy-

ment of the normal activities, benefits and

pleasures of life and loss of mental or

physical health, well-being or bodily

functions; loss of consortium, society and

companionship; or loss of love and affec-

tion.

(b) The total noneconomic damages re-

coverable under ch. 655 for bodily injury

or death, including any action or proceed-

ing based on contribution or indemnifica-

tion, 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 whoare found negligent and from

the patients compensation fund for any

action filed on orafterJune 14,1986 and

before January 1, 1991.

shall make a finding as to noneconomic

damages without regard to the limit un-

der par.(d). If noneconomic da-nages in

excess of the limit are found, the court

shall make any reduction required under

s. 895.045 and shall award as

noneconomic damages the lesser of the

reduced amount or the limit. If an action

is before a jury, the jury shall make a

finding as to noneconomic damages with-

out regard to the limit under par.(d). If the

jury finds that noneconomic damages ex-

ceed the limit, the jury shall make any

reduction required unders. 895.045 and

the court shall award as noneconomic

damages the lesser of the reduced amount

or the limit.

(d) The limit on total noneconomic dam-

ages for each occurrence under par.(b)

shall be $1,000,000 for actions filed on or

afterJune 14,1986,and shall beadjusted

by the director of state courts to reflect

changes in the consumer price index for

all urban consumers, U.S. city average, as

determined by the U.S. department of la-

bor, at least annually thereafter, with the

adjusted limit to apply to awards subse-

quent to such adjustments.

(e) Economic damages recovered under

ch. 655 for bodily injury or death, includ-

ing any action or proceeding based on

contribution or indemnification, shall be

determined for the period during which

the damages are expected to accrue, tak-

ing into account the estimated life ex-

pectancy of the person, then reduced to

present value, taking into account the ef-

fects of inflation.

STATEMENT OF THE CASE

The material facts of this matter are undis-

puted. In January, 1986, Joy E. Rineck presented at

Luther Hospital in Eau Claire, Wisconsin.

Ms. Rineck was in labor. Due to various complica-

tions, an emergency cesarean section was required to

deliver her daughter, Rachel Rineck. Petitioner, Leonard

Johnson, C.R.N.A., was the nurse-anesthesiologist

during the surgery, and was allegedly negligent dur-

ing the anesthetic management of the cesarean proce-

dure. On February 4, 1986, Joy E. Rineck died as a

result of the alleged negligence of Johnson.

In the State of Wisconsin, an action for

wrongful death is purely statutory, and no right of

recovery existed atcommon law. Steinbarth v. Johannes,

144 Wis. 2d 159, 163, 423 N.W.2d 540 (1988). The

Wisconsin legislature established the action for

wrongful death in Wisconsin by enacting what is now

Sec. 895.03, Wis. Stats. (1987-88). An action for

wrongful death is designed to compensate for the loss

of the relational interest existing between the beneficiary

and thedecedent. Weiss v. Regent Properties, Ltd.,118

Wis. 2d 225,230,346 N.W.2d 766 (1984). Wisconsin’s

wrongful death statute expressly limits the liability of

an alleged wrongdoer for damages for the loss of

society and companionship of the decedent. Section

895.04(4), Wis. Stats. (1987-88), limits the recovery of

damages for such loss to a maximum of $50,000.

In 1975, the Wisconsin legislature enacted

Chapter 655, Wis. Stats. (1987-88), which subjects

every claim for injury or death caused by medical

malpractice to the provisions of that chapter. Sec.

655.007, Wis. Stats. (1987-88). In June, 1986, the

Wisconsin legislature enacted certainamendments and

modifications to Chapter 655. Section 655.017,

Wis. Stats., established a limitation, or “cap,” on

noneconomic damages recoverable for the acts or

omissions of a health care provider. Those limitations

are set out in Sec. 893.55(4), Wis. Stats. (1987-88).

Section 893.55(4)(a) defines noneconomic damages as:

[MJoneysintended tocompensate for pain

and suffering; humiliation; embarrass-

ment; worry; mental distress;

noneconomic effects of disability includ-

ing loss of enjoyment of the normal activi-

ties, benefits and pleasures of life and loss

of mental or physical health, well-being or

bodily functions; loss of consortium, so-

i ip; or loss of love

and affection. (emphasis supplied)

Subsection (4)(b) of 893.55 further provides, inter

alia that:

The total noneconomic damages recover-

able under ch. 655 for bodily injury or

death, including any action or proceeding

based on contribution or indemnification,

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 whoare found negligent and from

the patients compensation fund for any

action filed onorafterJune 14,1986 and

before January 1, 1991. (emphasis sup-

plied)

Finally, Subsection (4)(d) of 893.55 provides, in

pertinent part:

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. . . . (emphasis sup-

plied)

When enacting Chapter 655. Wis. Stats.,

the Wisconsin legislature was attempting to respond

to a perceived “medical malpractice crisis” in the State

of Wisconsin. State ex rel. Strykowski v. Wilkie, 81

Wis. 2d 491, 508, 261 N.W.2d 434 (1978). Among

other provisions, the Wisconsin legislature mandated

that every health care provider practicing in the State

of Wisconsin is required to maintain proof of financial

responsibility (generally through “health care pro-

viders’ professional liability insurance”). Sec. 655.23,

Wis. Stats. (1987-88). The legislature also created a

Patients Compensation Fund for the purpose of pay- |

ing that portion of any medical malpractice claim :

which is in excess of the statutorily-set liability limits

contained in any health care provider's professional

liability insurance. Sec. 655.27,Wis. Stats. (1987-88).

At the time of the death of Joy E. Rineck,

petitioner, Leonard Johnson, C.R.N.A., as an em-

ployee of petitioner, Luther Hospital, was afforded

“healthcare providers’ professional liability insurance”

by a policy issued to Luther Hospital by petitioner,

St. Paul Fire & Marine Insurance Company. The

limits of that liability insurance policy were the sum of

$200,000. By virtue of their status as “health care

providers” within the meaning of Chapter 655,

Wis. Stats., both petitioner, Johnson, and petitioner,

Luther Hospital, are protected against liability for

medical malpractice in excess of their incurance policy

limits by the petitioner, Wisconsin Patients Compen-

sation Fund. See Secs. 655.23(5), 655.23(5m), and

655.27(1), Wis. Stats. (1987-88).

On April 28, 1986, the respondent, Ricky

F. Rineck, pursuant to the provisions of Chapter 655,

Wis. Stats., commenced a Patients Compensation

Panel proceeding against the petitioners, health care

providers, Johnson and Luther Hospital, alleging that

the negligence of the health care providers caused the

wrongful death of Joy E. Rineck. Pursuant to certain

amendments and modifications of Chapter 655,

Wis. Stats.,whichbecameeffectiveonJune 14,1986,

the action was transferred from the Wisconsin Patients

Compensation Panel to the Chippewa County Circuit

Court on July 10, 1986. Petitioners,St. Paul Fire &

Marine Insurance Company and the Wisconsin Patients

Compensation Fund, were added as parties to the

proceedings, pursuant to Wisconsin law.

In May, 1988, the claims of medical mal-

practice arising out of the death of Joy E. Rineck were

tried before the Chippewa County Circuit Court and

jury. The jury awarded Ricky F. Rineck the total sum of

$658,987 as damages resulting from the death of his

wife, Joy E. Rineck. Of this sum, $250,000 was allocated

by the jury as compensation for his loss of society and

companionship. At motions after verdict, trial counsel

forthe healthcare providersand their insurance carriers

made a motion to reduce the damage award for loss of

society and companionship of the decedent to the sum

of $50,000, the statutory limit established by Sec.

895.04(4),Wis. Stats.,the wrongful death statute. The

trial court denied the motion, and granted Ricky F.

Rineck a judgment which included the $250,000 award

for theloss of society and companionship of his deceased

spouse. Petitioners appealed that part of the award to

the Wisconsin Court of Appeals.

Ina published decision, the Wisconsin Court

of Appeals, District II, held that Sec. 895.04(4),

Wis. Stats., limits recovery for loss of society and

companionship in a wrongful death action to $50,000,

and reversed that part of the trial court’s judgment.

Rineck v. Johnson, 150 Wis. 2d 232, 440 N.W.2d 830 (Ct.

App. 1989). The court of appeals held that “loss of

society and companionship” is one of the seven types

of noneconomic loss identified by the “cap” statute,

Sec. 893.55(4)(a), Wis. Stats. (1987-88). The court of

appeals also held that the wrongful death statute could

be reconciled with the “cap” statute, and that the

Wisconsin legislature did not intend to remove the

well-established damage limitations of wrongful death

in cases involving medical malpractice. The decision of

the court of appeals was unanimous.

Ricky F. Rineck appealed this decision to

the WisconsinSupreme Court. The Wisconsin Supreme

Court overturned the decision of the court of appeals.

Rineck v. Johnson, 155 Wis. 2d 659, 456 N.W.2d 336

(1990). The Wisconsin Supreme Court held that the

Wisconsin legislature, by enacting the “cap” on dam-

ages in medical malpractice actions, intended to create

two different classifications of actions for wrongful

death: (1) wrongful death actions against health care

providers, Secs. 655.017 and 893.55(4), Wis. Stats.;

and (2) wrongful death actions against all other citi-

zens. Sec. 895.04, Wis. Stats. Pursuant to this inter-

pretation by the Wisconsin Supreme Court, in statuto-

rily-created actions for wrongful death, Wisconsin law

now subjects health care providers to liability of up to

$1,000,000 for damages resulting from the loss of society

and companionship of a decedent, while all other

citizens are limited to liability of no more than $50,000

for the same claim.

Petitioners filed a Motion for Reconsidera-

tion in the Wisconsin Supreme Court onJuly 3, 1990,

within the time limit provided by Wisconsin Statutes.

The sole basis of the motion for reconsideration was

that the new interpretation of the statutes violated the

Equal Protection Clauses of the Wisconsin and United

States Constitution. The motion for reconsideration

was denied by the Wisconsin Supreme Court by an

Order dated September 13,1990. At no time prior to

the motion for reconsideration was the equal protection

argument addressed. In the court of appeals, the case

had been treated as a straightforward case of statutory

interpretation, and a unanimous court of appeals had

reconciled the statutes in question and maintained a

single class of wrongful death actions. Moreover,

petitioners had no interest in challenging the constitu-

tionality of any of the statutes involved, because the

wrongful death statutory limitation and the statutory

cap on noneconomic damages could clearly be recon-

ciled. Indeed, it is the position of the petitioners that,

absent the decision of the Wisconsin Supreme Court in

this case, all of the statutes are, in fact, constitutional. It

is only the unanticipated interpretation of the “cap”

statute by the Wisconsin Supreme Court which creates

the twoclassifications of wrongful death actions, which

are repugnant to the Equal Protection Clause of the

United States Constitution.

ARGUMENT

As recognized by Justice White in hisdissent

to the dismissal of the appeal in Fein v. Permanente

Medical Group, 474 U.S. 892 (1985), there is national

concern over the “medical malpractice crisis” and

widespread efforts by state legislatures and statecourts

to respond to this perceived “crisis.” This case affords

the United States Supreme Court a narrow framework

in which to both remedy an obviously unconstitutional

ruling and to consider constitutional questions raised

by the numerous attempts of state legislatures to “cap”

damages in certain kinds of tort actions.

The legislature of the State of Wisconsin has

created a cause of action for wrongful death, enabling

persons to assert clairns for damages resulting from

death caused by tortious conduct. As a part of this

statutory cause of action, the legislature has established

a $50,000 limit on the amount of money that can be

recovered on a claim for loss of society and compan-

ionship. The supreme court of the State of Wisconsin

has now ruled that, in actions against health care

providers, a different statute intended to “cap” dam-

age awards actually raises to $1,000,000 the limit on the

amount that can be recovered for loss of society and

companionship resulting from death. These statutory

classifications are clearly unequal. Within this fairly

narrow context, the United States Supreme Court can

determine whether these unequal classifications are

constitutional, and in so doing, give guidance to courts

and legislatures throughout the country on an issue of

widespread interest and import.

I. THE DECISION OF THE WISCONSIN

SUPREME COURT CREATES

CONSTITUTIONALLY INVALID

CLASSIFICATIONS.

