Bartholomew v. Wisconsin Patients Compensation Fund & Compcare Health Services Insurance

2006 WI 91, 717 N.W.2d 216, 293 Wis. 2d 38, 2006 Wisc. LEXIS 386

• Court: Wisconsin Supreme Court
• Decided: July 7, 2006
• Docket: No. 2004AP2592
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a decision of the court of appeals summarily affirming the judgment and order of the circuit court for Kenosha County, Wilbur W Warren III, Judge.¹ This lawsuit arose because Helen Bartholomew died as a result of medical malpractice, leaving her husband, Robert Bartholomew, surviving. The plaintiff is Robert Bartholomew individually and as special administrator of the Estate of Helen Bartholomew. The defendants are the Wisconsin Patients Compensation Fund,² Com-pcare Health Services Insurance Corporation, Doctor Prakash Shah, and the Medical Protective Company.³

¶ 2. The issue in the present case is whether the following awards collectively are limited to the maximum allowed under the cap on wrongful death actions: the jury award for noneconomic damages to the estate of Helen Bartholomew for her predeath pain, suffering, and disability; the jury award to Robert Bartholomew for noneconomic damages for the predeath loss caused by his wife's disability; and the jury award to Robert Bartholomew for noneconomic damages for his post-death loss of his wife's society and companionship.

¶ 3. The issue, in other words, is whether the court should adhere to Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, which held that when a victim of medical malpractice dies, the cap for wrongful death actions limits all noneconomic damages.⁴ A majority of the court, namely the author of this opinion and Justices Bradley, Crooks, and Butler, concludes that Maurin was wrongly decided and must be overturned. Justice Butler so decides on different grounds from those stated in this opinion.

¶ 4. In addition, a majority of the court, the same four justices, agrees that the estate of Helen Bartholomew is entitled to the full $500,000 award for Helen Bartholomew's predeath pain and suffering, that Robert Bartholomew individually is entitled to the full $350,000 award for his noneconomic damages for his predeath loss of his wife's society and companionship, and that Robert Bartholomew individually is entitled to the full $350,000 award for his postdeath loss of his wife's society and companionship (wrongful death loss of society and companionship). Justice Butler reaches this result on different grounds.

¶ 5. Three justices, namely the author of this opinion and Justices Bradley and Crooks, join this lead opinion.

¶ 6. The challenge to Maurin in the present case is not to that part of Maurin holding that, when medical malpractice results in death, the wrongful death cap⁵ applies to a claimant's noneconomic damages for post-death loss of society and companionship. Nor is any challenge made in the instant case to the constitutionality of applying the wrongful death cap to a claimant's noneconomic damages for postdeath loss of society and companionship in a medical malpractice case.⁶ The present case therefore leaves undisturbed that part of Maurin that holds the wrongful death cap applicable to a claimant's noneconomic damages for postdeath loss of society and companionship in a medical malpractice action.

¶ 7. To better understand the issue presented, this opinion sets forth the jury award for the noneco-nomic damages and the circuit court's application of a cap.

¶ 8. The jury awarded a total of $1,200,000 for noneconomic damages as follows:

• $500,000 to the estate of Helen Bartholomew for her noneconomic damages for predeath pain and suffering;

• $350,000 to Robert Bartholomew individually for his noneconomic damages for his predeath loss of his wife's society and companionship; and

• $350,000 to Robert Bartholomew individually for his noneconomic damages for his postdeath loss of his wife's society and companionship.

¶ 9. On July 1, 2004, the circuit court issued a written decision, holding that the noneconomic damages were limited to the cap provided by. the medical malpractice cap statute,⁷ that is, Wis. Stat. § 893.55(4) (d). At that time § 893.55(4) (d) capped medical malpractice damages at $422,632. The circuit court thus reduced the $1,200,000 total damage award for noneconomic damages to $422,632, as the defendants requested.

¶ 10. On July 2, 2004, Maurin was mandated. In Maurin, the court held that when a victim of medical malpractice dies, all noneconomic damages are capped by the wrongful death cap.

¶ 11. After this court issued its decision in Mau-rin, and upon motion of the defendants, the circuit court revised its judgment to comply with Maurin and reduced the three jury awards for noneconomic damages collectively to $350,000, the wrongful death cap. As a result of the revised judgment, Robert Bartholomew argues that in effect he received his entire award for noneconomic damages for his claim for his post-death loss of his wife's society and companionship ($350,000), but he received nothing for his predeath claim for his loss of his wife's society and companionship and the estate received nothing for five years of Helen Bartholomew's predeath pain and suffering.

¶ 12. Relying on Maurin, the court of appeals summarily affirmed the revised judgment.

¶ 13. Robert Bartholomew challenges Maurin as erroneously holding that the wrongful death cap on noneconomic damages applies not only to noneconomic damages for claims for postdeath loss of society and companionship, but also to noneconomic damages for his claim as special administrator of Helen Bartholomew's estate for Helen Bartholomew's predeath pain and suffering and to Robert Bartholomew's individual claim for noneconomic damages for the predeath loss of society and companionship.

¶ 14. Again, Robert Bartholomew does not challenge Maurin's application of the wrongful death cap to his noneconomic damages for his postdeath loss of his wife's society and companionship. Rather, he asserts that his awards of noneconomic damages for predeath claims are governed by the medical malpractice cap established in § 893.55(4)(d), namely $422,632.⁸ Because the medical malpractice cap in § 893.55(4) (d) was declared unconstitutional in Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, Robert Bartholomew argues that for the purposes of the instant action no cap exists on his award of noneconomic damages for predeath claims.⁹

¶ 15. The defendants contend that Maurin was correctly decided and is settled law and that the court should adhere to the Maurin decision and affirm the decision of the court of appeals in the present case.

¶ 16. Four justices, namely the author of this opinion and Justices Bradley, Crooks, and Butler, agree with Robert Bartholomew that Maurin must be overturned. Three justices, namely the author of this opinion and Justices Bradley and Crooks, agree with the position advocated by Robert Bartholomew, which is the position taken by the concurring opinion in Mau-rm.¹⁰ These three justices, in this opinion, conclude that Mauriris interpretation of Wisconsin's medical malpractice and wrongful death statutes as imposing a single global wrongful death cap on all noneconomic damages is flawed because it fails to take into account the well-established distinction in Wisconsin tort law between actions for noneconomic damages for predeath claims and a "wrongful death" claim, that is, a claim for noneconomic damages for postdeath loss of society and companionship. This opinion concludes that the legislature adopted two caps that apply in the event of death resulting from medical malpractice: a medical malpractice cap for noneconomic damages for predeath claims and a wrongful death cap for noneconomic damages for postdeath claims. Claimants may thus recover for these two types of claims up to the limits of each applicable cap. Justice Butler, writing separately, concludes that there is a "global" cap in medical malpractice cases, but, unlike the Maurin majority, concludes that the "global" cap is the medical malpractice cap, not the wrongful death cap.¹¹

¶ 17. The conclusions in this opinion are compelled by the principles of tort law, the text of the medical malpractice and wrongful death statutes and the statutory and legislative histories, and the policy the legislature enunciated in enacting Wis. Stat. § 893.55(4)(f), namely to place medical malpractice wrongful death claims "on the same footing" as wrongful death claims in other tort actions.¹²

¶ 18. Accordingly, four justices, namely the author of this opinion and Justices Bradley, Crooks, and Butler, reverse the decision of the court of appeals and overturn any contrary holding in Maurin. We remand the matter to the circuit court to reinstate each jury award for noneconomic damages, though Justice Butler reaches this result on different grounds. The analysis in this opinion is presented as follows:

¶ 19. I. The facts.

¶ 20. II. The standard of review.

¶ 21. III. The decision to overturn Maurin in light of considerations of stare decisis.

¶ 22. IV A review of tort law treating noneco-nomic damages for predeath claims differently from noneconomic damages for postdeath claims.

¶ 23. V An examination of the text of the applicable medical malpractice and wrongful death statutes and their statutory and legislative histories to establish that the legislature did not create a single wrongful death cap for both pre- and postdeath claims when the medical malpractice results in death. Rather, the legislature adopted two caps: a medical malpractice cap for noneconomic damages for predeath claims and a wrongful death cap for noneconomic damages for postdeath claims. Claimants can thus recover each type of damages under the applicable cap.

¶ 24. VI. An examination of an alternative interpretation of the cap statutes allowing claimants to choose between bringing an action for noneconomic damages for predeath claims or bringing an action for noneconomic damages for postdeath claims.

