# Petition for Writ of Certiorari — Johnson v. Rineck > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3207%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1068 ## Text 0:8 88 NO. er F. see 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 Ga 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 Wi hes ee es 17 ix 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. 1 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. (c) Acourtin an action tried withouta jury 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- a 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). ee ey 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- 10 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 11 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 12 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 13 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 14 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 15 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 16 (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. 17 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- 18 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- 19 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. 2 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 21 (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. 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 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 26 7 }, ET 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 27 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, v. 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, V. 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. eS # “ ae : t 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3207%3A1. Public record. Not legal advice.