A. Wrongful Death Actions Are Purely

Statutory.

It is well-settled in Wisconsin that an action

for wrongful death is purely statutory. The wrongful

death statute abrogated common law !n order to create

acause ofaction for the loss sustained by thedecedent’s

dependents. No right of recovery existed at common

law. Steinbarth v. Johannes, 144Wis. 2d 159, 163, 423

N.W.2d 540 (1988). The Wisconsin Supreme Court has

consistently held that an action for wrongful death is

strictly limited to compensation for the loss of the

relational interest existing between the statutorily-

identified beneficiaries and the decedent. Weiss v.

Regent Properties, Lid. 118 Wis. 2d 225, 230, 346

N.W. 2d 766 (1984); Hanson v. Valdivia, 51 Wis. 2d

466, 473, 187 N.W.2d 151 (1971).

Inthecourts below, counsel for Ricky Rineck

argued that the statutes governing medical malpractice

actions in Wisconsin created a new, separate cause of

action for wrongful death caused by health care pro-

viders. Petitioners viewed the case - and the Wisconsin

Court of Appeals unanimously agreed - as a straight-

forward matter of statutory interpretation, in which

the well-established rules governing actions for

wrongful death were to be harmonized with the pro-

cedures governing medical malpractice actions. The

court of appeals concluded that, in enacting sec.

893.55(4), the Wisconsin legislature did not create any

separate cause of action for wrongful death. The clear

purpose of the statute was to protect health care pro-

viders from medical malpractice claims not to create

new and additional causes of action. Were it to create

a separate cause of action, it would increase the num-

ber of such claims rather than protect against them.

B. The “Rational Basis” Test Is The

Appropriate Standard of Review.

When Chapter 655, Wis. Stats., which

governs medical malpractice claims, was first enacted,

it was challenged in the Wisconsin Supreme Court on

a "umber of different grounds. See State ex rel.

vurykowski v. Wilkie, 81Wis. 2d 491,261 N.W.2d 434

(1978). Among other things, the Wisconsin Supreme

Court considered the argument that separating tort

claims against health care providers from other tort

claims was a violation of equal protection, and in

holding that there was no constitutional violation, the

court applied the “rational basis” test to the statutes.

State ex rel. Strykowski v. Wilkie 81 Wis. 2d at 506-

07. This test - the least intrusive of constitutional

challenges under the Equal Protection Clause - is the

appropriate test to beapplied in examining the decision

of the Wisconsin Supreme Court in the instant case.

The Equal Protection Clause of the United

States Constitution requires equal protection and se-

curity for all persons under like circumstances. Hayes

v. State of Missouri, 120 U.S. 68, 71 (1887). The protec-

tion afforded by the equal protection provision of the

Wisconsin Constitution is substantially equivalent to

the due process and equal protection clauses of the

Fourteenth Amendment to the United States Consti-

tution. Yotvat v. Roth, 95 Wis. 2d 357, 363 n.1, 290

N.W.2d 524 (Ct. App. 1980). Traditionally, two stan-

dards have been applied when a statute, or its applica-

tion, is challenged on equal protection grounds.

The “strict scrutiny” test is applied when

the case involves 2 suspect classification or a funda-

mental right. Suspect classifications are those involv-

ing ract, McLaughlin v. Florida, 379 US. 184, 191-92

(1964); ancestry, Oyama v. California, 332 U.S. 633, 644-

46 (1948); and alienage, Graham v. Richardson, 403 U.S.

365, 372 (1971). Fundamental rights include privacy,

Roe v. Wade, 410 U.S. 113, 154-64 (1973); marriage,

Zablocki v. Redhail, 434 U.S. 374, 383-87 (1978); voting,

Bullock vy. Carter, 405 U.S. 134, 144 (1972); travel, Shapiro

y. Thompson, 394 U.S. 618, 627 (1969); and freedom of

association, N.A.A.C.P. v. Alabama, 357 U.S. 449, 460-

62 (1958). In Munn v. Illinois, 94 U.S. 113, 134 (1877), the

United States Supreme Court held that a person has no

property right or vested interest in any rule of common

law. Since the right to recover in a personal injury

action is generally a part of the common law, it is not a

fundamental right under the Constitution.

The “rational basis” test is used to analyze

economic or social legislation which does not involve

either a suspect classification or a fundamental right.

Duke Power Co. v. Carolina Environmental Study

Group, 438 U.S. 59, 82-84, 93-94 (1978); McGowan v.

Maryland, 366 U.S. 420, 425-26 (1961). Under the “ra-

tional basis” test, a challenged classification must ra-

tionally relate to a legitimate state interest. See

McGowan, 366 U.S. at 425. Under this “rational basis”

test, the Court will give broad authority to a state

legislature to establish different classifications in eco-

nomic and social legislation. As the Court noted in

McGowan:

The constitutional safeguard is offended

only if the classification rests on grounds

wholly irrelevant to the achievement of the

State’s objective. State legislatures are pre-

sumed to have acted within their constitu-

tional power despite the fact that, in prac-

tice, their laws result in some inequality. A

statutory discrimination will not be set

aside if any statement of facts reasonably

may be conceived to justify it.

Id. at 425.

In considering statutes which provide that

medical malpractice victims are treated differently than

victims of other torts, the Fourth, Fifth, Eighth, and

Ninth Circuits have all applied the “raticnal basis” test.

See Hoffman v. United States, 767 F.2d 1431, 1435-36

(9th Cir. 1985); Fitz v. Dolyak, 712 F.2d 330, 332 (8th Cir.

1983); DiAntonio vy. Northampton-Accomack Memo-

rial Hosp., 628 F.2d 287,291 (4th Cir. 1980); and Woods

y. Holy Cross Hosp., 591 F.2d 1164, 1173 (Sth Cir. 1979).

Even under this standard of review, however, the

interpretation of the Wisconsin Supreme Court of

Wisconsin's “cap” onnoneconomic damages in medical

malpractice claims is repugnant to the Equal Protection

Clause of the United States Constitution.

C. The Statutory Classifications Created By

The Wisconsin Supreme Court's Decision

Are Repugnant To The Equal Protection

Clause.

Prior to the enactment of the “cap” statute

in 1986, there was no limitation on noneconomic

damages in medical malpractice actions in Wisconsin.

Wisconsin, like numerous other states in the nation,

enacted a statutory “cap” on noneconomic damages as

a legislative response toa perceived medical malpractice

insurance eae See Comment, namely

Marq. 1 Rev. 235 (1989). el tate Caemmant,

Between 1960 and 1970, insurance rates

for physicians increased dramatically.

Rates for non-surgical physicians in-

creased an average of 540.8%, while the

rates for surgical physicians increased an

astounding 949.2%.

72 Mara. L. Rev. at 235.

ii ell

The rationale for “caps,” or limitations on

damages in medical malpractice cases, was explained

by the California Supreme Court in Fein v. Permanente

Medical Group, 211 Cal. Rptr. 368, 695 P.2d 665, 680

(1985), appeal dismissed, 474 U.S. 892 (1985):

(I]n enacting [the statute] the Legislature

was acting in a situation in which it had

found that the rising costs of medical

malpractice insurance was posing serious

problems for the health care system in

California, threatening to curtail the avail-

ability of medical care in some parts of the

state and creating the very real possibility

that many doctors would practice without

insurance, leaving patients who might be

injured by such doctors with the prospect

of uncollectible judgments. In attempting

to reduce the costs of medical malpractice

insurance . . . , the Legislature en-

acted a variety of provisions affecting

doctors, insurance companies and mal-

practice plaintiffs.

The United States Court of Appeals for the

Ninth Circuit also considered the California “cap” on

noneconomic damages in medical malpractice actions,

and found that “[i]t was reasonable for the lawmakers

to believe that placing a ceiling on noneconomic

damages would help reduce medical malpractice in-

surance premiums.” Hoffman v. United States, 767 F.2d

at 1437.

Clearly, by enacting Sec. 893.55(4),

Wis. Stats., the Wisconsin legislature sought to deal

with the perceived medical malpractice crisis by limit-

ing, and not expanding, the liability of health care

providers. Clearly, the “legislative purpose” behind

the statute was to limit the liability of a health care

provider, in order to help reduce medical malpractice

insurance premiums, and thereby ameliorate the per-

ceived medical malpractice liability crisis. In so doing,

the “cap” statute furthered the legitimate state interest

of ensuring the availability and affordability of medi-

calcare. As the Wisconsin Court of Appeals noted in its

unanimous decision in this case, the Wisconsin legisla-

ture did not intend to expand the liability of health care

providers, or remove any previously imposed limits

on damages recoverable in wrongful death actions.

Rineck v. Johnson, 150 Wis. 2d at 238-39, 440 N.W.2d

at 832.

It is undisputed that, prior to the enactment

of the “cap” statute, Sec. 893.55(4), Wis. Stats., the

wrongful death statutory limitation applied to medical

malpractice/ wrongful death cases. Now, under the

Wisconsin Supreme Court’s new interpretation of Secs.

893.55(4) and 895.04(4),Wis. Stats.,thestatutory limi-

tations for loss of society and companionship ($50,000)

set forth in the wrongful death statute no longer apply

to medical malpractice actions. Under the new inter-

pretation of the Wisconsin Supreme Court, the poten-

tial liability of a health care provider in a wrongful

death action is increased to up to $1,000,000. In other

words, the interpretation of Sec. 893.55(4),Wis. Stats.,

by the Wisconsin Supreme Court in this case expands

the liability of health care providers in medical mal-

practice actions involving death. This interpretation is

in direct conflict with the intent behind the enactment

of the noneconomic statutory “cap” enacted by the

legislature, ie., to limit the liability of health care

providers.

Because the decision of the Wisconsin Su-

preme Court interprets Sec. 893.55(4), Wis. Stats., to

increase and expand the liability of health care providers

in wrongful death actions, there is no rational rela-

tionship between theclassification created by thecourt’s

interpretation and the clear legislative purpose behind

the “cap” statute. Instead, the court's interpretation of

the “cap” statute is completely contrary to the legiti-

mate state purpose of the “cap,” and, therefore, the

classifications created by this interpretation of the stat-

ute violate the Equal Protection Clause to the United

States Constitution? There simply is no rational basis

for increasing the liability of health care providers to 20

times the liability of all other citizens! The decision of

the Wisconsin Supreme Court must be struck down.

The supreme court's interpretation creates two classifi-

cations in wrongful death actions: (1) actions against health care

providers; and (2) actions against all other citizens.

II. THE ISSUE OF STATUTORY LIMITS

ON DAMAGES IN TORT CASES IS

AN ISSUE OF NATIONAL

SIGNIFICANCE.

At least thirty state legislatures have at one

time enacted “cap” statutes which limit, in some fash-

ion, the amount which a litigant may receive as a

damage award in various circumstances. See: ALASKA

STAT. § 09.17.010 (Supp. 1986); CAL. CIV. CODE §

3323.2 (West Supp. 1989); COLO. REV. STAT. § 13-21-

102 (1987 & Supp. 1988); COLO. REV. STAT. § 13-21-

102.5 (1987 & Supp. 1988); FLA. STAT. ANN. § 768.80

(Harrison Supp. 1988); GA. CODE ANN. § 51-12-5.1

(Michie Supp. 1988); HAW. REV.STAT. § 663-8.7 (Supp.

1987); IDAHO CODE §§ 6-1603, -1604 (Supp. 1988);

IND. CODE ANN. § 16-9.5-2-2 (West 1984 & Supp.

1988); KAN. STAT. ANN. § 60-3407 (Supp. 1988); LA.

REV. STAT. ANN. § 40:1299.39 (West 1977 & Supp.

1989); LA. REV. STAT. ANN. § 40:1299.42 (West 1977 &

Supp. 1989); MD. CTS. ANDJUD. PROC. CODE ANN.

§ 11-108 (Supp. 1988); MASS. GEN LAWS ANN.

Ch. 231§ 60(H) (West Supp. 1989); MICH, COMP.

LAWS ANN. § 600.1483 (West Supp. 1988); MINN.

STAT. ANN. § 549.23 (West 1988); MO. ANN. STAT. §

538.210 (Vernon 1968); MONT. CODE ANN. § 2-9-108

(1987); NEB. REV. STAT. § 44-2825 (1988); N.H. REV.