I

¶ 25. The following facts are undisputed. This case arises out of a claim for medical malpractice in the treatment of Helen Bartholomew. The specifics of Helen Bartholomew's medical treatment and resultant injuries are not relevant to the issue before the court, and this opinion will therefore only briefly discuss the medical aspects of her case.

¶ 26. In December 1998, the defendant doctor treated Helen Bartholomew for chest pain, arm and shoulder pain, shortness of breath, sweating, and fainting feelings. She returned to work a few days later and, that evening, suffered a heart attack. The heart attack resulted in substantial physical deficiencies and brain damage such that Helen Bartholomew was never able to return home. Largely bedridden and with a substantially decreased quality of life, she lived the rest of her life in a nursing home until she passed away in October 2003, nearly five years after the heart attack.

¶ 27. A complaint was filed in 2001 (prior to Helen Bartholomew's death) claiming that her injuries resulted from medical malpractice. Following Helen Bartholomew's death, Robert Bartholomew, as special administrator of his wife's estate, was substituted as a plaintiff for Helen Bartholomew.

¶ 28. On April 4, 2004, the jury returned a verdict, finding that negligence by one of the defendant doctors was the cause of Helen Bartholomew's injuries and death and awarding noneconomic damages as described above. The circuit court ultimately ordered the awards to comport with the Maurin decision.

¶ 29. Robert Bartholomew filed a notice of appeal with the court of appeals on September 28, 2004. On July 14, 2005, this court issued the Ferdon decision. In response to Ferdon, Robert Bartholomew moved the court of appeals to allow supplemental briefing or, in the alternative, to certify the cause in the present case to this court. On August 24, 2005, the court of appeals issued an order summarily denying the motion for supplemental briefing or certification and affirming the judgment of the circuit court, stating that it did not have the authority to overrule Maurin. Robert Bartholomew filed a petition for review, which was granted.

II

¶ 30. The issue in the present case involves the interpretation and application of medical malpractice statutes and the wrongful death statute. The interpretation of and application of a statute to undisputed facts ordinarily present questions of law that this court decides independently of the circuit court and court of appeals but benefiting from their analyses.

III

¶ 31. This opinion first explores the advisability of overturning Maurin. Stare decisis, let the decision stand, is a basic tenet of law. "This court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law."¹³ Stare decisis contributes to the integrity of the judicial process. Nonetheless, "stare decisis is not a mechanical formula for adherence to the latest decision," and a court should, in applying the doctrine of stare decisis, overturn its own decisions when the situation calls for such a measure.

¶ 32. Any departure from the doctrine of stare decisis, however, demands special justification.¹⁴ "No change in the law is justified by a change in the membership of the court or a case with more egregious facts."¹⁵

¶ 33. Five factors typically contribute to a decision to overturn prior case law. This court is more likely to overturn a prior decision when one or more of the following circumstances is present: (1) Changes or developments in the law have undermined the rationale behind a decision; (2) there is a need to make a decision correspond to newly ascertained facts; (3) there is a showing that the precedent has become detrimental to coherence and consistency in the law; (4) the prior decision is "unsound in principle;" or (5) the prior decision is "unworkable in practice."¹⁶

¶ 34. Furthermore, "the decision to overrule a prior case may turn on whether the prior case was correctly decided and whether it has produced a settled body of law."¹⁷ A court must keep in mind that it does "more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision."¹⁸

¶ 35. This opinion concludes that these factors are sufficiently implicated in the present case to justify our overturning Maurin.19

¶ 36. First, Maurin is unsound in principle and was wrongly decided. The Maurin opinion was, as this opinion shall explain further, founded upon an ill-fitted analysis of what a wrongful death action is and a failure to fully understand and explain the distinction between noneconomic damages for postdeath loss of society and companionship and noneconomic damages for predeath claims. A decision based on a faulty interpretation of over 150 years of case law is "unsound in principle." The bottom line is that there was no basis in Maurin for rolling both the postdeath and predeath claims into the wrongful death cap.

¶ 37. Second, Maurin has not produced a settled body of law. Only three members of this court would decide the instant case in accordance with Maurin. The other members of the court have concluded that it is not appropriate to impose a single wrongful death cap globally to limit all noneconomic damages in all medical malpractice cases resulting in death.

¶ 38. The Maurin holding is perhaps best explained as resulting from a concern with the equities of the substantial medical malpractice award for Shay Leigh Maurin's predeath pain and suffering when the child survived for less than 48 hours and was unconscious some of that time.²⁰ In the instant case, the equities are obviously different; the medical malpractice victim survived for almost five years.

¶ 39. Instead of overturning Maurin, Maurin might be limited to its facts. Limiting Maurin to its facts rather than overruling it is not a good idea.

¶ 40. No workable rule for applying caps based on the length of time the medical malpractice victim survives appears evident. Should the court adopt an arbitrary bright-line survival rule? Or should the court determine, on a case-by-case basis, whether the victim has survived a sufficiently long time to avoid the Maurin decision?

¶ 41. This opinion agrees with Robert Bartholomew and the defendants that nothing in the statutes or case law distinguishes between tort victims (including medical malpractice tort victims) who survive a very short period of time and those who survive for a longer period for purposes of applying the caps. This opinion further agrees with the parties that whatever caps apply to those who survive only a short time (such as Shay Leigh Maurin) should be the same caps that apply to those who survive for several years (such as Helen Bartholomew). Unable to identify in the statutory text, case law, or public policy any distinction regarding length of survival as governing the applicable cap, this opinion declines to limit Maurin to its facts. Predictability and certainty are best achieved by applying the same caps regardless of how long the medical malpractice victim survives, even though the amount of damages a victim suffered might depend on the length of time the victim survives.

¶ 42. The Maurin majority's concern about the high award for noneconomic damages for Shay Leigh Maurin's predeath pain and suffering was and remains misplaced. Remittitur is the way to address inappropriately high awards for predeath claims.²¹

¶ 43. Third, the Maurin holding is difficult to apply. For example, when different claimants are entitled to separate awards for noneconomic damages, Maurin does not determine how the caps should be allocated to the various claimants. For example, applying Maurin to the instant case, the circuit court declared without explanation that the jury award of $500,000 for the noneconomic damages sustained by Helen Bartholomew prior to her death would not be awarded to the estate.²² As a result of the circuit court's revised judgment, Robert Bartholomew received a total of $350,000. The jury awarded him $350,000 for pre-death loss of society and companionship and $350,000 for postdeath loss of society and companionship. The circuit court did not determine whether the $350,000 wrongful death cap applied to the $350,000 jury award for his postdeath claim for loss of society and companionship or to the $350,000 jury award for his predeath claim for loss of society and companionship or was allocated in to each. Allocation of the cap to the awards in the present case may not have been important, but an allocation is important when different claimants have separate awards.

¶ 44. Fourth and finally, this opinion observes that Maurin's application of the wrongful death cap to predeath claims may be constitutionally suspect. The constitutionality of the caps analyzed in the Maurin majority is suspect for several reasons.

¶ 45. First, Maurin's constitutional discussion focuses entirely on the constitutionality of caps in wrongful death claims, that is, caps on noneconomic damages for postdeath claims for loss of society and companionship ²³ But then in conclusory fashion, Maurin applies this constitutional discussion to its expanded and erroneous view that wrongful death claims encompass non-economic damages for predeath claims.²⁴

¶ 46. Second, the Maurin decision may have the impermissible effect of creating an unconstitutionally low cap for noneconomic damages for predeath claims. In Ferdon, the court held that the $350,000 cap on noneconomic damages in medical malpractice actions (adjusted for the consumer price index) set forth in Wis. Stat. § 893.55(4)(d) (2003-04) is unconstitutional under the Wisconsin Constitution.²⁵ The cap was unconstitutional because it was not rationally related to the legislative objectives proffered: lowering medical insurance premiums, lowering health care costs, and avoiding a health care crisis.²⁶

¶ 47. Ferdon was not a wrongful death case; the victim of medical malpractice survived. Ferdon did not address Wis. Stat. §§ 893.55(4)(f) and 895.04(4), the statutory provisions addressed in Maurin. The Ferdon reasoning may, however, affect the Maurin decision to the extent it applied the wrongful death cap to the recovery of noneconomic damages for predeath claims.

¶ 48. Applying the wrongful death cap to the recovery of noneconomic damages for predeath claims is not rationally related to the legislative objectives for capping medical malpractice awards. Furthermore, the rationality of the law of medical malpractice is compromised when a medical malpractice victim sustains serious injury but survives and is subject to no cap on noneconomic damages, while a victim who is fatally injured and suffers for years before death resulting from medical malpractice is limited in noneconomic damages for predeath claims to the $350,000 wrongful death cap.

