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Wrongful death cap challenge

The state’s highest court is considering the constitutionality of wrongful death caps. It also is expected to clarify whether plaintiffs in a medical malpractice case can collect non-economic damages for both medical malpractice and wrongful death.

The state Supreme Court heard oral arguments in the matter earlier this month while visiting the Racine County Courthouse. The case Yvette M. Maurin, et al. v. Gordon Hall, M.D., et al., stems from the death of 5-year-old Shay Maurin due to complications related to diabetes.

A jury found that Gordon Hall, M.D., was negligent because he failed to diagnose Shay’s diabetes. The jury awarded the girl’s estate $550,000 as noneconomic damages for pain and suffering. It also awarded Joseph and Yvette Maurin, the girl’s parents, $2.5 million as wrongful death damages for their loss of society and companionship.

Washington County Circuit Court Judge Lawrence F. Waddick reduced the award for pain and suffering to $100,000 in light of medical malpractice caps. However, Waddick determined the wrongful death caps were unconstitutional and awarded $2.2 million to the parents.

Hall appealed, arguing that the cap was constitutional. He also maintained that the parents should not have received damages for both medical malpractice and wrongful death.

The Maurins contend that the trial court was correct when it found the wrongful death cap to be unconstitutional. They also assert that plaintiffs should be allowed to add the two types of damages together.

The couple sought to cross-appeal the court’s remittitur of the noneconomic damages for pain and suffering. In its certification of the case to the Supreme Court, the District II Court of Appeals indicated in a footnote that “the cross-appeal is independent from the issues presented in the appeal and because it does not complement those issues, it is not included in this certification.”

Common Law

During oral arguments, the Maurins were represented by J. Michael End and Jerome A. Hierseman, both of Gray & End in Milwaukee. Hierseman challenged the conventional wisdom that a cause of action for wrongful death did not exist in common law.

“When confronted with the propriety of some aspect of a wrongful death statute, most courts have simply accepted the premise that there was no common law right to a recovery in wrongful death that would compete with the existing framework of that state’s legislation,” Hierseman told the court. “We submit that isn’t the case.”

He noted that some courts are beginning to recognize that a claim for wrongful death existed in common law. As a result, such claims should be entitled to traditional constitutional protection and interpretation. He pointed to decisions in Massachusetts, Illinois, Alaska and New Jersey that supported the notion of a common law cause of action.

Justice Patience D. Roggensack responded to Hierseman’s assertion by asking, “Won’t we have to overrule a lot of our cases in order to agree with you?”

Hierseman acknowledged that it would mean abandoning 150 years of precedent.

“We’re not asking this court to casually abandon the premise that this was an action that was statutorily created. We recognize, however, that stare decisis, as this court has stated, is not an inexorable command.”

He observed that as recently as last year, the Supreme Court overturned itself in Johnson Controls v. Employers Insurance of Wausau. In that case, the court reversed a decision it had issued nine years earlier. The 2003 court held insurers responsible for cleanup costs at Superfund sites.

A Case for Caps

During oral arguments in the Maurin case, Roberta F. Howell, of Foley & Lardner in Madison, represented Hall and Physicians Insurance Co. Howell challenged the notion that the Supreme Court had been wrong for more than a century in its consideration of wrongful death and common law. More likely, she said, the Maurins’ historical analysis was flawed.

“There is no reason for this court to depart from its hundred years of case law, most recently noted in the Neiman v. American National Property and Casualty decision that wrongful death actions are a creature of the Legislature and both the damages recoverable and the amount recoverable are limited to what is set forth in the statutes,” Howell said.

She went on to state that there was no reason to revisit the court’s long-standing recognition of the Legislature’s prerogative to limit, suspend or eliminate a cause of action, or Supreme Court decisions affirming the Legislature’s ability.

During oral arguments, Mark E. Larson, Gutlass Erickson Bonville Seibel & Falkner in Milwaukee, represented Patients Compensation Fund. Larson maintained that the Legislature established Wisconsin Statutes sections 893.55(4)(b), (d) and (f) to limit recoveries in medical malpractice cases that result in death.

“This issue was not addressed by the trial court, but it is an important issue for this court to decide,” Larson told the justices.

He referred to several recent cases where a decision on this matter would have affected the outcome. He also noted that disputes over whether the two caps could be added together have created a barrier in negotiations.

End maintained that when the Legislature responded to the Supreme Court’s decisions in Rineck v. Johnson, 155 Wis.2d 659, 671, 456 N.W.2d 336 (1990), and Jelinek v. St. Paul Fire & Cas. Ins. Co., 182 Wis.2d 1, 512 N.W.2d 764 (1994), by modifying Wisconsin Statutes Sec. 893.55(4), that body allowed for the combining of the limits under both caps. In Rineck, the state’s high court determined the $50,000 limitation on damages for loss of society contained in the wrongful death statute did not apply for medical malpractice involving death.

End pointed to the initial statement in Sec. 893.55(4)(f) “Notwithstanding the limits on noneconomic damages under this subsection…” When the Legislature referred to “limits” rather than a single “limit,” End argued, it meant for the combining of more than one limit.

“In a case such as this, you look at the loss of society and companionship and you set that and bring it back to the cap if you have to. Then you look at the pain and suffering and you bring that back to the cap if you have to, but there’s nothing at all in the language that would suggest you are capped with a single universal cap.”

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Larson disagreed with End’s interpretation stating, “If the plaintiffs’ argument is correct that [893.55(4)(f)] was necessary for the legislature to create this separate cap that was in addition to this noneconomic cap set forth in (d), it’s inconsistent with the Rineck decision. It’s not following what the Rineck decision told the Legislature about how to correct the situation if that’s what the Legislature intended.”

At the end of oral arguments, Larson came back to the question of a common law cause of action for wrongful death. Even if one existed, he said, Article 14 Sec. 13 of the Wisconsin Constitution gives the Legislature the power to alter or eliminate a common law right.

“Even if the court has been wrong for 150 years — which I don’t think it was — and there was a common law right, the fact is that the Legislature has the right and the power under the constitution to change that,” Larson said. “They have the right to codify a common law right and then limit what can be recovered under that common law right.”

Tony Anderson can be reached by email.

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