STAT. ANN. § 508: 4-d (Supp. 1988); N.J. STAT.

ANN. § 2A:53A-8 (West 1987); N.M. STAT. ANN. § 41-

5-6 (1986 & Supp. 1987); N.D. CENT. CODE ANN. §

26.1-14-11 (Supp. 1987); OKLA. STAT. ANN. tit. 23,§9

(1987 & Supp. 1989); OR. REV. STAT. ANN. § 18.560

(Butterworth 1988); PA. CONS. STAT. ANN. § 8528

(Purdon 1985 & Supp. 1988); S.D. CODIFIED LAWS

ANN. § 21-3-11 (1987 & Supp. 1988); TEX. CIV. PRAC.

& REM. CODE ANN.§ 41.007 (Vernon Supp. 1989);

TEX. REV. CIV.STAT. ANN. art. 4590(i) (Vernon Supp.

1989); UTAH CODE ANN. § 78-14-7.1 (1987 & Supp.

1988); VA. CODE ANN. § 8.01-5.81.15 (1984 & Supp.

1988); WASH. REV. CODE ANN. § 4.56.250 (1988); W.

VA. CODE § 55-7B-8 (Supp. 1988); WIS. STAT. ANN. §

893.55 (West 1983 & Supp. 1988).

There have been at least fifteen reported

decisions in which lower courts have wrestled with the

constitutionality of these various “cap” statutes. See

e.g., Virginia, Etheridge v. Medical Center Hosp., 237

Va. 87,376 S.E.2d 525 (Va. 1989); Maryland, Franklin v.

Mazda Motor Corp., 704 F. Supp. 1325 (D. Md. 1989);

Washington, Sofie v. Fibreboard Corp.,112Wash. 2d

636, 771 P.2d 711 (1989); Kansas Kansas Malpractice

Victims Coalition y. Bell, 243 Kan. 333, 757 P.2d 251

(1988); Texas, Lucas v. United States, 757 S.W.2d 686

(Tex. 1988);Florida, Smith v. Department of, Ins., 507

So. 2d1080(Fla. 1987); California, Fein y. Permanente

Medical Group, 38 Cal. 3d 137,695 P.2d 665, 211 Cal.

Rptr. 368 (1985); Louisiana, Sibley v. Board of Super-

visors of La. State Univ., 462 So. 2d 149 (1985), re-

mand on motion for reconsideration, 477So0. 2d 1094

(1985); Ohio, Duren v. Suburban Community Hosp., 24

Ohio Misc. 2d 25, 495 N.E.2d 51 (C.P. Ohio 1985);

Indiana, Johnson v. St. Vincent Hosp., 404 N.E.2d 585

(Ind. 1980); New Hampshire, Carson v. Maurer, 120N.H.

925, 424 A.2d 825 (1980); North Dakota, Ameson v.

Olson, 270 N.W.2d 125 (N.D. 1978); Nebraska,

Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657

(1977); Idaho, Jones v. State Bd. of Medicine, 97 Idaho

859, 555 P.2d 399 (1976); Illinois, Wright v. Central

DuPage Hosp. Ass’n, 63 Ill. 2d 313, 347 N.E.2d 736

(1976). In some states, the statutes were overturned as

unconstitutional, while in other states the statutes have

been upheld. None of the cases that have analyzed the

constitutionality of the cap involve the wrongful death

statute limitation in conjunction with the “cap” on

damages. However, most states that have caps on

damages also have wrongful death statutes.

The constitutions of the individual states

may afford litigants greater rights and protections than

are afforded under the Constitution of the United States.

See Carson v. Maurer,424A. 2d 825,831 (N.H. 1980).

However, itis well-settled that under an equal protection

analysis, the rights afforded to litigants by the Equal

Protection Clause of the United States Constitution are

applicable to all of these statutorily-created classifica-

tions, and the United States Supreme Court has an

opportunity in this case to enunciate guidelines which

will be applicable to all of the statutes enacted by all of

the various state legislatures, and all of the cases of the

various lower courts which have considered the con-

stitutionality of those statutes.

III. THIS CASE IS APPROPRIATE FOR

REVIEW.

A. The Creation Of Separate and Unequal

Classifications In Wrongful Death

Lawsuits In Wisconsin Is Not Grounded

On Any Recognized State Constitutional

Principle.

As already noted above, the Wisconsin Su-

preme Court's interpretation of that state’s “cap” on

damages in medical malpractice actions har no rational

basis, and is, therefore, clearly repugnant to the Equal

Protection Clause of the United States Constitution

under the least strict test applied by the courts. Fur-

thermore, there is no separate and distinct basis in the

Constitution of the State of Wisconsin which provides

some special basis for the interpretation adopted by the

Wisconsin Supreme Court. The protection afforded by

the equal protection provision of the Wisconsin Con-

stitution is substantially equivalent to the protections

afforded by the Equal Protection Clause of the United

States Constitution. Yotvat vy. Roth, 95 Wis. 2d 357,

363 n.1,290 N.W.2d 524 (Ct. App. 1980); InreSeraphim,

97 Wis. 2d 485, 496, 294 N.W.2d 485 (1980), cert.

denied, 449 U.S. 994 (1980). There is no separate, state

right or principle which permits the Wisconsin Su-

preme Court to ignore the protections given to all

citizens by the Equal Protection Clause of the United

States Constitution.

B. The Equal Protection Issue Raised By

The Holding Of The Wisconsin

Supreme Court In This Case Is

Properly Before The United States

Supreme Court.

When this case was initially considered, it

appeared to be a straightforward case of statutory

interpretation, in which constitutional issues did not

need to beaddressed. The Wisconsin Court of Appeals

unanimously held that the statutory limits of liability

contained in the wrongful death statutes, Sec. 895.04(4),

Wis. Stats., could be harmonized with the medical

malpractice “cap” statute, Sec. 893.55(4), Wis. Stats.

Rineck v. Johnson, 150 Wis. 2d 232, 440 N.W.2d 830

(App. 1989). There was no need to raise the constitu-

tional question of equal protection, because the Wis-

consin Court of Appeals had no difficulty in resolving

the issue by well-settled rules of statutory interpreta-

tion. After the Wisconsin Court of Appeals ruled, all

citizens of Wisconsin were treated equally insofar as

the damage limits imposed on loss of society and

companionship in wrongful death cases.

It was Ricky Rineck, not the petitioners,

who pursued the matter to the Wisconsin Supreme

Court. Petitioners had no reason to challenge the

constitutionality of the “cap” on medical malpractice

damages, because petitioners did not believe that that

statute was unconstitutional. When viewed as an

attempt to limit - as opposed to increase or expand - the

potential damage liability of health care providers, the

“cap” statute does bear a rational relationship to a

legitimate state interest. However, when the Wiscon-

sin Supreme Court unexpectedly turned the “cap”

statute on its head, and held that it increased the po- :

tential liability for damages resulting from the loss of )

society and companionship ofa decedent ina wrongful

death action from $50,000 up to $1,000,000, this new

interpretation of the “cap” statute created obvious

equal protection questions.

The jurisdiction of the United States Su-

preme Court is properly invoked under the rule of

Missouri v. Gehner, 281 U.S. 313 (1930), where the

petitioner first invoked the protection of the federal

Constitution on a motion for reconsideration in the |

State Supreme Court. In that case, the court established

the principle that a claim for protection under the

United States Constitution is timely, if the ruling of the

highest court could not have been anticipated and a

petition for rehearing preserited the first opportunity

for raising it. See also Brinkerhoff-Faris Trust & Sav.

Co. v. Hill, 281 U.S. 673 (1930); Great Northern Ry. Co.

y. Sunburst Oil & Ref. Co., 287 U.S. 358 (1932).

This case was the first time that the Wiscon-

sin Supreme Court had dealt with the “cap” statute.

Petitioners immediately brought a motion for recon-

sideration before the Wisconsin Supreme Court, asking

that court to consider the constitutional issue raised by

its new interpretation of the “cap” statute. Since this

was the first time that the “cap” statute had been

interpreted to increase, instead of “cap” damages, it

was the first opportunity petitioners had to raise the

constitutional issues in an Appellate Court of record.

The record in this case demonstrates that the case was

changed in the Wisconsin Supreme Court from a

straightforward matter of statutory interpretation to a

court ruling which created an entirely new and sepa-

rate classification of wrongful death litigants.

CONCLUSION

The holding of the Wisconsin Supreme

Court in this case clearly creates two separate, and

unequal, classifications of wrongful death litigants. In

wrongful death actions against health care providers,

the defendant healthcare provider is subject toa liability

exposure for the loss of society and companionship of

the decedent in the sum of $1,000,000. For all other

Wisconsin litigants, the limit on liability is the sum of

$50,000 for exactly the same loss. Even under the least-

strict constitutional analysis, there is no rational basis

which will support this new, separate, and unequal

classification established by the Wisconsin Supreme

Court.

This case presents an issue of national sig-

nificance. At least thirty (30) states have established

“caps” on tort damage awards, and at least fifteen (15)

courts of record have wrestled with the constitutional

questions raised by such “cap” statutes. Moreover,

virtually every state in this country has wrongful death

statutes, which will impact on the application of

statutory caps. The narrow framework of this case

presents the United States Supreme Court with an

opportunity to provide guidelines for state legislatures

and courts throughout the nation on the parameters set

by the United States Constitution on an issue of con-

tinuing national importance.

For all of the foregoing reasons, petitioners

respectfully request that the Supreme Court of the

United States issue its Writ of Certiorari to the Supreme

Court of the State of Wisconsin, and consider the con-

stitutional issue raised by this case.

If the Court believes it would be more ap-

propriate to allow the Wisconsin Supreme Court to

consider the constitutional implications of its inter-

pretation of Wisconsin’s “cap” statute, then petitioners

respectfully request that, pursuant to 28 U.S.C. Sec. 2106,

the court remand this matter to the Wisconsin Supreme

Court for further proceedings. See Wood v. Georgia, 450

US. 261 (1981). The decision of the Wisconsin court

clearly establishes separate and unequal classifications

of litigants, without any apparent rational basis. Such

an unconstitutional holding must not be allowed to

stand.

Respectfully submitted this 31* day of Oc-

tober, 1990.

——a, =a, A

SCHELLINGER & DOYLE, S.C.

, Attorneys for Petitioners

By: _/s/ Timothy J. Strattner

Timothy J. Strattner

Counsel of Record for Petitioners

POST OFFICE ADDRESS:

Schellinger & Doyle, S.C.

15700 West Bluemound Road

P. O. Box 464

Brookfield, WI 53008-0464

414-785-0200

PETITIONERS’ APPENDIX

Contents

Opinion Of Wisconsin Supreme Court -oececcscssscssssessssesessesee Al

Order Of Wisconsin Supreme |

Court Denying Motion For Reconsideration .....:::cces0s...... A-16

Remittitur e-secececeeceseece Ar 18

Motion For Reconsideration In

Wisconsin Supreme Court .......-sssvssessssssssssssssesessssesessesssssee A-20

Memorandum In Support of

Motion For Reconsideration ..........cscvssssssssssssssessesesecsnseesessees A-22

Opinion Of Wisconsin Court Of FRIED arcnncsscssesmmsitscontennes A-38

Judgment Of Chippewa County Circuit Court ..-.ccesess..... A~46

Memorandum Opinion Of

Chippewa County Circuit Court ...c.ccccsssssssssssssssessesessessesssses A-49

Ricky F. Rineck, Individually, as surviving husband

of Joy E. Rineck, and as guardian for Rachel J. Rineck,

a minor, Plaintiff-Respondent-Cross Appellant-

Petitioner,

Vv.

Leonard C. JOHNSON, CRNA, Luther Hospital, St.

Paul Fire & Marine Insurance Company, and Wiscon-

sin Patients Compensation Fund, Defendants-Appel-

lants-Cross Respondents,”

BLUE CROSS & BLUE SHIELD UNITED OF WIS-

CONSIN, Defendant.

Supreme Court

No. 88-1555. Argued March 27, 1990.—Decided June 14,

1990.