¶ 49. The defendants contend that the court's language in Ferdon, 284 Wis. 2d 573, ¶¶ 16, 35-36, forecloses any analysis in the present case of the constitutionality of the wrongful death cap. As explained previously, this opinion does not address in the instant case the constitutionality of the wrongful death cap as applied to wrongful death damages properly understood, namely noneconomic damages for post-death loss of society and companionship. As the court of appeals properly explained, Ferdon did not abrogate Maurin, and the court made clear in Ferdon that Maurin's discussion of the constitutionality of the wrongful death cap did not control the Ferdon case. Ferdon addressed other issues; it did not determine the constitutionality of Maurin's global cap.

¶ 50. That the holding in Maurin applying the wrongful death cap to noneconomic damages for pre-death claims, however, may raise constitutional concerns under Ferdon is reason to be wary of this part of the Maurin decision.

¶ 51. For the reasons set forth, this opinion, joined by Justice Butler, concludes that Maurin's holding that the wrongful death cap in Wis. Stat. § 895.04(4) is the single cap to be applied globally to all noneco-nomic damages when a victim of medical malpractice action dies should be overruled, notwithstanding stare decisis.

IV

¶ 52. This opinion turns now to discuss claims for wrongful death, that is, claims for noneconomic damages for postdeath loss of society and companionship, Wis. Stat. §§ 895.03 and 895.04, and other claims relating to the death of a tort victim. Time is spent on drawing this distinction because the Maurin majority opinion erred by failing to appreciate the distinction between these types of claims.

¶ 53. Both the present case and Maurin address the application of damage caps to postdeath loss of society and companionship (noneconomic damages in wrongful death claims) and to predeath pain and suffering of the victim of the tort.²⁷

¶ 54. The distinction between a claim for noneco-nomic damages for postdeath injuries (wrongful death) and claims for noneconomic damages for a victim's predeath pain and suffering is well established in Wisconsin law. The two claims are separate claims for separate injuries that may belong to different people. As the court has stated, one cause of action begins where the other ends.²⁸ The two claims for noneco-nomic damages, those for the victim's predeath injury and those for a family member's postdeath injury, do not provide a double recovery, "but a recovery for a double wrong."²⁹

¶ 55. A wrongful death claim refers to the statutory cause of action belonging to named persons for injuries suffered postdeath.³⁰

¶ 56. As is observed in Prosser and Keaton on the Law of Torts, at English common law there was no civil action against an individual for wrongfully killing another.³¹ Wisconsin apparently followed this rule prior to the adoption of the first wrongful death statute in 1857.³² A wrongful death claim is a new cause of action unknown at common law.³³

¶ 57! Furthermore, at common law, many claims did not survive the death of the victim or the tortfea-sor.³⁴ The rule of non-survival of actions was referred to at common law by its Latin name, action personalis moritur cum persona, a personal action dies with the person.³⁵ Prior to the adoption of a survival statute,³⁶ the common law rule of non-survival of actions was generally followed in Wisconsin.³⁷ At common law, a victim's claim for predeath pain and suffering did not survive the victim's death.³⁸

¶ 58. Noneconomic damages for the victim's pre-death pain and suffering survive the victim's death under the survival statute and are referred to as survival actions.³⁹ "The survival action ... is not a new cause of action. It is rather the cause of action held by the decedent immediately before or at death, now transferred to his personal representative."⁴⁰

¶ 59. Claimants recovering under a wrongful death claim and claimants recovering under a survival claim for predeath pain and suffering may, but need not, be the same person. A wrongful death claim is brought by or on behalf of the statutorily named beneficiary.⁴¹ The personal representative of the victim's estate brings a survival action for a victim's predeath pain and suffering; any recovery is disbursed according to the relevant testate or intestate laws.⁴²

¶ 60. The defendants support the Maurin decision, arguing that the phrase "wrongful death" in the medical malpractice statutes refers not to a specific cause of action, namely noneconomic damages for loss of society and companionship, but, rather, to any cause of action seeking noneconomic damages when medical malpractice results in death. Nothing in the text of the medical malpractice statute (§ 893.55(4)(f)) or the statutory and legislative histories signals that the phrase "wrongful death" means anything other than its usual meaning in the statutes, namely postdeath claims.

¶ 61. This court's case law has recognized the distinction between wrongful death and survival actions dating back until at least 1868.⁴³

¶ 62. The earliest case in which this court explained the distinction is Brown v. Chicago & Northwestern Railway Co.,⁴⁴ in which the court stated that wrongful death and survivor actions "refer to entirely distinct losses recoverable in different rights: the one in the right of the deceased for the loss occasioned to him; the other in the right of the surviving relatives for the loss to them. Both are dependent on the injury, but only one dependent on the death with surviving relatives to take under the statute."⁴⁵ The Brown court refused to adopt the Railway Company's interpretation of the statutes (reminiscent of Maurin's interpretation of the statutes) that the wrongful death statute encompasses all claims when death results and the survival statute applies only to cases in which death does not ensue from the injury.⁴⁶

¶ 63. The distinction between wrongful death and a victim's predeath claim for pain and suffering has been accepted in Wisconsin case law; Maurin appears to be the only exception.⁴⁷ Maurin erred in conflating a wrongful death and a survival action and subjecting both to the wrongful death cap.

¶ 64. In Maurin only two types of claims, wrongful death (claim of a family member for postdeath loss of society and companionship) and survival (claim of the victim for predeath injury), were present. In the present case, however, another type of predeath claim for noneconomic damages is present, namely, a claim for a family member's noneconomic damages for pre-death loss of society and companionship.⁴⁸

¶ 65. Maurin did not address this latter predeath claim because no claim for predeath loss of society and companionship was made in that case. Nevertheless, Maurin's categorical holding that the wrongful death cap applies to all noneconomic damages in the event of death may very well cover this kind of predeath claim for loss of society and companionship.

¶ 66. Claims for predeath noneconomic damages for loss of society and companionship are similar to survival actions in that both refer to a predeath claim that may be asserted after the victim dies. In the medical malpractice context, predeath loss of society and companionship is listed in Wis. Stat. § 893.55 as an element of noneconomic damages a jury may award in a medical malpractice case.⁴⁹

¶ 67. Claims for noneconomic damages for pre-death loss of society and companionship are easily distinguishable from claims for noneconomic damages for postdeath loss of society and companionship (wrongful death). "In contrast [to wrongful death], the common-law right of spouses to bring an action for loss of consortium compensates injuries to a spouse during the period of the injured spouse's disability."⁵⁰

¶ 68. Unlike wrongful death, which is a statutory claim, a claim for a husband's loss of his wife's society and companionship upon the wife's injury existed at common law.⁵¹ Though these claims for loss of society and companionship originally . were limited to a husband's claim for a wife's disability, the doctrine has been expanded to claims upon injury to a husband, child, or parent.⁵²

¶ 69. Claims for predeath loss of society and companionship survive the death of the victim of the underlying tort and may be brought in addition to wrongful death claims for postdeath loss of society and companionship.⁵³

¶ 70. On the basis of this analysis of the types of claims made in the present case, this opinion, joined by Justice Butler, concludes that the implication in Mau-rin that a claim for predeath noneconomic damages for loss of society and companionship should be combined with a claim for postdeath noneconomic damages for loss of society and companionship (wrongful death) is just plain wrong.

¶ 71. Having established that survival actions, pre-death claims for loss of society and companionship, and wrongful death actions are separate causes of action with possibly different claimants, this opinion turns now to the medical malpractice statutes and wrongful death statutes and applies these statutes to the present case.

V

¶ 72. In Maurin, this court set forth three possible interpretations of the statutes governing medical malpractice and wrongful death caps when a victim of medical malpractice dies.

¶ 73. (1) Two caps apply when medical malpractice results in death: (a) The wrongful death cap limits noneconomic damages for postdeath claims,⁵⁴ and (b) the medical malpractice cap, if any, limits noneco-nomic damages for predeath claims.⁵⁵ The claimants recover the damages governed separately by each cap. (This position was advocated by the plaintiffs in Maurin,56 and again by Robert Bartholomew in the instant case. It was adopted by the concurring opinion in Maurin57 and is adopted in this opinion).

¶ 74. (2) A single cap limits all noneconomic damages in medical malpractice cases regardless of whether the medical malpractice results in death. The cap on all noneconomic damages is the medical malpractice cap in § 893.55(4)(d). Noneconomic damages for postdeath loss of society and companionship (that is, the wrongful death claim) are further limited to the amount stated in § 895.04(4). (This position was advanced by the defendants in Maurin and is adopted by Justice Butler in the instant case.)

¶ 75. (3) A single cap limits all noneconomic damages when medical malpractice results in death. The cap is the wrongful death cap in Wis. Stat. § 895.04(4). (This position was adopted by the Maurin majority opinion, by the circuit court's revised judgment filed after Maurin was mandated, and by the court of appeals in the instant case. This position is also advanced by the defendants and Justice Roggensack's opinion, joined by Justices Wilcox and Prosser, in the instant case, but these three justices would allow the claimants to choose to be governed instead by the medical malpractice cap.)

¶ 76. This opinion concludes that the first interpretation is consistent with the text of the statutes and the statutory and legislative histories of the statutes and the policy the legislature enunciated in enacting § 893.55(4)(f), namely to place medical malpractice wrongful death claims "on the same footing" as -wrongful death claims in other tort actions.⁵⁸

¶ 77. This decision is explained by examining first the statutes and their statutory and legislative histories, beginning with chapter 655.

A

¶ 78. Chapter 655 governs the liability of health care providers for injury caused to patients.⁵⁹ Wisconsin Stat. § 655.017 provides for limits on noneconomic damages for acts or omissions by a heath care provider. Specifically, § 655.017 provides as follows:

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 act or omission occurs on or after May 25, 1995, and for acts or omissions of an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits under s. 893.55 (4)(d) and (f). (emphasis added).

¶ 79. Section 655.017 is relevant to the present discussion because it refers to both Wis. Stat. § 893.55(4)(d) and Wis. Stat. § 893.55(4)(f), governing noneconomic damages in medical malpractice actions. A critical word in § 655.017 is "and." By using the conjunctive word "and" instead of the disjunctive word "or," § 655.017 makes clear that the caps in paragraphs (d) and (f) are not alternative provisions.⁶⁰

¶ 80. Paragraph (d) of Wis. Stat. § 893.55(4) sets out the limit on noneconomic damages in medical malpractice actions for each occurrence of medical malpractice. The cap as it existed when the instant case was tried was $350,000, adjusted to the consumer price index. Section 893.55(4)(d) (2003-04) provided as follows:

The limit on total noneconomic damages for each occurrence under par. (b) on or after May 25, 1995, shall be $350,000 and shall be adjusted 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 labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments.

In Ferdon the court declared this cap unconstitutional.⁶¹

¶ 81. Paragraph (f) of Wis. Stat. § 893.55(4) addresses the limits on noneconomic damages for wrongful death in medical malpractice cases and directs us to § 895.04(4) of the wrongful death statute setting forth such limits. Section 893.55(4)(f) states:

Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04(4). If damages in excess of the limit under s. 895.04(4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04(4) (emphasis added).

¶ 82. Section 893.55(4)(f) serves as a limitation on Wis. Stat. § 893.55(4)(d). The first clause of § 893.55(4)(f) says: "Notwithstanding the limits on non-economic damages under this subsection [4]...." The only paragraph in subsection 893.55(4) containing limits on noneconomic damages is paragraph (d), the medical malpractice cap. So, § 893.55(4)(f) should be read as follows: "Notwithstanding the limits on non-economic damages under" § 893.55(4)(d), "damages recoverable against health care providers . . . for wrongful death are subject to the limit under s. 895.04(4)" (emphasis added).

¶ 83. The meaning of Wis. Stat. § 893.55(4)(f) depends on understanding two terms in paragraph (f): "notwithstanding" and "wrongful death."

¶ 84. What does "Notwithstanding the limits on noneconomic damages under" Wis. Stat. § 893.55(4)(f) mean? Notably, paragraph (4) (f) is more specific than paragraph (4)(d). Paragraph (f) refers to a specific type of noneconomic damages resulting from a medical malpractice claim, that is, damages for postdeath loss of society and companionship caused by the medical malpractice victim's death. Under paragraph (f), the § 895.04(4) cap on noneconomic damages for postdeath loss of society and companionship in wrongful death claims governs, notwithstanding (that is, in spite of) any provision contained within § 893.55(4) governing other noneconomic damages.

¶ 85. On its face, the "notwithstanding" phrase points us away from Wis. Stat. § 893.55(4) (the cap on noneconomic damages in medical malpractice) and specifically directs us toward § 895.04(4) (the cap on post-death loss of society and companionship in wrongful death actions) to determine the recovery limits available in a wrongful death action. To read the statute otherwise would render the language "notwithstanding" superfluous.⁶²

¶ 86. "Wrongful death" is,, as discussed previously at length, a phrase of art that refers to a specific type of action: the statutory action assigned to certain family members to maintain a cause of action for postdeath loss of society and companionship caused by the death of a tort victim. At the risk of being repetitive: Wrongful death does not include claims for predeath noneco-nomic damages.

¶ 87. Tracking the reference in Wis. Stat. § 893.55(4)(f) to § 895.04(4), this opinion turns to § 895.04(4). Section 895.04(4) limits noneconomic damages in wrongful death actions to $350,000 per occurrence in the case of a deceased adult. Section 895.04(4) provides the wrongful death cap as follows:

Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death (emphasis added).

¶ 88. Section § 895.04(4) provides a limit for wrongful death damages. For purposes of the present case, it limits nonpecuniary (that is, noneconomic) damages for postdeath loss of society and companionship. No mention is made of claims for the victim's pain and suffering, and no mention is made of claims for noneconomic damages for predeath loss of society and companionship. In other words, nothing is said in the wrongful death statute about limits on noneconomic damages for predeath claims.⁶³

¶ 89. Nothing in any of the statutes indicates a legislative intent to conflate noneconomic damages for predeath claims (such as the victim's pain and suffering and a family member's predeath loss of society and companionship) and noneconomic damages for wrongful death claims for postdeath loss of society and companionship into a single cause of action or a single statutory cap. In past cases the court has been unwilling to conflate these damages in interpreting the wrongful death statute.⁶⁴

¶ 90. The legislature could have easily conflated the claims by merely adding the phrase "damages for predeath pain and suffering and damages for predeath loss of society and companionship" to Wis. Stat. § 893.55(4)(f), which addresses only wrongful death damages.

¶ 91. The words "per occurrence" in Wis. Stat. § 895.04(4) lead us to the last statutory provision to be examined, § 893.55(4)(b), which states the scope of the damage caps in medical malpractice claims for each occurrence. Section 893.55(4)(b) (2003-04) provides:

The total noneconomic damages recoverable for bodily injury or death, including any action or proceeding based on contribution or indemnification, may not exceed the limit under par. (d) for each occurrence on or after May 25, 1995, 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 negligent and from the injured patients and families compensation fund (emphasis added).

¶ 92. It has been argued that the language in Wis. Stat. §§ 893.55(4)(b) and 895.04(4) referring to "each occurrence" and "per occurrence," respectively, establishes that there must be a single global cap for all noneconomic damages in medical malpractice actions.

¶ 93. Two possible analyses may result from this view of the word "occurrence" used in these two statutes. One analysis is that the wrongful death cap limits all noneconomic damages when death results from the medical malpractice, a view adopted by this court in Maurin. An alternative analysis is that the medical malpractice cap, § 893.55(4)(d), limits all noneconomic damages when death results from medical malpractice (and the wrongful death cap may limit the damages for postdeath loss of society and companionship within the medical malpractice cap). Reliance on the word "occurrence" in each of these statutes as referring to an act of medical malpractice and requiring a single global cap on all noneconomic damages in medical malpractice cases is misplaced under both analyses.

¶ 94. The Maurin majority correctly observed that it could "conceive of no purpose for creating § 893.55(4)(f) if the legislature intended to retain the single cap in Wis. Stat. § 893.55(4)(d) [the medical malpractice cap] to cover total noneconomic damages in a wrongful death case involving medical malpractice."⁶⁵ This observation is sound. Subsection (f) was enacted, as the statutory and legislative histories show, to overturn the case law interpreting the medical malpractice cap as imposing a single global cap for all noneconomic damages in medical malpractice cases regardless of the death of the victim.⁶⁶

¶ 95. To understand the words "for each occurrence" in Wis. Stat. § 893.55(4) (b), one must read them with the words "total noneconomic damages" and "bodily injury or death."

¶ 96. The words "total noneconomic damages" and "bodily injury or death" and "for each occurrence" in Wis. Stat. § 893.55(4)(b) suggest that § 893.55(4)(b) might be the only cap that applies to all noneconomic damages when a victim dies as a result of medical malpractice. But the words "or death" do not have the same meaning in the law as "wrongful death." Properly read, section 893.55(4)(b) applies to noneconomic damages for predeath claims, regardless of whether the medical malpractice victim incurs bodily injury or death. Thus total noneconomic damages for predeath claims for the victim's pain and suffering and a family member's predeath claim for loss of society and companionship are covered under the medical malpractice cap.