REVIEW of a decision of the Court of Ap-

peals affirming in part and reversing in part a judgment of

the Circuit Court for Chippewa County, Judge Richard

Stafford. Affirmed in part, reversed in part, and remanded

to the trial court for further proceedings.

For the plaintiff-respondent-cross appel-

lant-petitioner there were briefs by Howard S. Marker,

Minneapolis, Minnesota, and oral argument by Howard S.

Marker.

* Motion for reconsideration filed.

A-1

For the defendants-appellants-cross re-

spondents there was a brief by Timothy J. Strattner and

Schellinger & Doyle,S.C., Brookfield and oral argument by

Mr. Strattner.

WILLIAM A. BABLITCH, J. 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 plaintiffs

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 compan-

ionship 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 ser-

vices 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 recov-

ery for total noneconomic damages imposed by the specific

statutes applicable to malpractice actions supersedes the

$50,000 limitation contained in the wrongful death stat-

utes. 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-maijority 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.

A-2

The facts for the purposes of this review are

undisputed. Joy Rineck was admitted to the hospital foran

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 purport-

edly 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 asa result of Joy Rineck’s injuries and death, and as

a result of Rachel’s own injuries. That action was trans-

ferred without a hearing to circuit court when the legisla-

ture changed the procedure for prosecuting medical mal-

practice claims later that year. Rineck filed an amended

complaint alleging a negligence action on his own behalf

anda negligenceaction 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 mo-

tions: (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 eigh-

teenth 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 super-

seded 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 malprac-

tice statutes.

However, the trial court granted the defen-

dants’ 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-major-

ity 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 theamount

representing loss of child care services should be elimi-

nated 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.

Thecourt ofappeals 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. How-

ever, 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 majority.

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 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 con-

clude that a minor child may maintain an independent

cause ofaction for loss of society and companionship when

medical malpractice caused the death of a parent. Finally,

A-5

we conclude that the surviving spouse may not recover

damages for post-majority loss of child care services.

I. Noneconomic damages limitations

Weturm 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 pros-

ecution of malpractice claims against a health care pro-

vider, 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 mal-

practice apart from other tort claims, and parties are con-

clusively 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., isa 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 ac-

tions. 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. . .

A+4

, ee sil ,

is subjected to the limit under s. 893.55(4).” Section

893.55(4)(b) provides:

The total noneconomic dam-

ages recoverable under ch. 655 for bodily

injury or death, including any action or

g based on contribution or in-

demnification, may not exceed the limit

under par. (d) for each occurrence from all

health care providers and all employees

of health care providers acting within the

scope of their employment and providing

health care services who are found negli-

gent and from the patients compensation

fund for any action filed on or after June

14, 1986 and before January 1, 1991. (Em-

phasis added.)

The limitation contained in par. (d) refer-

enced 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 iden-

tify 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. How-

ever, they argue that thecomponent represented by society

and companionship is itself limited to $50,000 by the

wrongful death statute, sec. 895.04(4), Stats. We disagree.

A-7

Significantly, ch. 655, Stats., does not state

that damages recoverable in medical malpractice cases are

also subject to the $50,000 limitation under the general

wrongful death provisions of sec. 895.04(4). Had the legis-

lature desired to appropriate the more restrictive damage

limits of sec. 895.04(4) it would have provided so explicitly

as it did in other instances. Chapter 655 incorporates by

specific reference certain other statutes which the legisla-

ture intended to apply in medical malpractice actions. For

instance, the comparative fault statute, sec. 895.045, is

specifically incorporated into ch. 655 by sec. 893.55(4)(c).

Section 655.27(5)(d) provides that no interest may be paid

by the fund on the unpaid portion of any claim filed under

the paragraph except as provided under secs. 807.01(4),

814.04(4), or 815.05(8). Moreover, prior to the repeal of the

panel procedure, the Rules of Civil Procedure were specifi-

cally incorporated by sec. 655.17(1). Wedo not believe that

the legislature would have taken pains to specifically refer

to particular statutes such as these if it intended to incorpo-

rate without mention other miscellaneous general provi-

sions, such as sec. 895.04(4).

It is also significant to note that grafting the

general wrongful death damages limitation under sec.

895.04(4), Stats, onto ch. 655 creates an anomaly in the

computation of damages where comparative fault is a

factor. As the trial court correctly observed, both statutes

require a reduction for comparative fault pursuant to sec.

895.045. However, they do so in completely different

ways. For example, to calculate the award in a medical

malpractice action, the total noneconomic damages are

found without regard to the $1,000,000 limit. Where appli-

A-8

cable, the comparison found under sec. 895.045 is applied,

and then the result, if higher than the limit, is reduced to the

limit. See sec. 893.55(4)(c). This approach is directly

contrary to the current calculation used in the wrongful

death statute. See sec. 895.04(7). Under sec. 895.04(7),

reduction of noneconomic damages to the statutory limit

precedes reduction for comparative fault. See also D.

Saichek, A Summary of the New Statutes Governing Medical

Malpractice, Wisconsin Bar Bulletin 8, 10 (October 1986).

The verdict reduction provisions of the

wrongful death and medical malpractice statutes would

therefore produce different damage awards even if the

damage limits were the same. To illustrate, assume both

statutes imposed a $50,000 limit in a case where the jury

awards $250,000 for loss of society and companionship and

the victim is assessed 20 percent fault. After reduction

under the wrongful death statute, that award would be

$40,000 ($250,000 first reduced to $50,000 by application of

the limit, then reduced by the plaintiff's comparative fault.)

However, under the medical malpractice version, the same

award nets $50,000 ($250,000 reduced to $200,000 for the

plaintiff's comparative fault, then reduced to the lesser of

that amount or the limit).

Grafting the wrongful death statute’s ver-

dict reduction procedure onto ch. 655, Stats., would also

create different substantive rights in cases involving injury

and those involving death, contrary to the express legisla-

tive intention to treat medical malpractice claims involving

“injury or death” in exactiy the same manner. See secs.

655.005, 655.007. For example, the $1,000,000 limitation on

total noneconomic damages would apply if the plaintiff

Ad .

was injured by medical malpractice, but the $50,000 limita-

tion of the wrongful death statute would apply if the

injuries resulted in death.

Accordingly, we conclude that the $50,000

limitation under the general wrongful death provisions of

sec. 895.04(4), Stats, is inapplicable to this action involving

medical malpractice. The trial court correctly determined

that the limitation established by sec. 895.04(4) was super-

seded in medical malpractice actions by virtue of the

$1,000,000 limitation in sec. 893.55(4). The decision of the

court of appeals is therefore reversed, and the jury’s award

for loss of spousal society and companionship is iein-

stated.

Il. Rachel's loss of society and companionship

The second issue preserted involves

whethera 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. AS an element of common law, the

doctrine permitting recovery for loss of society and com-

panionship was initially created and developed by courts

of law. Shockley v. Prier, 66 Wis. 2d 394, 401,225 N.W.2d 495

(1975). Thus, this is an area where either this court or the

legislature may act. Id.

In Moran v. Quality Aluminum Casting Co.,34

Wis. 2d 542, 150 N.W.2d 137 (1967), wedeclared forthe first

time that a woman could maintain an actio for the loss of

her husband's consortium. We stated at 551-52:

A-10

The genius of thecommon law

is its ability to adapt itself to the changing

needs of society. Because the bases on

which the old common-law rule which

denied to the wife the right of recovery for

loss of her husband’s consortium rest on

historical concepts which long ago disap-

, we deem the rule of Nickel v.

Hardware Mut. Casualty Co. should be

overruled .. ..

In Shockley, 66 Wis. 2d at 401, we concluded

for the first time that “the law should recognize the right of

parents to recover for loss of aid, comfort, society and

companionship of a child during minority when such loss

is caused by the negligence of another.” The Shockley

decision focused upon the changes in the family relation-

ship which occurred since 1925, when the court found that

parents could recover only for the loss of the minor's

earning capacity and reasonable medical and nursing ex-

penses during minority. Id. at 396-97 (citing Callies v. Re-

liance Laundry Co., 188 Wis. 376, 380, 206 N.W. 198 (1925)).

In rejecting the argument that if such a change is to be

made, it should be made by the legislature and not the

courts, we reiterated that the common law is a developing

body of law and that it is as much the court’s responsibility

as the legislature’s to make changes in the law where the

common law rule no longer fits present-day social realities.

Shockley at 397-99.

In Theama v. City of Kenosha, 117 Wis. 2d 508,

527,344 N.W.2d 513 (1984), we were faced with the reverse

situation of that found in Shockley, namely whether the

minor children of an injured parent could maintain an

—-

action for loss of society and companionship. We stated

that it was “only logical that the next step in this progres-

sion is to protect the child's interest in the parent-child

relationship.” Theama, 117 Wis. 2d at 519. We recognized

that the majority of jurisdictions addressing the issue re-

fused to recognize the cause of action. However, we noted

an emerging trend towards recognition, and were per-

suaded by the rationale found in those decisions. Id. at 520.

Accordingly, we did not await legislative creation of a

cause of action, but rather held that a “child may bring a

cause of action for the loss of a parent’s society and com-

panionship resulting from another's negligence.” id. at

527.

The defendants argue that Theama is dis-

tinguishable on the grounds that the case involved an

injury to the parent, rather than death asin the present case.

When death results, the defendants insist that the provisions

of sec. 895.04(2), Stats., disallow a child an independent

cause of action when the deceased parent is survived by his

or herspouse. In support of their argument, the defendants

cite Hanson v. Valdivia, 51 Wis. 2d 466, 475, 187 N.W.2d 151

(1971), where in applying sec. 895.04(2), this court stated:

[SJurviving children do not

have a cause of action for the wrongful

death of one of their parents when the

decedent is survived by his or her spouse

..» When there is a surviving spouse the

action must be brought by or on behalf of

that spouse, and the only special protec-

tion afforded the children is that the court

may, in its discretion, impose a lien in

favor of the children on the amount recov-

ered, not in excess of 50 percent of the

recovery.

A-12

We disagree that sec. 895.04(2), Stats, pre-

vents recovery in the case presently before us. Rachel’s

claim originates under ch. 655 rather than the general

wrongful death statutes. Chapter 655 controls all claims

“for injury or death on account of medical malpractice...”

Section 655.007. As stated previously, by singling out

medical malpractice claims in such a mann=r, the legisla-

ture intended to set medical malpractice cases involving

death apart from other death cases to which the general

wrongful death statute applies. Therefore, sec. 895.04(2)

does not preventa minor child from maintaining a cause of

action for loss of society and companionship when medical

malpractice causes the death of a parent.

Wethus conclude that the reasons expressed

in Theama for recognizing a minor child’s cause of action for

loss of society and companionship in cases involving in-

jury to the parent apply with equal force to cases where

medical malpractice causes death. Chapter 655, Stats.,

recognizes that there is no logical distinction between

injury and death claims arising out of medical malpractice.

Once medical malpractice produces a loss, a remedy exists

regardless whether the consequence is injury or death. We

further conclude consistent with Theama, the recovery un-

der this cause of action is limited to the child’s minority,

since the minor is the one whose relationship is most likely

A-13

to be severely affected by negligent injury or death to the

parent. Id. at 527.’

Because the trial court precluded Rachel’s

claim for loss of her mother’s society and companionship,

and the court of appeals affirmed that determination, the

matter is remanded to the trial court for further proceed-

ings on this issue.

III. Post-majority loss of child care services.

The third issue involves whether Rineck is

entitled to compensation for the loss of his wife’s child care

services beyond the child’s eighteenth birthday. Rineck

argues that Rachel, who has allegedly suffered severe and

permanent injuries, will require support and maintenance

well beyond her minority. Therefore, Rineck insists that he

should beable to recover the value of these services his wife

would have provided.

We agree with the court of appeals that the

amount the jury awarded Rineck for child care services

after Rachel reached age eighteen is not recoverable. We

recently stated in Marciniak v. Lundborg, 153 Wis. 2d 59,71,

450 N.W.2d 243 (1990), that the parental duty of support

ordinarily ceases at the age of majority. This rule involves

a recognition that parents are obligated by law to provide

‘In light of the fact that Rachel's claim for her injurics was bifurcated,

and for the aid of the trial courts, we declare for reasons identical to those

expressed in Moran, 34 Wis. 2d at 558, and Shockley, 66 Wis. 2dat404,

that a child’ s cause of action for loss of society and companionship must

be joined with that of the injured parent, if feasible, and the claimant has

the burden to establish that it was infeasible for his or her claim to be

joined. By so req , the ity of double recovery can be

guarded against by the special verdict and the accompanying

instructions to the j pommaein clea See Moran, at 558; see

= os). by Huggins v. Sea Ins. Co., Lid., 710 F. Supp. 243 (E.D.

is. 1989.

A-14

careonly through their child’s minority. See sec. 49.90(1)(a),

Stats. In addition, this rule provides parity with the afore-

mentioned rationale of Theama, which limits a child's loss

of society and companionship to the period of minority.

We recognize that in certain instances this result may seem

harsh. However, we consider the decision as to any change

in the limitation on recovery for the support of a child to be

a public policy matter uniquely within the province of the

legislature. See Steinbarth v. Johannes, 144 Wis. 2d 159, 164,

423 N.W.2d 540, 541 (1988).

Weemphasize, however, as did the court of

appeals, that this is an action brought by the surviving

spouse for the death of his wife. The claims relating to

Rachel's injuries were bifurcated and therefore we are not

reviewing damages awarded to Rachel in her own right for

injuries she received as a result of the medical malpractice.

Accordingly, nothing in this decision precludes Rachel

from recovering damages for the special care she may need

beyond the age of majority in her own action based on the

defendant's negligence.

By the Court.—The decision of the court of

appeals is affirmed in part, reversed in part, and remanded

to the trial court for further proceedings.

A-15

———— i OS

SUPREME COURT

OF WISCONSIN

P.O. BOX 1688

MADISON, WI 53701-1688

TELEPHONE (608) 266-1880

MARILYN L. GRAVES

CLERK

SEPTEMBER 13, 1990

TO: HOWARD S. MARKER

JAMES G. DOYLE

TIMOTHY J. STRATTNER

THE COURT TODAY ANNOUNCED AN ORDER IN

YOUR CASE AS FOLLOWS:

DISTRICT 3

RINECK, R. v. JOHNSON, L., 88-1555

MOTION FOR RECONSIDERATION DENIED,

WITH $50.00 COSTS.

J. ABRAHAMSON DISSENTS—MEMO FILED.

MARILYN L. GRAVES

CLERK OF SUPREME COURT

A-16

No. 88-1555

RICKY F. RINECK et al.,

Plaintiff-Respondent-Cross Appellant-Petitioner,

LEONARD C. JOHNSON et al.,

Defendants-A ppellants-Cross Respondents.

Shirley S. Abrahamson, J. (dissenting). I

would grant defendants-appellants-cross respondents’

motion for reconsideration on the issue of whether the

court's interpretation of secs. 893.55(4) and 895.04(4), Stats.,

violated the equal protection clauses of the Wisconsin and

federal constitutions. The motion asserts that the court's

interpretation of the law unconstitutionally divides tort

victims in wrongful death actions into two classes: victims

of health care providers and victims of all other tortfeasors.

This issue was not argued by the parties or considered by

thecourt. Theissueis one that will be raised in future cases.

In the interest of judicial economy, I believe

this court ought to decide this issue now for the benefit of

litigants, lawyers, circuit courts and the court of appeals. |

would grant the motion, require the parties to brief and

argue this significant constitutional issue, and give the

attorney general an opportunity to file a brief on the

constitutional issue.

A-17

RICKY F. RINECK, INDIV., AS APPEAL NO. 88-1555

SURVIVING HUSBAND OF J E.

RINECK, AND AS GDN. FOR RACHEL

J. RINECK, A MIN

PLAINTIFF-RESPONDENT-CROSST.Ct. NO. 86 CV 378

APPELLANT-

PETITIONER,

LEONARD C. JOHNSON, CRNA

LUTHER HOSPITAL,

ST. PAUL FIRE & MARINE INSURANCE CO.,

ANDWISCONSIN PATIENTS COMPENSATION FUND,

DEFENDANTS-APPELLANTS-CROSS RESPON-

DENTS, ,

BLUE CROSS & BLUE SHIELD

UNITED OF WISCONSIN,

DEFENDANT.

THIS CAUSE WAS A REVIEW OF

THE ORDER/DECISION OF THE COURT OF

APPEALS. ON CONSIDERATION WHEREOF,

IT IS NOW HERE ORDERED AND ADJUDGED

BY THIS COURT IN AN OPINION FILED ON

JUNE 14, 1990, THAT:

The decision of the Court of Appeals is

affirmed in part, reversed in part,and remanded to the trial

court for further proceedings.

A-18

WILLIAM A. BABLITCH Wrote Decision/

Opinion 016 PAGES

THE APPEAL RECORD IS HEREBY RE-

TURNED TO CLERK OF CIRCUIT COURT FOR

CHIPPEWA COUNTY.

I CERTIFY THAT THE ABOVE JS A COR-

RECT

TRANSCRIPT OF THE ORIGINAL ORDER

ANDJUDGMENT OF THE COURT IN THE

ABOVE-ENTITLED CAUSE.

DATED:

SEPTEMBER 13, 1990.

/S/MLG

MARILYN L. GRAVES

CLERK, SUPREME COURT

A-19

SUPREME COURT OF WISCONSIN

RICKY F. RINECK, Individually,

as Surviving Husband of JOY E.

RINECK, and as Guardian for

RACHEL J. RINECK, a Minor,

Plaintiff-Respondent-

Cross Appellant-Petitioner,

vs. Case No. 88-1555

LEONARD C. JOHNSON, CRNA,

LUTHER HOSPITAL, ST. PAUL

FIRE & MARINE INSURANCE

COMPANY and WISCONSIN

PATIENTS COMPENSATION FUND,

Defendants-Appellants-

Cross Respondents,

and

BLUE CROSS BLUE SHIELD

UNITED OF WISCONSIN,

Defendant.

MOTION FOR RECONSIDERATION

The defendants-appellants-cross-respon-

dents, Leonard C. Johnson, CRNA, Luther Hospital, St.

Paul Fire & Marine Insurance Company, and the Wiscon-

sin Compensation Fund, move the court, pursuant to secs.

A-20

809.64 and 809.14, Wis. Stats., for reconsideration of the

supreme court's decision filed on June 14, 1990, on the

grounds that the court’s application of secs. 893.55(4) and

895.04(4), Wis. Stats., violates the equal protection clauses of

the Wisconsin and United States Constitutions. The at-

tached memorandum is made in support of this motion.

Dated at Brookfield, Wisconsin, this 3rd day of

July, 1990.

SCHELLINGER & DOYLE, S.C.

Attorneys for Defendants-Appel-

lants-

Cross Respondents

By: s/s Timothy J. Strattner

Timothy J. Strattner

Linda Vogt Meagher

POST OFFICE ADDRESS:

Schellinger & Doyle, S.C.

15700 West Bluemound Road

P. O. Box 464

Brookfield, WI 53008-0464

(414) 785-0200

SUPREME COURT OF WISCONSIN

RICKY F. RINECK, Individually,

as Surviving Husband of JOY E.

RINECK, and as Guardian for

RACHEL J. RINECK, a Minor,

Plaintiff-Respondent-

Cross Appellant-Petitioner,

vs.Case No. 88-1555

LEONARD C. JOHNSON, CRNA,

LUTHER HOSPITAL, ST. PAUL

FIRE & MARINE INSURANCE

COMPANY and WISCONSIN

PATIENTS COMPENSATION FUND,

Defendants-Appellants-

Cross Respondents,

and

BLUE CROSS BLUE SHIELD

UNITED OF WISCONSIN,

Defendant.

MEMORANDUM IN SUPPORT OF

MOTION FOR RECONSIDERATION

On June 14, 1990, the Wisconsin Supreme

Court filed its opinion in the above-captioned case. In its

opinion, the supreme court held inter alia that when there

is a Claim for loss of society and companionship in a

A-22

medical malpractice/ wrongful death case, the medical

malpractice statutory cap for noneconomic damages, sec.

893.55(4), Wis. Stats. [$1,000,000.00], supersedes the

wrongful death statutory cap for loss of society and com-

panionship, sec. 895.04(4), Wis. Stats. [$50,000.00]. Rineck

v. Johnson, slip opinion at 10. the suprerne court also held

that the surviving children of a person who dies as a result

of medical malpractice may recover damages for loss of

society and companionship, even though there is a surviv-

ing spouse. Id. at 14.

The court’s interpretation of secs. 893.55(4)

and 895.04(4), Wis. Stats., violates the equal protection

clause of both the Wisconsin and United States Constitu-

tions. Under the court’s decision, a spouse or child of a

person who died as the result of a negligent tortfeasor may

only recover $50,000.00 for loss of society and companion-

ship, whereas, a spouse or child of a person who dies as the

result of negligence on the part of a “health care provider”

may recover up to $1,000,000.00 for loss of society and

companionship. See sec. 655.001(8), Wis. Stats., for the

definition of health care provider. Moreover, under the

court’s interpretation, a surviving child of a person who

dies as a result of a health care provider's negligence, in a

wrongful death action, may recover damages for loss of

society and companionship even if there is a surviving

spouse. In contrast, in nonmedical malpractice/ wrongful

death actions, the surviving children of a person who dies

as a result of a tortfeasor’s negligence may not recover such

damages if there is a surviving spouse. Hanson v. Valdivia,

51 Wis. 2d 466, 187 N.W.2d 151 (1971).

A-23

In other words, the court’s interpretation of

the law divides tort victims in wrongful death actions into

two classes: victims of health care providers and victims of

all other tortfeasors. Since there is no rational basis for the

resulting inequities, this interpretation of the law violates

the equal protection clauses of the Wisconsin and United

States Constitutions. See U.S. Const. amend. XIV; Wis.

Const. amend. Art. I, Sec. 1.

Facts

The plaintiff-respondent-cross-appellant-

petitioner, Ricky F. Rineck (plaintiff), commenced this

action against the defendant-appellant-cross-respondent,

Leonard C. Johnson, CRNA, and Luther Hospital (defen-

dants), alleging that the defendants had been negligent in

their treatment of Ricky Rineck’s wife, Joy E. Rineck. (R. 1).

Both defendants are health care providers under chapter

655, Wis. Stats. See sec. 655.001(8), Wis. Stats.

Before trial, the defendants filed a Motion

in Limine to limit damages for loss of society and compan-

ionship to $50,000.00. See sec. 895.04(4), Wis. Stats. How-

ever, the trial court ruled that the medical malpractice

statutory cap for noneconomic damages controlled and

that the plaintiff was entitled to up to $1,000,000.00 for

noneconomic damages, including loss of society and com-

panionship. (R. 21). See sec. 893.55(4), Wis. Stats. The trial

court also held that only the surviving spouse was entitled

to damages for loss of society and companionship. The

case was tried toa jury, which awarded damages for loss of

society and companionship to Randy Rineck in the amount

of $250,000.00. (R. 42). In Motions After Verdict, the

defendants attempted to reduce the award to $50,000.00,

A-24

but the trial court ordered judgment on that portion of the

verdict. (R. 45).

The defendants then appealed the case to

the court of appeals. The plaintiff filed a cross-appeal. The

Wisconsin Court of appeals held that the medical malprac-

tice statute limiting recovery of total noneconomic damages

to $1,000,000.00 does not abolish the $50,000.00 limitation

in wrongful death actions for loss of society and compan-

ionship, and that the latter limitation applies where death

results from medical malpractice. Rineck v. Johnson, 440

N.W.2d 830, 832 (Ct. App. 1989). The court of appeals also

affirmed the trial court’s decision to limit the recovery for

loss of society and companionship to the surviving spouse.

Id. at 833.

The court of appeals decision was reversed

in part and affirmed in part by the supreme court. The

supreme court held inter alia that the $50,000.00 limit on

damages for loss of society and companionship in wrong-

ful death actions, see sec. 895.04, Wis. Stats., was abolished

by sec. 893.55(4), Wis. Stats., in wrongful death / medical

malpractice actions. Therefore, ina wrongful death /medi-

cal malpractice action, the plaintiffs could recover up to

$1,000,000.00 for such damages. Rineck, slip opinion at 10.