¶ 97. In contrast, total noneconomic damages for postdeath claims for loss of society and companionship are subject to the wrongful death cap in Wis. Stat. § 895.04(4) (and § 893.55(4)(f)).

¶ 98. The words "per occurrence" in Wis. Stat. § 895.04(4) do not implicate this opinion's interpretation that predeath claims are limited in a medical malpractice action by the medical malpractice cap. The words "per occurrence" in the wrongful death statute, Wis. Stat. § 895.04(4), were not inserted to provide the wrongful death cap as a single global cap on noneco-nomic damages in medical malpractice actions for losses other than postdeath claims for loss of society and companionship. As the Maurin majority opinion carefully explained, the words "per occurrence" were inserted in the wrongful death statute to ensure that all claimants for wrongful death (that is, those asserting claims for postdeath loss of society and companionship) share a single wrongful death cap.⁶⁷

¶ 99. The statutory and legislative histories of the medical malpractice and wrongful death cap statutes endorse this view that the words "total noneconomic damages," "bodily injury or death," "per occurrence" and "each occurrence" do not impose a single global cap of either the medical malpractice cap or the wrongful death cap.

¶ 100. Prior to 1986, no cap existed on noneco-nomic damages in medical malpractice cases. In 1986, the legislature created a cap of $1 million on noneco-nomic damages, amending § 655.017 to state that "the amount of noneconomic damages recoverable by a claimant under this chapter ... is subject to the limit under s. 893.55(4)" and creating § 893.55(4).⁶⁸ Neither ch. 655 nor § 893.55(4) contained any reference to wrongful death. The caps sunset on January 1, 1991.

¶ 101. The court interpreted this cap in Rineck v. Johnson, 155 Wis. 2d 659, 456 N.W.2d 336 (1990), holding that when wrongful death resulted from medical malpractice, noneconomic damages for wrongful death, along with other noneconomic damages, were governed by the medical malpractice cap in § 893.55(4), not the wrongful death cap in § 895.04.⁶⁹ In other words, as the statutes were written at the time, the wrongful death cap in § 895.04(4) did not apply in medical malpractice cases. In support of this proposition, the Rineck court observed:

Significantly, ch. 655, Stats., does not state that damages recoverable in medical malpractice cases are also subject to the .. . limitation under the general wrongful death provisions of sec. 895.04(4). Had the legislature 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 .... We do not believe that the legislature would have taken pains to specifically refer to particular statutes ... if it intended to incorporate without mention other miscellaneous general provisions, such as sec. 895.04(4).⁷⁰

¶ 102. The holding in Rineck is clear. Without a provision in ch. 655 or 893 referring to the wrongful death cap, the wrongful death cap was inapplicable in medical malpractice cases.

¶ 103. Six months after the court decided Rineck, the sunset provision in Wis. Stat. §§ 655.017 and 893.55(4) took effect, and the medical malpractice cap ended. In Jelinek v. St. Paul Fire and Casualty Insurance Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994), the court held that after the medical malpractice cap was sunset, noneconomic damages in medical malpractice actions, including noneconomic damages in medical malpractice actions in which death resulted, were not capped.⁷¹

¶ 104. This "uncapped" situation for noneconomic damages in medical malpractice actions continued until 1995, when the legislature amended the statutes to reinstate a medical malpractice cap in Wis. Stat. § 893.55(4)(b) and (d) and to create § 893.55(4)(f) governing wrongful death claims.⁷²

¶ 105. The creation of Wis. Stat. § 893.55(4)(f) was a critical event in the development of caps for noneconomic damages in medical malpractice actions. The legislature in effect overturned the court's decisions in Rineck and Jelinek applying the medical malpractice cap to wrongful death claims and instituted a damage cap for a wrongful death claim arising from medical malpractice. Under the new § 893.55(4)(f), the same cap that applied to noneconomic damages for wrongful death claims in tort actions applied to noneco-nomic damages for wrongful death claims in medical malpractice actions.

¶ 106. The question that arose in Maurin and arises in the present case is how the wrongful death cap in medical malpractice actions interacts with the medical malpractice cap in medical malpractice actions. This opinion has analyzed the text and the statutory and legislative histories of the statutes and concluded that the statutes create two caps.

¶ 107. The purpose enunciated by the legislature in enacting Wis. Stat. § 893.55(4)(f) supports this interpretation of the statutes.

B

¶ 108. As both the majority and concurring opinions in Maurin observed, the legislative purpose in enacting § 893.55(4)(f) was to place medical malpractice wrongful death claims "on the same footing" as wrongful death claims in other tort actions.⁷³

¶ 109. In non — medical malpractice tort cases, when the tort victim dies, there are two types of claims for noneconomic damages: one for predeath damages and the other for postdeath damages (that is, for wrongful death).

¶ 110. To put a wrongful death claim in a medical malpractice action on the same footing as a wrongful death claim in tort actions generally, Wis. Stat. § 893.55(4)(f) provides that the same cap that generally applies in tort wrongful death actions for postdeath loss of society and companionship applies in medical malpractice tort actions as well.

¶ 111. ' If, as the majority held in Maurin, the wrongful death cap serves in medical malpractice actions as a single cap for noneconomic damages for postdeath loss of society and companionship, as well as for the medical malpractice victim's predeath pain and suffering, and for a family member's predeath claims for loss of society and companionship, medical malpractice wrongful death claims are not on the same footing as wrongful death claims in other tort cases. On the contrary, the Maurin majority's interpretation imposing a single global wrongful death cap on all noneco-nomic damages forces a wrongful death claimant in a medical malpractice action to share the capped amount with claimants for predeath noneconomic damages. Recoveries for noneconomic damages for wrongful death claimants in medical malpractice cases are, under Maurin, more severely limited than damages wrongful death claimants recover in other tort actions.

¶ 112. Similarly, if a claim for noneconomic damages for wrongful death is subject to the single global medical malpractice cap (as well as the wrongful death cap), a wrongful death claim in a medical malpractice case is not on the same footing as a wrongful death claim in other tort actions.⁷⁴

¶ 113. Thus, if the legislature's enunciated public policy is to be the touchstone of the analysis, the outcome must be that the medical malpractice and wrongful death statutes provide two separate caps.

¶ 114. This opinion thus reaches the following conclusions regarding the statutory caps:

¶ 115. (1) If the medical malpractice does not result in the death of the victim, Wis. Stat. § 893.55(4) (d), the medical malpractice cap, limits the amount all claimants may recover for noneconomic damages resulting from the malpractice. Because § 893.55(4) (d) was declared unconstitutional in Ferdon, no cap applies to claims governed by this section, except as affected by statutory revisions adopted after Ferdon.

¶ 116. (2) If the victim dies as a result of medical malpractice, recovery for claims for noneconomic damages for postdeath loss of society and companionship (i.e., wrongful death) is governed by the wrongful death cap under Wis. Stat. § 895.04(4). The medical malpractice cap limits recovery for noneconomic damages for predeath claims. In other words, the wrongful death statute and the medical malpractice statutes create different caps for the different injuries to the various individuals for their claims for noneconomic damages for pre- and postdeath loss of society and companionship.

¶ 117. (3) When awards are made for noneco-nomic damages for both predeath claims for noneco-nomic damages and wrongful death claims, the awards should not, as the circuit court suggested, be regarded as "stacked."⁷⁵ In insurance law, "stacking" refers to "the process of obtaining benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate."⁷⁶ In stacking insurance policies, one policy is placed on top of the other, providing additional coverage for the same claim.

¶ 118. If the insurance concept of stacking were applied in the context of medical malpractice damage awards, "stacking" would refer to putting one damage cap on top of another to allow greater recovery for the same claim. But a wrongful death claim and a claim for predeath noneconomic damages are not the same claim; recovery for each claim is not recovery for the same claim. Thus, awarding noneconomic damages for both a wrongful death claim and a predeath claim does not constitute stacking awards or damages.

¶ 119. (4) The unremarkable conclusion of this opinion is that the legislature allowed for the recovery of greater but still limited damages when medical malpractice results in a victim's death than when medical malpractice does not result in the victim's death.⁷⁷

VI

¶ 120. Thus far, this opinion has concluded that Maurin was incorrectly decided and must be overruled. In its place, this opinion has adopted an interpretation consistent with the text of the medical malpractice and wrongful death statutes and the statutory and legislative histories of the statutes and the enunciated legislative policy of placing medical malpractice wrongful death claims "on the same footing" as wrongful death claims in other tort actions.⁷⁸ In rejecting Maurin and adopting a two-cap analysis of the medical malpractice and wrongful death caps, this opinion rejects two alternative readings of the malpractice caps when medical malpractice results in death: a single global medical malpractice cap for all noneconomic damages and a single global wrongful death cap for all noneconomic damages.

¶ 121. This opinion now considers another analysis of the cap statutes, suggested at oral argument. Under this analysis, Maurin is correct. Claimants may, however, avoid the result dictated by Maurin by pursuing only the claims for predeath noneconomic damages under the medical malpractice cap and abandoning noneconomic damages for a wrongful death claim for postdeath loss of society and companionship. If the claimants choose to proceed with a wrongful death claim, their noneconomic damages are limited by the single global noneconomic damages cap adopted in Maurin. In other words, claimants may avoid the result dictated by Maurin by proceeding as though the medical malpractice victim had not died. According to Justice Roggensack's concurrence (joined by Justices Wilcox and Prosser), it is not too late for Robert Bartholomew to reject noneconomic damages awarded for wrongful death and, instead, accept the noneco-nomic damages for his and the estate's predeath claims that under Ferdon are not capped, or vice versa.

¶ 122. This analysis fails both in theory and practice. It fails in theory because it relies on this court's erroneous decision in Maurin. Furthermore, nothing in the statutes indicates that the legislature intended to force claimants to give up some of their claims in order to enable other claimants to recover more on their claims. Had the legislature intended to force the victim's family and estate to choose between noneco-nomic pre- and postdeath claims, it would have said so explicitly.

¶ 123. Moreover, forcing claimants to choose one of these paths fails to effectuate the legislative policy underlying the wrongful death cap in medical malpractice actions, namely to place wrongful death claims in medical malpractice cases on the same footing as wrongful death claims generally in tort cases. In medical malpractice cases, claimants would be forced to choose between noneconomic damages for postdeath loss of society and companionship (wrongful death) and recovery for predeath noneconomic damages. But in other tort cases the statutes force no such choice. Thus, this "choose your claim" analysis does not effectuate the legislative policy underlying the wrongful death cap in medical malpractice actions.

¶ 124. This suggested analysis fails in practice because claimants may have conflicting interests and may not agree on which path to follow. The present case may be an easy case in which to apply the suggested analysis. If Robert Bartholomew is the sole beneficiary of his wife's estate, he is the sole recipient of all the noneconomic damage awards. He may choose the path leading to the cap that is most advantageous to him.

¶ 125. But not every case is an easy case. When a wrongful death claimant is not the same person as the beneficiary of the estate or a claimant for noneconomic damages for predeath loss of society and companionship, the claimants may disagree about which path to follow. Nothing in the statutes and no case law has been cited to resolve a stalemate among the claimants.⁷⁹

¶ 126. Because Maurin was wrongly decided and because there are practical impediments to the "choose your own claim" analysis, this opinion and Justice Butler do not adopt this analysis.

‡ ‡ ‡ ‡

¶ 127. In sum, the author of this opinion, Justice Bradley, and Justice Crooks agree with the position advocated by Robert Bartholomew, which is essentially the position taken by the concurring opinion in Maurin. We three and Justice Butler conclude that Maurin'& interpretation of Wisconsin's medical malpractice and wrongful death statutes to impose a single global wrongful death cap on all noneconomic damages is flawed because it failed to take into account the well-established distinction in Wisconsin tort law between actions for predeath damages and actions for postdeath damages (wrongful death actions). We three further conclude that the legislature adopted two caps: a medical malpractice cap for noneconomic damages for pre-death claims and a wrongful death cap for noneconomic damages for postdeath loss of society and companionship. Claimants can thus recover for the different damages up to the separate limits of the applicable respective cap.

¶ 128. The conclusions in this opinion are compelled by basic principles of tort law and by the text and the statutory and legislative histories of the medical malpractice and wrongful death statutes capping non-economic damages, and the policy enunciated by the legislature in adopting a wrongful death cap in medical malpractice actions.

¶ 129. We three, joined by Justice Butler (whose rationale is different), therefore hold that the jury award of noneconomic damages for predeath claims, namely the claim for the decedent's predeath pain and suffering, and the jury award for predeath loss of society and companionship are governed by the cap set forth in the medical malpractice statutes. See Wis. Stat. § 893.55(4)(d). In the instant case, however, no cap applies to these noneconomic damages in medical malpractice actions because § 893.55(4)(d) was held unconstitutional in Ferdon. The jury's $350,000 award for Robert Bartholomew's postdeath loss of society and companionship stands; it is within the wrongful death cap.

¶ 130. Accordingly we three, joined by Justice Butler, overturn the contrary holding in Maurin and reverse the decision of the court of appeals. We remand the matter to the circuit court to reinstate each of the jury's awards for noneconomic damages in accordance with this opinion.

By the Court. — The decision of the court of appeals is reversed and the cause remanded to the circuit court.

1 Bartholomew v. Wis. Patients Comp. Fund, No. 2004AP2592, unpublished order (Wis. Ct. App. Aug. 24, 2005).

2 The Fund's name was recently changed to "Injured Patients and Families Compensation Fund."

3 Two defendant doctors were named in the complaint. One of the doctors was found not liable and is therefore not a party to this review.

4 See Wis. Stat. § 895.04(4) (2003-03) for the wrongful death cap.

All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise stated.

5 The phrase "wrongful death cap" refers to the amount provided by Wis. Stat. § 895.04(4) as the cap on recovery for noneconomic damages for postdeath claims for loss of society and companionship.

6 For purposes of the present review, Robert Bartholomew treats the $350,000 he received under the circuit court judgment as satisfying the jury award for noneconomic damages for his postdeath claim for loss of his wife's society and companionship.

7 The phrase "medical malpractice cap" refers to the amount provided by Wis. Stat. § 893.55(4)(d) as the cap on recovery for noneconomic damages awarded in medical malpractice actions. wrongful death statutes. This opinion does not address the 2005 legislation.

8 Wisconsin Stat. § 893.55(4)(d) (2003-04) provides:

The limit on total noneconomic damages for each occurrence under par. 0s) on or after May 25,1995, shall be $350,000 and shall be adjusted 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 labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments.

9 Effective April 6, 2006, the legislature has set new limits for noneconomic damages in medical malpractice cases in § 893.55(4)(d)1. See 2005 Wis. Act 183, § 7 (effective Apr. 6, 2006); see also 2005 A.B. 1073, § 7.

No one argues that the new § 893.55(4)(d) applies retroactively to the instant case. The Act states that it applies to acts or omissions of health care providers after the effective date of the statute, which is April 6, 2006. Both Robert Bartholomew and the defendants argue that the modification of § 893.55(4)(d) supports their interpretations of the medical malpractice and

10 Maurin v. Hall, 2004 WI 100, ¶ 128, 274 Wis. 2d 28, 682 N.W.2d 866 (Abrahamson, C.J., & Crooks, J., concurring, joined in part by Bradley, J.).

11 See Justice Butler's concurrence, note 7.

12 Maurin, 274 Wis. 2d 28, ¶ 69. See also id., ¶ 147 (Abrahamson, C.J., & Crooks, J., concurring, joined in part by Bradley, J.).

13 Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶ 94, 264 Wis. 2d 60, 665 N.W.2d 257.

14 Id., ¶ 96; Schultz v. Natwick, 2002 WI 125, ¶ 37, 257 Wis. 2d 19, 653 N.W.2d 266.

15 State v. Stevens, 181 Wis. 2d 410, 442, 511 N.W.2d 591 (1994) (Abrahamson, J., concurring) (internal quotation marks omitted).

16 Johnson Controls, 264 Wis. 2d 60, ¶¶ 98-99 (citing State v. Stevens, 181 Wis. 2d 410, 442, 511 N.W.2d 591 (1994) (Abrahamson, J., concurring) and Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 783 (1992)).

17 Johnson Controls, 264 Wis. 2d 60, ¶ 99.

18 Id. ¶ 100.

19 Justice Butler's opinion does not directly discuss stare decisis, but it also concludes that Maurin must be overturned.

20 See Justice Prosser's concurrence, ¶ 161; Maurin, 274 Wis. 2d 28, ¶¶ 10-12; Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 2005 WI 125, ¶ 252, 284 Wis. 2d 573, 701 N.W.2d 440 (Prosser, J., dissenting).