Furthermore, the supreme court held that surviving chil-

dren, as well as the surviving spouse, were entitled to

damages for loss of society and companionship in wrong-

ful death/ medical malpractice actions. See id. at 13-14.

Argument

The fourteenth amendment to the United

States Constitution providers inter alia that: “No state shall

A-25

... deny to any person within its jurisdiction the equal

protection orthe laws.” Article I, section 1 of the Wiscon-

sin Constitution states that “[aJll people are born equally

free and independent, and have certain inherent rights;

among these are life, liberty and the pursuit of happiness;

to secure these rights, governments are instituted, deriving

their just powers from the consent of the governed.”

The protection afforded by the equal pro-

tection provision of the Wisconsin Constitution is substan-

tially equivalent to the due process and equal protection

clauses of the fourteenth amendment to the United States

Constitution. Yotvat v. Roth, 95 Wis. 2d 357, 363 n 1, 290

N.W.2d 524 (Ct. App. 1980). Thus, federal case law may be

utilized to interpret both equal protection clauses.

The equal protection clause of the four-

teenth amendment requires equal protection and security

for all under like circumstances. See In re Seraphim, 97 Wis.

2d 485, 496, 294 N.W.2d 485 (1980), cert. denied, 449 U.S. 994

(1980). The initial inquiry in an equal protection analysis is

the level of scrutiny to be applied to the statutory classifi-

cation under attack.

Traditionally, two standards have been

applied when a statute, or its application, is challenged on

equal protection grounds. The strict scrutiny test is applied

when the case involves a suspect classification, i.c., race,

McLaughlin v. Florida, 379 U.S. 184, 191-92 (1964); ancestry,

Oyama v. California, 332 U.S. 633, 644-46 (1948); and alienage,

Graham v. Richardson, 403 U.S. 365, 372 (1971); or the clas-

sification infringes ona fundamental! right, i.e., privacy, Roe

v. Wade, 410 U.S. 113, 154-64 (1973); marriage, Zablocki v.

Redhail, 434 U.S. 374, 383-87 (1978); voting, Bullock v. Carter,

A-26

618, 627 (1969); and freedom of association, NAACP v.

Alabama, 357 U.S. 449, 460-62 (1958). See Hoffmann v. United

States, 767 F.2d 1431 (9th Cir. 1985). To withstand scrutiny,

under the strict scrutiny test, a statute must be precisely

tailored to serveacompelling state interest. Plyerv. Doe,457

US. 202, 217 (1982).

If the case does not involve a suspect classi-

fication or a fundamental right, the court will apply the

rational basis standard. See State ex. rel. Jones v Gerhardstein,

141 Wis. 2d 710, 733, 416 N.W.2d 883 (1987). The rational

basis standard is used to analyze economic or social leg-

islation. Under the test, the challenged classification must

rationally relate to a legitimate state interest. See Rubin v.

City of Wauwatosa, 116 Wis. 2d 305,319,342 N.W.2d 451 (Ct.

App. 1983).

405 U.S. 134, 144 (1972); travel, Shapiro v. Thompson, 394 US.

Recently, the United States Supreme Court

has begun to develop an intermediate level of scrutiny.

Under this standard, a statutory classification is validated

if it substantially furthers a proposed legislative purpose.

See Craig v. Boren, 429 U.S. 190 (1976). The Supreme Court

has utilized this standard only on gender based classifica-

tions and classifications based on legitimacy. See Trimble v.

Gordon, 430 U.S. 762 (1977). See also Marshfield Clinic v.

Discher, 105 Wis. 2d 506, 314 N.W.2d 326 (1982).

Since this case does not involve 2 suspect

classification or a fundamental right, the strict scrutiny test

does not apply. Also, the Wisconsin appellate courts have

limited the use of the intermediate scrutiny test. Therefore,

the rational basis standard applies to this case. See State ex.

rel Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434

A-27

(1978). The rational basis test requires a “legitimate state

interest” to rationalize a denial of equal protection. The

application of equal protection standards require “some

rational relationship toa legitimate purpose.” See Sahagian

v. Dickey, 646 F. Supp. 1502, 1510-11 (W.D. Wis. 1986);

Hartland - Richmond Town Ins. Co. v. Wudtke, 145 Wis. 2d

682, 429 N.W.2d 496 (Ct. App. 1988). The challenged

classification must rationally relate to a legitimate state

interest; the basic test is not whether some inequality

results from the classification, but whether there exists any

reasonable basis to justify the classification. See Rubin, 116

Wis. 2d at 319. In order to determine whether there is a

rational relationship between the classification and a legiti-

mate state purpose, the history of the statute and intent of

the legislature must be examined to establish the legisla-

tive purpose behind sec. 893.55(4), Wis. Stats.

1. The supreme court’s holding

that sec. 893.55(4) abolished the $50,000.00

wrongful death statute limitation on loss

of society and companionship creates a

classification that violates the equal pro-

tection clause.

Prior to the enactment of the statute in 1986,

there was no limitation on noneconomic damages in medi-

cal malpractice actions. See 1985 Wis. Act 340. Wisconsin,

like numerous states in the country, enacted a statutory cap

on noneconomic damages as a legislative response to the

medical malpractice insurance crisis. See Comment, The

Constitutionality of Wisconsin's Noneconomic Damage Limita-

tion, 72 Marg. L. Rev. 235 (1989).

A-28

Between 1960 and 1970, insurance

rates for physicians increased dramati-

cally. Rates for non-surgical physicians

increased an average of 540.8%, while the

rates for surgical physicians increased an

astounding 949.2%.

Id. at 235.

In Fein v. Permanente Medical Group, 211 Cal.

Rptr. 368, 695 P.2d 665 (Cal. 1985), the California Supreme

Court explained the intent of the California legislature in

enacting a statute that limited noneconomic damages to

$250,000.00 in medical malpractice cases:

[In enacting [the statute] the Leg-

islature was acting in a situation in which

it had found that the rising costs of medical

malpractice insurance was posing serious

problems for the health care system in

California, threatening to curtail the avail-

ability of medical care in some parts of the

state and creating the very real possibility

that many doctors would practice without

insurance, leaving patients who might be

injured by such doctors with the prospect

of uncollectible judgments. In attempting

to reduce the costs of medical malpractice

insurance ..., the Legislature enacted a

variety of provisions affecting doctors, in-

surance companies and malpractice

plaintiffs.

Id. at 680. See also Hoffmann, 767 F.2d at 1434.

Clearly, by enacting sec. 893.55(4), Wis.

Stats., the Wisconsin Legislature sought to deal with the

medical malpractice crisis by limiting, and not expanding,

the liability of “health care providers.” Thus, the “legisla-

tive purpose” behind the statute was to limit the liability of

A-29

a health care provider to ameliorate the medical malprac-

tice liability crisis. Also, the statute furthered the state

interest in ensuring the availability and affordability of

medical care. As the court of appeals noted in their

decision in this case, the Wisconsin Legislature did not

intend to expand the liability of health care providers or

remove any previously imposed limits on damages recov-

erable in wrongful death actions. Rineck, 440 N.W.2d at

832.

It is undisputed that prior to the enactment

of sec. 893.55(4), Wis. Stats., the wrongful death statutory

limitation applied to medical malpractice/ wrongful death

cases. Under the supreme court's interpretation of sec.

_ 893.55(4) and sec. 895.04(4), Wis. Stats., the statutory limi-

tations set forth in the wrongful death statute for loss of

society and companionship [$50,000.00], no longer apply

to medical malpractice actions when a death is involved.

Under the court’s decision, the $1,000,000.00 limit on

noneconomic damages now applies to al elements of

noneconomic damages in medical malpractice/ wrongful

death actions. Therefore, the wrongful death statute limit

for loss of society and companionship damages has been

abolished in medical malpractice/ wrongful death cases.

In other words, the court’s application of sec. 893.55(4) in

this case expands the liability of health care providers in

medical malpractice actions. This application is in direct

conflict with the intent behind the enactment of the

noneconomic statutory cap enacted by the legislature, i.c.,

to limit the liability of health care providers.

Since the supreme court's interpretation of

sec. 893.55(4), Wis. Stats. in this case, expands the health

’ iit vm

care provider's liability in wrongful death actions, there is

no rational relationship between the classification caused

by the court’s interpretation and the legislative purpose

behind the statute, ic., to ameliorate the crisis and the

availability and cost of liability insurance by limiting the

liability of health care providers. Instead, the court's

interpretation of the statute is completely contrary to the

legislative purpose and therefore, the classification created

by this interpretation of the statute violates the equal

protection clause.

Theinterpretation suggested by thesupreme

court divides tortfeasors in wrongful death actions into

two classifications: health care provider tortfeasors and all

other tortfeasors. It also divides victims in wrongful death

cases into two categories: those injured by health care

provider tortfeasors and those injured by all other

tortfeasors. Since there is no rational relationship between

these classifications and a legitimate state purpose, the

classifications violate the equal protection clauses of the

Wisconsin and United States Constitutions.

Under common law, there is no action for

wrongful death. The cause of action for wrongful death is

purely statutory. Weiss v. Regent Properties, Ltd.,118 Wis. 2d

225, 346 N.W.2d 766 (1984). Therefore, without the wrong-

ful death statute, the plaintiff would not have been able to

bring his action against the defendants. Therefore, the

wrongful death statute clearly applies to this case. A

damage claim for loss of society and companionship is

properly construed as merely one element of damages

recoverable in a wrongful death action. Jaeger v. Raymark

Indus., Inc., 610 F. Supp. 784, 788 (E.E. Wis. 1985). The

Fea FS

legislature under 895.045(4), Wis. Stats., limited recovery

for loss of society and companionship to $50,000.00.

The Wisconsin Supreme Court has now

held that the $50,000.00 limitation in wrongful death ac-

tions does not apply to medical malpractice/ wrongful

death cases, thereby creating a classification that violates

the equal protection clause of the Wisconsin and United

States Constitution.

The Wisconsin Supreme Court's interpre-

tation of the statute will cause extreme inequities in the

future. For example, a spouse of a person who dies as a

result of using a defectively manufactured automobile

may only recover $50,000.00 for loss of society and com-

panionship. In contrast, a spouse of a person who dies as

a result of the negligence on the part of a nurse may recover

$1,000,000.00 for loss of society and companionship. The

Supreme Court’s decision has increased the exposure faced

by health care providers, not limited it. Clearly, there is no

legislative purpose for such inequities.

The supreme court's application of the two

statutes becomes even more complicated in cases involv-

ing both a health care provider/tortfeasor and a regular

tortfeasor. The following example will demonstrate the

complexities involved:

A drug manufacturer distributes a

defective drug that has been known to

cause gastrointestinal bleeding and in

some cases death. A physician prescribes

the drug to Mr. X, although the pre-

scription is not called for in Mr. X’s case.

Mr. X then dies as a result of an adverse

reaction to the prescription. Mr. X’s

spouse then brings a wrongful death ac-

tion and asserts a claim for loss of

and companionship. The jury finds that

the doctor was 1% negligent and the drug

manufacturer was 99% negligent. The jury

then awards Mr. X’s $500,000.00 for loss of

society and companionship.

Under the court's interpretation of the statute, the

physician will pay the entire $500,000.00 [or $450,500.00 if

the drug manufacturer pays 99% of the $50,000.00 statutory

limitation in sec. 895.04(4), Wis. Stats.], since the drug

manufacturer and the doctor are jointly and severally

liable. Although the physician was only responsible for 1%

of the plaintiffs injuries, under the court's interpretation,

he or she will have to pay almost the entire amount of the

loss of society and companionship award.

Thus, the court’s interpretation of sec.

893.55(4), Wis. Stats., creates a classification which violates

the equal protection clause of the United States and Wis-

consin Constitutions, since there is no rational relationship

between the classification and a legitimate state purpose.

2. The supreme court’s holding

that the surviving children, as well as the

surviving spouse, may recover damages

for loss of society and companionship in

wrongful death/ medical malpractice ac-

tions creates a classification that violates

the equal protection clause.

Generally, a surviving child may not bring

a cause of action for the wrongful death of his or her parent

if there is a surviving spouse. Hanson v. Valdivia, 51 Wis. 2d

466, 475, 187 N.W.2d 151 (1971).

Surviving children do not have a cause of action for the

death of one of their parents when the decedent

is survived by his or her spouse. . -when there is a

surviving spouse the action must be brought by or on

behalf of that spouse. e

Id. at 475.

In its decision in this case, the Wisconsin

Supreme Court conceded that in wrongful death actions

generally such a rule exists. Rineck, slip opinion at 13.

However, the court held that ifa parent dies as the result of

medical malpractice, the surviving children, as well as the

surviving spouse, may bring a cause of action for loss of

society and companionship. Id. The supreme court con-

cluded that Rachel Rineck’s claim originated in ch. 655 and

not the general wrongful death statute. Id.

Therefore, the supreme court denied the

plaintiff's attempt to expand Theama v. City of Kenosha, 117

Wis. 2d 508, 527, 344 N.W.2d 513 (1984), to apply to all

wrongful death actions. Id. at 13. In Theama, the supreme

court held that a minor child may bring an action for loss

of society and companion: ‘pif his or her parent is injured

by the negligence of another. Theama, 117 Wis. 2d at 519.

The court limited its expansion of Theama only to the

medical malpractice/ wrongful death realm, since Theama

already applied to actions that involve injury to a parent

caused by medical malpractice.

The court's limited application of Theama in

wrongful death/medical malpractice cases again creates

classifications that violate the equal protection clauses of

the Wisconsin and United States Constitution. In cases

where there is a surviving spouse, victims in wrongful

death actions are divided into twoclassifications: (1) sur-

viving children whose parent dies as the result of a negli-

gent healthcare provider; and (2) surviving children whose

parent dies as a result of negligence on the part of another

tortfeasor. Thesupreme court’sinterpretation also divides

tortfeasors into two categories: (1) negligent health care

providers and (2) all other tortfeasors.

As discussed in the previous subsection,

these classifications violate the equal protection clause

because there is no rational relationship between the clas-

sifications and a legitimate state purpose. The legislature

enacted sec. 893.55(4), Wis. Stats.,as a means of limiting the

liability of health care providers. Instead, the supreme

court’s decision, and its interpretation of sec. 893.55(4),

expand health care liability. Prior to the enactment of the

statute, and the court’s decision in this case, only the

surviving spouse was entitled to up to $50,000.00 for loss of

society and companionship. See sec. 895.04, Wis. Stats. Now,

surviving children, as well as the surviving spouse, may

recover damages for loss of society and companionship in

medical malpractice/wrongful death actions up to

$1,000,000.00. See sec. 893.55(4), Wis. Stats.

Asa result of the court's decision, the health

care provider's liability exposure increased from $50,000.00

to $1,000,000.00. See secs. 893.55(4) and 895.04, Wis. Stats.

Because there is no rational relationship between the clas-

sifications created by the supreme court's interpretation of

sec. 893.55(4) and a legitimate state purpose, the classifica-

tions violate the equal protection clauses of the Wisconsin

and United States Constitutions.

“ ae

DoT ice GRA ane be enue nt ca

3. The statutory cap on

noneconomic damages, as created by the

Wisconsin legislature, is constitutional.

The statutory cap on noneconomic dam-

ages in medical malpractice actions, see sec. 893.55(4) Wis.

Stats., itselfcreatestwoclasses: personsinjured by health

care provider tortfeasors and persons injured by all other

tortfeasors. It also divides victims into an additional

classification: persons injured in medical malpractice ac-

tions with noneconomic damages of $1,000,000.00 or less,

and persons injured in medical malpractice cases with

noneconomic damages of more than $1,000,000.00. How-

ever, these classifications do not violate the equal protec-

tion clauses of the Wisconsin and United States Constitu-

tions. There is a rational relationship between the classifi-

cations and the legitimate legislative purpose; i.e. to limit

the liability of health care providers and to attempt to solve

the medical malpractice crisis. See State ex. rel. Strykowski v.

Wilkie, 81 Wis. 2d 491, 507-08, 261 N.W.2d 434 (1978).

However, the court's interpretation of the statute in this

case has created other classifications that do violate the

equal protection clause of both the Wisconsin and United

States Constitutions.

Conclusion

For the foreg>ing reasons, the defendants-

appellants-cross-respondents respectfully request that this

court grant their Motion for Reconsideration and affirm

the court of appeal’s decision.

Dated at Brookfield, Wisconsin this 3rd day of July,

1990.

A-%

SCHELLINGER & DOYLE, S.C.

Attorneys for Defendants-A ppellants-

Cross-Respondents

By: /s/ Timothy J. Strattner

Timothy J. Strattner

Linda Vogt Meagher

POST OFFICE ADDRESS:

Schellinger & Doyle, S.C.

15700 West Bluemound Road

P. O. Box 464

Brookfield, WI 53008-0464

(414) 785-0200

A-37

OE SNE ARE SD eT ee OPN ee

en AP OS ES ee SS Pk Pee

eR eee ee ee ae ee Se! aE ee ee oe oe elt

Ricky F. RINECK, individually as surviving husband

of Joy E. Rineck, and as guardian for J. Rineck,

a minor, Plaintiffs-Respondents-Cross Appellants,

Vv.

Leonard C. JOHNSON, CRNA Luther Hospital,

St. Paul Fire & Marine Insurance Co., and Wisconsin

Patients Compensation Fund, Defendants-Appellants-

Cross Respondents,

BLUE CROSS & BLUE SHIELD UNITED OF WISCON-

SIN, Defendant.

Court of Appeals

No. 88-1555. Submitted on briefs April 6, 1989.

Decided April 25, 1989.

APPEAL and CROSS-APPEAL from a

judgment of the circuit court for Chippewa county: RI-

CHARD STAFFORD, Judge. Affirmed in part, reversed in

part, and cause remanded.

For defendants-appellants-cross respon-

dents there were briefs by Timothy J. Strattner and Gregory

W. Lyons of Schellinger & Doyle, S.C., of Brookfield.

For plaintiffs-respondents-cross appellants

there were briefs by Howard S. Marker of Howard S. Marker

& Associates, P.A., of Minneapolis, Minnesota.

Before Cane, P.J., LaRocque and Myse, JJ.

MYSE, J. Leonard Johnson appeals a

judgment awarding Ricky Rineck $250,000 damages for

loss of his deceased spouse's society and companionship.

Johnson argues that the trial court erred by refusing to limit

the award to $50,000 pursuant to sec. 895.04(4), Stats.

Rineck cross-appeals, contending that a child has a sepa-

rate cause of action for loss of society and companionship

when medical malpractice causes death of one parent,

regardless of whether the deceased parent's spouse sur-

vives. He also argues that he is entitled to compensation

for the loss of a deceased parent's child care services

beyond the surviving child’s eighteenth birthday when the

child is disabled.

We conclude that sec. 895.04(4) limits re-

covery for loss of society and companionship in a wrongful

death action to $50,000, notwithstanding sec. 893.55(4),

Stats. We also conclude that a survivirig child does not

have a claim for loss of society and companionship when

the surviving spouse asserts such a claim in a wrongful

death action and that sec. 895.04(2) limits damages for child

care to the costs of child care during the child’s minority.

Therefore, we affirm in part, reverse in part, and remand

for entry of judgment in accordance with this opinion.

The following facts lead to this dispute.

Upon being admitted to the hospital, Joy Rineck had an

emergency cesarian section. During the operation, John-

son, the anesthetist, negligently failed to supply Joy with

an adequate supply of oxygen. She lapsed into a coma and

died seven days later. Although the child, Rachel, sur-

vived, she is profoundly retarded and has cerebral palsy.

Asa result, she will need special care for the rest of her life.

Rineck filed a wrongful death action on his

behalf and a negligence actionon behalf of Rachel for her

personal injuries. The parties agreed to bifurcate the two

claims, and the present appeal concerns only the wrongful

death action. The jury awarded Rineck $408,987 in pecuni-

ary damages’ and $250,000 for loss of society and compan-

ionship.

The trial court reduced the amount of pecu-

niary damages because the amount the jury awarded for

services Joy would have provided caring for Rachel after

Rachel reached age eighteen was not recoverable. The

court also refused to allow Rachel to assert a claim for loss

of society and companionship as part of the wrongful

death action because Ricky, the surviving spouse, asserted

such a claim.

Johnson argues that pursuant to sec.

895.04(4), Rineck cannot recover more than $50,000 for loss

of society and companionship. The issue is whether the

limitation on the loss of society and companionship estab-

lished by sec. 895.04(4) was removed in medical malprac-

tice actions when the legislature adopted sec. 893.55(4).

Because this involves the interpretation of statutes, it is a

*This sum was broken down as follows:

a. Funeral and burial expense— $5,987.00

(answered by the Court)

b. Fost ond San en a oeningn wee eae Bienes ask

ve contributed to expenses of main

c. Past and future loss of household services- (not incl

child care) $98

d. Pastand Future loss of child care services by Joy E. Rineck to

Rachel J. Rineck up to age 18- $75,000.00

e. Future loss of child care services E Rineck to Rachel J.

Rineck after Rachel}. Rineck reaches her 18th

question of law that we review independently of the trial

court’s determination. Brown v. Thomas, 127 Wis. 2d 318,

323, 379 N.W.2d 868, 870 (Ct. App. 1985).

Section 895.04(4) provides:

Judgment for damages for pe-

cuniary injury from wrongful death may

beawarded toany person entitled to bring

a wrongful death action. Additional dam-

ages not to exceed $50,000 for loss of society

and companionship may be awarded to

the spouse, children or parents of the de-

ceased.

Section 893.55(4)(b) provides:

The total noneconomic damages recover-

able under ch. 655 for bodily injury or death, including any

action or proceeding based on contribution or indemnifi-

cation, 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.

The limitation contained in para. (d) refer-

enced above pi ovides:

The limit on total noneconomic

damages for each occurrence under par.

(b) shall be $2,000,000 for actions filed on

or after June 14, 1986. . ..

Paragraph (a) defines noneconomic dam-

ages as follows:

In this subsection,

“noneconomic damages” means moneys

intended to compensate for pain and suf-

fering, humiliation; embarrassment;

worry; mental distress; noneconomic ef-

fects of disability including loss of enjoy-

ment of the normal activities, benefits and

pleasures of life and loss of mental or

physical health, well-being or bodily

functions; loss of consortium, society and

companionship; or loss of love and affec-

tion.

In reading these statutes together, the trial court

concluded that the language limiting the recovery of total

noneconomic damages to $1,000,000 necessarily removed

the $50,000 limitation for loss of society and companionship

where death results from medical maipractice.

The language in sec. 893.55(4)(d) provides

that the total noneconomic losses may not exceed $1,000,000

in the aggregate. This limitation is consistent with a

specific limitation on one of the seven types of noneconomic

loss identified by the statute. It would seem that the

statute’s clear and unambiguous language does not abol-

ish the limitation on the amount that may be recovered for

loss of society and companionship established by sec.

895.04(4). 4:

The trial court, however, held that the two

statutes created an ambiguity. Even if we assume an

ambiguity exists and resort to examination of the legisla-

tive history, our conclusion remains unchanged.

When statutes are ambiguous, we must

determine the legislative intent from the language in the

statute in relation to its scope, history, context, subject

matter, and object intended to beaccomplished. A. v. Racine

County, 119 Wis. 24 349,352,349 N.W.2d 743,744 (Ct. App.

1984). We examine the legislative history to determine

what effect, if any, the adoption of sec. 893.55(4) had on the

previously adopted statute limiting recovery for loss of

society and companionship to $50,000. The legislative

history is silent as to whether the legislature intended sec.

893.55(4) to preempt sec. 895.04(4) in certain cases. Further-

more, sec. 893.55(4) was intended to limit, not expand,

recovery of noneconomic damages in medical malpractice

cases. We conclude that in adopting sec. 893.55(4), the

legislature did not intend to remove any previously im-

posed limits on damages recoverable in a wrongful death

action. We therefore hold that the provisions of sec.

893.55(4) limiting the total noneconomic damages to

$1,000,000 have no effect on the sec. 895.04(4) limitation on

the amount recoverable for loss of society and companion-

ship. The trial court is directed to reduce the judgment to

reflect the $50,000 limitation on recovery for loss of society

and companionship.