21 See Wis. Stat. § 805.15(6), which states in relevant part:

805.15 New trials.

(6) Excessive or inadequate verdicts. If a trial court determines that a verdict is excessive or inadequate, not due to perversity or prejudice or as a result of error during trial (other than an error as to damages), the court shall determine the amount which as a matter of law is reasonable, and shall order a new trial on the issue of damages, unless within 10 days the party to whom the option is offered elects to accept judgment in the changed amount.

22 The defendants contend that Robert Bartholomew requested this allocation. We cannot find such a request in the record. Regardless, the point remains that the proper method for allocation under Maurin is unclear and not provided for by the statutes.

23 Maurin, 274 Wis. 2d 28, ¶¶ 91-115.

24 Id., ¶ 116.

25 Ferdon, 284 Wis. 2d 573, ¶¶ 9-10.

26 Id., ¶¶ 105, 113.

27 See Maurin, 274 Wis. 2d 28, ¶ 13.

28 Koehler v. Waukesha Milk Co., 190 Wis. 52, 56, 208 N.W. 901 (1926).

29 Id.

30 Wis. Stat. §§ 895.03, 895.04(1); see also Maurin, 274 Wis. 2d 28, ¶ 131 (Abrahamson, C.J., & Crooks, J., concurring); W. Page Keaton et al., Prosser and Keaton on the Law of Torts § 127, at 946 (5th ed., lawyers ed., 1984).

The wrongful death statutes allow recovery for pecuniary damages and for loss of society and companionship. Wis. Stat. § 895.04(4).

31 Keaton, supra note 30, § 125A, at 940-41; see generally Wex S. Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043, 1044 (1964-65).

32 See ch. 71, Laws of 1857 (first wrongful death statute).

Under the wrongful death statute, no damages were permitted for loss of society and companionship until the statute was amended in 1931. See § 2, ch. 263, Laws of 1931; see also Bernard T. McCartan, Children: Chattels to Chums — Shockley v. Prier, 59 Marq. L. Rev. 169, 170 (1976).

33 Brown v. Chicago & Nw. Ry. Co., 102 Wis. 137, 140, 77 N.W. 748 (1898).

34 Keaton, supra note 30, § 125A, at 940-41; see generally Malone, supra note 31, at 1052-76.

35 Malone, supra note 31, at 1044.

36 Wisconsin's present "survival statute," Wis. Stat. § 895.01, provides in relevant part:

(1) In addition to the causes of action that survive at common law, all of the following also survive:...

(g) Causes of action for a violation of s. 968.31(2m) or other damage to the person.

Personal injury actions are causes of action for the recovery of "damage to the person" that survive under § 895.01(1). Wangen v. Ford Motor Co., 97 Wis. 2d 260, 310, 294 N.W.2d 437 (1980).

Damages "to which a decedent would have been entitled for pain and suffering survive his death and pass to the estate of the decedent." Wangen, 97 Wis. 2d at 310 (citing Koehler, 190 Wis. at 55).

37 See Harrigan v. Gilchrist, 121 Wis. 127, 340, 99 N.W. 909 (1904); see also Mesar v. Milwaukee Elec. Ry. & Light Co., 197 Wis. 578, 580, 222 N.W. 809 (1929); see generally Malone, supra note 31, at 1045-52.

38 Koehler, 190 Wis. at 56.

39 "Survival actions," in addition, may refer to the survival of a claim after the death of the tortfeasor. See Wis. Stat. § 895.01. This type of action is not presently before the court.

40 Keaton, supra note 30, § 126, at 942-43.

41 Wis. Stat. § 895.04(1); see Keaton, supra note 30, § 127, at 946.

42 See Keaton, supra note 30, § 127, at 947.

43 Woodward v. Chicago & Nw. Ry. Co., 23 Wis. 400, 405-06 (1868) (discussing survival and wrongful death actions).

44 Brown v. Chicago & Nw. Ry. Co., 102 Wis. 137, 142, 77 N.W. 748 (1898).

⁴⁵

46 Id at 141.

47 Compare Maurin, 274 Wis. 2d 28, ¶¶ 28-31, with State Farm Mut. Auto Ins. Co. v. Langridge, 2004 WI 113, ¶ 51 n.7, 275 Wis. 2d 35, 683 N.W.2d 75 (Eleven days after its decision in Maurin mandated, this court stated, "A wrongful death claim belongs to the surviving spouse, not the deceased's estate."); Petta v. ABC Ins. Co., 2005 WI 18, ¶ 50, 278 Wis. 2d 251, 692 N.W.2d 639 (Wilcox, J., concurring) (wrongful death claim separate and distinct from survival claim); Muchow v. Goding, 198 Wis. 2d 609, 627, 544 N.W.2d 218 (1995) (Survivors "have an independent claim based upon the wrongful death of their daughter. Their claim is separate and distinct from the claims of the estate to which [the tort victim's] claims have passed under the survival statute."); Weiss v. Regent Props. Ltd., 118 Wis. 2d 225, 233, 346 N.W.2d 766 (1984) ("[T]he wrongful death action is separate and distinct from the survival action."); Wangen, 97 Wis. 2d at 310-15 (addressing punitive damages separately in context of wrongful death and survival actions); Koehler, 190 Wis. at 56 (A survival action "is a separate and distinct one from the cause of action purely statutory,... which substantially follows the so-called Lord Campbell's Act of England in 1846, abolishing here and there the common-law rule that for the death of a person there could be no damages recovered in favor of any survivor."); Brown, 102 Wis. at 142 (explaining the distinction between survival and wrongful death actions); Woodward, 23 Wis. at 405-06 (discussing separately survival and wrongful death actions); Estate of Merrill ex rel. Mortenson v. Jerrick, 231 Wis. 2d 546, 549-50, 605 N.W.2d 645 (Ct. App. 1999) ("A survival action is distinct from a wrongful death action."); Miller v. Luther, 170 Wis. 2d 429, 435-36, 489 N.W.2d 651 (Ct. App. 1992) (Wrongful death "is not an action that survives the decedent's death; it is a new action brought for the benefit of the statutory beneficiaries"); Jaeger v. Raymark Indus., Inc., 610 F. Supp. 784, 786 (E.D. Wis. 1985) ("The survival action and the wrongful death action are distinct under Wisconsin law. The survival action is brought by the decedent's estate for the injury to the decedent; the wrongful death action belongs to the named beneficiaries for their injury. '[T]he latter action begins where the former ends.'" (citations omitted)).

48 The victim's claim for pain and suffering and a family member's claim for predeath loss of society and companionship exist regardless of whether the victim dies.

49 See Wis. Stat. § 893.55(5)(b) ("Every award of damages under ch. 655 shall specify the sum of money, if any, awarded for each of the following... (b) Loss of consortium, society and companionship or loss of love and affection.").

50 Kottka v. PPG Indus., Inc., 130 Wis. 2d 499, 519, 388 N.W.2d 160 (1986).

51 Schwartz v. City of Milwaukee, 54 Wis. 2d 286, 292, 195 N.W.2d 480 (citing Kavanaugh v. City of Janesville, 24 Wis. 618 (1869) and other more recent cases).

52 Theama v. City of Kenosha, 117 Wis. 2d 508, 511-513, 519-28, 344 N.W.2d 513 (1984) (minor child's claim for loss of parent's society and companionship); Shockley v. Prier, 66 Wis. 2d 394, 402-05, 225 N.W.2d 495 (1975) (parent's claim for loss of society and companionship of minor child); Ferdon, 284 Wis. 2d 573, ¶ 20 (parent's claim for loss of society and companionship of child); Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 558, 150 N.W.2d 137 (1967) (wife's claim for loss of husband's society and companionship); Susan M. Knepel, Torts — Child May Recover for Loss of Parent's Society and Companionship, 68 Marq. L. Rev. 174, 174-76 (1984-85); Bernard T. McCartan, Children: Chattels to Chums — Shockley v. Prier, 59 Marq. L. Rev. 169, 170-71 (1976); see also 2 Dan B. Dobbs, Law of Remedies 8.1(5), at 400-03 (2d ed. 1993).

53 See, e.g., Kottka, 130 Wis. 2d at 515-20 (court rejects argument that common-law claim for loss of consortium due to injury of spouse is extinguished by death of spouse or alternatively that claim survives but legislature intended to limit amount recovered by wrongful death cap in Wis. Stat. § 895.04(4); contrary to insurer's claim that wife's loss of consortium during last months of husband's life is included in her claim for nonpecuniary wrongful death damages under § 895.04(4), wife permitted to bring action for both pre- and postdeath loss of society and companionship). See also 2 Dan B. Dobbs, Law of Remedies 8.3(5), at 442-43 (2d ed. 1993).