On his cross-appeal, Rineck argues that the

court erred by refusing to award $30,000 to compensate for

the loss of Joy’s child care services after Rachel reaches age

eighteen. Rineck argues that Rachel, who has suffered

severe and permanent injuries, will require support and

maintenance well beyond her minority and that Rineck

should be able to recover the value of these services in this

action because Joy would have provided them.

We note initially that this is a wrongful

death action brought by the surviving spouse for the death

of his wife. We are not reviewing damages awarded to

Rachel in her own right for injuries she received as a result

of Johnson’s negligence. The right to recover damages for

wrongful death is limited strictly to the parties designated

by the legislature. Weiss v. Regent Properties, Ltd., 118 Wis.

2d 225, 230-31, 346 N.W.2d 766, 768 (1984).

The wrongful death statute, sec. 895.94(2),

provides that

[iJf the deceased leaves surviving

a spouse, and minor children under 18

years of age with whose support the de-

ceased was legally charged, the court. . .in

recognition of the duty and responsibil-

ity. ..to support minor children, shall de-

termine the amount, if any, to be set aside

for the protection of such children... .

See also Steinbarth v. Johannes, 144 Wis. 2d 159, 164,

423 N.W.2d 540, 541 (1988). This statute limits recovery in

a wrongful death action to the child’s minority.

Thesupreme court's decisions in Shockley v.

Prier, 66 Wis. 2d 394, 255 N.W.2d 495 (1975), and Theama v.

City of Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984)

support this result. A child’s cause of action for loss of a

parent’s society and companionship in negligence actions

is limited to the child’s minority. Theama, 117 Wis. 2d at

527, 344 N.W.2d at 522. Although this result may seem

unduly harsh, we note that the decision as to who may

recover and the limits on the amount recoverable pursuant

to the wrongful death statute are matters uniquely within

the province of the legislature because they involve con-

cerns of public policy. See Steinbarth, 144 Wis. 2d at 163-64,

423 N.W.2d at 541. If the limitation on recovery for the

support of a child is to be expanded in a wrongful death

action to include the services the decedent would have

provided after the child reaches majority, it is a matter for

the legislature to address. Furthermore, Rachel is not

precluded from recovering damages for the special care

she will need beyond age eighteen in an action based on

Johnson's negligence in causing her injuries. We conclude

that the trial court correctly limited Rineck’s recovery and

excluded the recovery of sums for Rachel’s support and

maintenance after she reaches age eighteen.

Finally, Rineck argues that Rachel has her

own claim for loss of her mother’s society and companion-

ship notwithstanding her father’s claim as Joy’s surviving

spouse. This issueiscontrolled by Hanson v. Valdivia,51 Wis.

2d 466, 187 N.W.2d 151 (1971). In applying sec. 895.04(2),

the court stated:

[SJurviving children do not havea

cause of action for the wrongful death of

one of their parents when the decedent is

survived by his or her spouse, .... When

thereisasurviving spouse the action must

be brought by or on behalf of that spouse,

and the only special protection afforded

the children is that the court may, in its

discretion, impose a lien in favor of the

children on the amount recovered, not in

excess of 50 percent of the recuvery.

Id. at 475, 187 N.W.2d at 156. Accordingly, we

conclude that the trial court correctly denied Rineck’s

motion to seek damages on Rachel's behalf for the loss of

society and companionship.

By the Court. — Judgment affirmed in part,

reversed in part, and cause remanded.

STATE OF WISCONSINCIRCUIT COURTCHIPPEWA

COUNTY

RICKY F. RINECK, individually,

as surviving husband of

JOY E. RINECK, and as Guardian

for RACHEL J. RINECK, a minor,

JUDGMENT

vs. Court File: 86 CV 378

LEONARD C. JOHNSON, CRNA;

LUTHER HOSPITAL; ST. PAUL FIRE

& MARINE INSURANCE CO.; BLUE

CROSS & BLUE SHIELD UNITED OF

WISCONSIN; and WISCONSIN

PATIENTS COMPENSATION FUND,

Defendants.

After bifurcation, that portion of the above-

‘ entitled action relating to claims arising out of the death of

: ! Joy E. Rineck came on for trial on May 9, 1988; Howard S.

Marker, Esq. and David Oskie, Esq., appearing for Plaintiff

Ricky F. Rineck, individually as surviving husband of Joy

E. Rineck; Misfeldt & Stark, S.C., by Thomas J. Misfeldt,

Esq., appearing on behalf of Defendants Leonard C. John-

son, CRNA, Luther Hospital, St. Paul Fire & Marine In-

surance Company and Wisconsin Patients Compensation

Fund.

The case was tried before the Court and a

jury and the jury verdict, which was rendered on May 13,

1988, is on file herein. The jury awarded Ricky F. Rineck

$658,987.00 as damages resu‘ting from the death of his

wife, Joy E. Rineck, of which $408,987.00 was allocated for

pecuniary loss and $250,000.00 was allocated for loss of

society and companionship. On motion of defendants, on

June 9, 1988 the Court reduced the award by the sum of

$30,000.00, which amount represents the jury’s award for

plaintiffs loss of child care services Joy E. Rineck would

have provided for Rachel J. Rineck after Rachel J. Rineck

reaches the age of 18 years; and that same day, on motion

of plaintiff, the Court ordered judgment on the jury verdict

so reduced in favor of Ricky F. Rineck and against defen-

dants in the amount of $628,987.00, together with costs and

disbursements.

Defendant Leonard C. Johnson's last known

address is Eau Claire, Wisconsin and he is a certified

registered nurse anesthetist by profession; Defendant

Luther Hospital's last known address is 1221 Whipple, Eau

Claire, Wisconsin and it is in the business of providing

medical and hospital care; Defendant Wisconsin Patients

Compensation Fund is a Wisconsin corporation and De-

fendant St. Paul Fire & Marine Insurance Company is a

Minnesota Corporation, both in the business of providing

insurance for Wisconsin health care providers.

NOW THEREFORE, on motion of Howard

S. Marker, Esq., attorney for plaintiff;

IT IS ADJUDGED, that the jury award is

reduced by the sum of $30,000.00 and that Plaintiff, Rycky

F. Rineck, shall recover from the Defendants, Leonard C.

Johnson, CRNA, Luther Hospital, St. Paul Fire & Marine

Insurance Company and Wisconsin Patients Compensa-

tion Fund, thesum of Six Hundred Twenty-Eight Thousand,

Nine Hundred Eighty-Seven and No/100 ($628,987.00)

Dollars, of which $378,987.00 is pecuniary loss and

$250,000.00 is loss of society and companionship, together

with interest from the date of verdict, his costs and dis-

bursements herein. Out of such amount Plaintiff, Ricky F.

Rineck, shall withhold the sum of $75,000.00 and, after

deducting attorney's fees and costs from that sum on a pro

rata basis, shall deposit the remainder thereof in a separate

account, to be held in trust by him pending the disposition

of the suit which remains on behalf of Rachel J. Rineck, or

until further order of this Court.

Dated this 8th day of July, 1988.

BY THE COURT

STATE OF WISCONSINCIRCUIT COURTCHIPPEWA

COUNTY

BRANCH II

RICKY F. RINECK, et al,

Plaintiffs,

vs. MEMORANDUM OPIN-

ION

LEONARD C. JOHNSON, CRNA:

LUTHER HOSPITAL: ST. PAUL FIRE

& MARINE INSURANCE CO.: BLUE

CROSS & BLUE SHIELD UNITED OF

WISCONSIN: and WISCONSIN

PATIENTS COMPENSATION FUND,

Defendants.

The sole issue presented by defendant's

motion is whether or not the $50,000.00 limitation for loss

of society and companionship contained in Wisconsin’s

wrongful death statute applies toa claim madeina medical

malpractice action under Chapter 655.

Sec. 895.04(4) of Wisconsin's wrongful death

statute reads:

“Judgment for damages for pecu-

niary injury from wrongful death may be

awarded to any person entitled to bring a

wrongful death action. Additional dam-

ages not to exceed $50,000.00 for loss of

society and companionship may be

awarded to the spouse, children, or par-

ents of the deceased.”

Sec. 655.017 states:

“The amount of noneconomic

damages recoverable by a claim-

ant or plaintiff under this chapter

for acts or omissions of a health

care provider. . .is subject to the

limit under s. 893.55(4).”

Sec. 893.55(4)(a) defines

noneconomic damages to mean:

Sec. 893.55(4)(b) provides:

“The total noneconomic damages

recoverable under ch. 655 for

bodily injury ordeath. . .may

not exceed the limit under

par. (d)foreachoccurrence from

all health care

providers. . -who are found

negligent. . .”

Sec. 893.55(4)(d) reads:

“The limit on total noneconomic

damages for each occurrence under par.

(b) shall be $1,000,000.00 for actions filed

on or after June 14, 1986, .. .”

Defendants contend that the applicable

noneconomic limitation on a death claim is governed by

the wrongful death statute rather than by Sec. 893.55.

Defendants argue that the general purpose of ch. 655 was

to limit rather than enhance medical malpractice liability

exposure. As evidence thereof, defendants make reference

to the legislative findings set forth in ch. 37 of the laws of

1975, which findings clearly demonstrate concerns over

the adverse effects of malpractice claims and suits on the

costs and availability of health care in Wisconsin. With

these concerns in mind the Court is asked to assume that

the legislature never intended to cap a noneconomic death

claim arising from medical malpractice at $1,000,000.00

while limiting noneconomic death claims caused by other

torts to $50,000.00. Though it may be difficult to under-

stand why the relatives of a person killed by a drunk driver

or as the result of the negligent use of a firearm should be

limited to a claim of $50,000.00 for loss of society and

companionship whilea death resulting from thenegligence

of a health care provider would entitle such relatives to a

claim for loss of society and companionship of up to

$1,000,000.00, that is not to say that the legislature did not

intend to extend the cap to $1,000,000.00 in medical mal-

practice actions. It may have done so because of tl

insurance provisions contained in ch. 655, because of trade

offs among competing interests as suggested by plaintiff's

counsel or for any number of other reasons. Though the

reasons for the legislative $1,000,000.00 cap on medical

malpracticeclaims may not have been specified, toconclude

that the phrase “or death” was a legislative oversight or

mistake is only speculation.

While it is true that a Court, in construing

the statute must give effect to the intent of the legisiature,

it is not at liberty to disregard the plain and clear words of

the statute. Rules of statutory interpretation applicable

when ambiguity is present need not be called into play

when the language of the statute speaks for itself.

Sec. 655.017 isclear in stating that theamount

of noneconomic damages recoverable by a claimant under

ch. 655 is subject to the limit specified under Sec. 893.55(4).

Sec. 893.55(4) is equally clear in stating that the total

noneconomic damages 1ecoverable under ch. 635 for bodily

injury or death may not exceed $1,000,000.00. The Wiscon-

sin wrongful death statute has been in existence for many

years prior to the enactment of Sec. 655.017 and had the

legislature sought to cap the damages in a death claim

under that statute it could have done so. It not only elected

not to do so, but enacted legislation in direct conflict with

the manner of treating an award involving contributory

negliger.ce under the wrongful death statute. The wrong-

ful death statute requires the Court to reduce any award to

the $50,000.00 maximum and then where applicable reduce

that maximum figure under Sec. 895.045 statutes in pro-

portion to the amount of negligence attributable to the

person recovering. On the other hand such award in a

medical malpractice action is not, under Sec. 893.55(c),

reduced to the statutory maximum prior to the application

of Sec. 895.045 statutes. It is then reduced to the maximum

only if the award as reduced under Sec. 995.045 still ex-

ceeds the $1,000,000.00 limitation. Such legislation suggests

that the legislature was not satisfied to cap a noneconomic

Se eee

ful death statute.

‘ Though the Court may not agree with the

capping difference of a medical malpractice claim, it may

not rewrite the law. That is the function of the legislature.

Though no challenge has been made under

the equal protection clause of the constitution, it appears

that such difference was not an abuse of legislative discre-

Therefore, it is the conclusion of this Court

that the applicable limitation on the death claim is as

specified under Sec. 893.55 statutes.

Dated this 9th day of March, 1988.

BY THE COURT:

/s{ Richard H. Stafford

Richard H. Stafford

Circuit Judge

A-53

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