54 Wis. Stat. § 895.04(4).

55 Wis. Stat. § 893.55(4)(d).

56 See Maurin, 274 Wis. 2d 28, ¶ 18.

57 Id., ¶¶ 117-234 (Abrahamson, C.J., & Crooks, J., concurring).

58 Id., ¶ 69. See also id., ¶ 147 (Abrahamson, C.J., & Crooks, J., concurring).

59 See generally Wis. Stat. §§ 655.001-.009.

60 Discussing the legislature's choice of the conjunctive word "and," the Maurin concurring opinion observed:

The text of § 655.017 does not limit recovery to the lesser of either the § 893.55(4)(d) limit for medical malpractice or the § 893.55(4)(f) limit for wrongful death. Rather, § 655.017 directs us to both §§ 893.55(4)(d) and ffi to assess the limits on damages imposed in cases of medical malpractice causing wrongful death.

Section 655.017 recognizes that both the limit on noneconomic damages under Wis. Stat. § 893.55(4)(d) and the limit on wrongful death damages under Wis. Stat, § 893.55(4)© are applicable in medical malpractice actions. Had the legislature intended to limit recovery to either the § 893.55(4)(d) limit or the § 893.55(4)© limit depending on whether the patient died, it would have used different language.

See Maurin, 274 Wis. 2d 28, ¶¶ 181-182 (Abrahamson, C.J., & Crooks, J., concurring).

61 Ferdon, 284 Wis. 2d 573, ¶ 10.

62 As is explained in the treatise on Wisconsin damage law:

The legislature has limited an injured plaintiffs right to recover damages for pain and suffering in claims against health care providers. A $350,000 cap (to be adjusted at least annually by the director of state courts to reflect changes in the consumer price index) was imposed, effective May 25, 1995, on noneconomic damages, defined to include pain and suffering, in medical negligence cases in which the claim accrued on or after the statute's effective date. Wis. Stat. §§ 893.55(4)(a), (d); 655.017. Wrongful death claims are excepted from this noneconomic loss cap. Wis. Stat. § 893.55(4)(f).... (emphasis added).

1 The Law of Damages in Wisconsin § 5.5, at 3 n.l (Russell M. Ware ed., 3d ed. 2003).

63 The title of Wis. Stat. § 895.04 makes clear that the statute applies to a "[pllaintiff in a wrongful death action." Although a title is not determinative of the meaning of the statute, it is informative. State v. Black, 188 Wis. 2d 639, 645, 526 N.W.2d 132 (1994) ("In the face of such plain and unambiguous language we must disregard the title of the statute. Consideration of a statutory title may be used only to resolve doubt as to the meaning of the statute.").

64 See Brown, 102 Wis. at 141; Kottka, 130 Wis. 2d at 515-20; ¶¶ 61, 68, supra.

65 Maurin, 274 Wis. 2d 28, ¶ 35 (emphasis in Maurin opinion).

The Maurin majority opinion also observed that the statement in Jelinek v. St. Paul Fire & Casualty Insurance Co., 182 Wis. 2d 1, 11, 512 N.W.2d 764 (1994), that ch. 655 had "set tort claims resulting from medical malpractice apart from other tort claims," "is the complete answer to the otherwise legitimate argument that negligence claims and wrongful death claims are separate and distinct causes of action." Maurin, 274 Wis. 2d 28, ¶ 84. As Robert Bartholomew observed in his brief and at oral argument, this comment is not a complete answer because it fails to account for the distinction between actions for wrongful death claims and actions for predeath claims. This opinion does not disrupt the holding that ch. 655 set medical malpractice claims apart from other tort claims by capping claims for noneconomic damages for predeath claims.

66 See Rineck v. Johnson, 155 Wis. 2d 659, 665-69, 456 N.W.2d 336 (1990).

67 Maurin, 274 Wis. 2d 28, ¶ 79 (quoting Memorandum from Don Dyke, Senior Staff Attorney, Wisconsin Legislative Council 2 (Apr. 21, 1998) (on file with Wisconsin Legislative Council, Madison, Wis.)) ("The legislature added the phrase 'per occurrence1 to make it clear that 'in wrongful death medical malpractice actions, the limit is a total limit and does not apply individually to each person who may bring an action for loss of society and companionship.'"). See also Maurin, 274 Wis. 2d 28, ¶ 80.

The memorandum states:

Act 89 replaces the current $150,000 limit on damages for loss of society and companionship in wrongful death actions with a $500,000 limit per occurrence in the case of a deceased minor or $350,000 per occurrence in the case of a deceased adult. The new limits apply both to wrongful death actions involving medical malpractice and to other wrongful death actions. Presumably, reference is made to ''per occurrence" to provide that in wrongful death medical malpractice actions, the limit is a total limit and does not apply individually to each person who may bring an action for loss of society and companionship. (As noted above, in wrongful death actions not involving medical malpractice, s. 895.04(4), Stats., has already been interpreted as applying the current $150,000 limit in the aggregate.).

68 See 1985 Wis. Act 340, §§ 30, 72; Wis. Stat. §§ 655.017, 893.55(4) (1987-88).

69 Rineck, 155 Wis. 2d at 665-69.

70 Id. at 666-67.

71 Jelinek, 182 Wis. 2d at 9-10.

72 See 1995 Wis. Act 10, §§ 5, 8, 9, 10; see also 1995 A.B. 36.

73 Maurin, 274 Wis. 2d 28, ¶ 69; see id,., ¶ 147 (Abrahamson, C.J., & Crooks, J., concurring).

The court reached a similar conclusion six years ago in Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, ¶ 16, 236 Wis. 2d 316, 613 N.W.2d 120: "Section 893.55(4)(f) made applicable to medical malpractice cases the limit on damages for loss of society and companionship that was established in Wis. Stat. § 895.04(4), the wrongful death statute." (footnote omitted).

74 Applying both the medical malpractice cap and the wrongful death cap to wrongful death claims for postdeath noneconomic loss of society and companionship leads to absurd consequences. From 1998 until Ferdon was decided in 2005, the wrongful death cap for minor children ($500,000) was higher than the "total noneconomic damages cap" for medical malpractice ($350,000 adjusted for inflation). Thus a bigger cap is forced to fit within a smaller cap. The $500,000 cap on wrongful death claims would not be realized in a medical malpractice claim because the cap exceeded the limit for noneconomic damages in medical malpractice.

Thus, under the view taken in Justice Butler's concurrence, the legislature in 1998 passed a statute that resulted in the embedding of the $500,000 cap for the wrongful death of a child into the $350,000 (inflation-adjusted) cap for medical malpractice. Such an interpretation produces an absurd result. See Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶ 32, 293 Wis. 2d 123, 717 N.W.2d 258 ("Because a literal application ... would produce an absurd and unreasonable result... [the court must] construe the statute to avoid that result."). Justice Butler's concurrence fails to follow the rule of statutory interpretation that courts should construe statutes to avoid absurd results.

75 The circuit court stated in its July 1, 2004 decision on the various postverdict motions that applying two caps is "commonly referred to as 'stacking the caps.'"

The circuit court concluded that the medical malpractice cap and the wrongful death cap should not be "stacked."

The Maurin majority opinion also used the words "stack one on top of the other" to refer to applying both caps. Maurin, 274 Wis. 2d 28, ¶ 42.

76 Black's Law Dictionary 1412 (7th ed. 1999) (emphasis added).

77 The defendants contend that this outcome has the effect of overturning the court's decision in Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, 236 Wis. 2d 316, 613 N.W.2d 120. The Czapinski decision governed only who is eligible to bring a cause of action for wrongful death in a medical malpractice case; it did not address the amount of damages those claimants could recover. Czapinski, 236 Wis. 2d 316, ¶ 2; see Maurin, 274 Wis. 2d 28, ¶ 154 (Abrahamson, C.J., & Crooks, J., concurring). The holdings of the instant case have no effect on Czapinski.

78 Maurin, 274 Wis. 2d 28, ¶ 69; see also id., ¶ 147 (Abrahamson, C.J., & Crooks, J., concurring, joined in part by Bradley, J.).

79 In addition, even if there were no conflict among claimants, claimants may not be able to control which cap applies. If a claimant states claims based only on predeath injuries, a defendant might defend on the ground that the medical malpractice resulted in death and that, under Maurin, the damages are subject only to the wrongful death cap. Or if the claimant states claims based only on wrongful death, the defense might be that the medical malpractice did not result in death. Under either circumstance the claimant may lose all noneconomic damages. These are issues not addressed by Maurin or this alternative interpretation.