MAURIN v. HALL

¶ 117. SHIRLEY S. ABRAHAMSON, C.J., and N. PATRICK CROOKS, J. (concurring).

This is a statutory interpretation case that affects the entire health care community and everyone in the state because we all have been or will be patients. The plaintiffs and amicus urge one interpretation of the statutes; the defendants and amicus urge another. The majority opinion adopts neither.

¶ 118. Rather, the majority has heard a different drumbeat and follows it, adopting an interpretation of the statutes totally different from any argued or briefed here or in the court of appeals.

¶ 119. Some justices proceed to make decisions without benefit of arguments or briefs by the parties. Others prefer more restraint. Some justices apparently perceive that the rule of law is advanced by a sua sponte approach. We do not.

¶ 120. This case should not be decided without asking the parties to brief the majority opinion's novel interpretation of the statutes and to reargue the case. We urge the majority to seek supplemental briefs from the parties before promulgating its novel interpretation of the statutes. The rule of law is generally best developed when matters are tested by the fire of adversarial briefs and oral arguments.

¶ 121. This court has emphasized its "preference for requesting briefs whenever they might aid the court" and has acknowledged that "statutory interpretation is an area in which the courts usually should be willing to delay their determination until they have the assistance of briefs." Indeed, a court's sua sponte determination of an issue may raise due process considerations: A court may be depriving parties of their right to a meaningful appeal, to due process notice, and to adversary counsel. If there ever was a case that cried out for briefs from adversarial parties to assist the court, this statutory interpretation case is it. We are at a loss to understand why the majority refuses to call for additional briefs.

¶ 122. The majority opinion derives its interpretation of the statutes by piecing together (in a convoluted manner) selected parts of the statutory texts, the medical malpractice "crisis," statutory history, legislative history of enacted laws and defeated bills (including private communications between a legislator and staff), arguments of proponents and opponents in lobbying for bills, and case law interpreting earlier statutes.

¶ 123. We rely on the briefs and oral argument for our discussion of the proper statutory interpretation and remittitur. Notwithstanding the lack of briefing on the constitutionality issue the majority's novel interpretation raises, and recognizing that we, like the majority, would benefit by hearing from the litigants, we nevertheless explore the unconstitutionality of the majority's novel interpretation using the information we now have.

¶ 124. We agree with the majority opinion that the judgment of the circuit court must be reversed and remanded.

¶ 125. The majority opinion and this concurrence vigorously disagree about the interpretation of the applicable statutes. On remand, the defendants' liability and the plaintiffs' recovery are significantly different under the majority opinion and this concurrence.

¶ 126. The majority opinion and this concurrence focus on the limits on noneconomic damages in medical malpractice actions resulting in death and the cap on loss of society and companionship in wrongful death actions. Economic damages are not capped in medical malpractice actions and pecuniary damages are not capped in wrongful death actions. We therefore do not focus on these damages.

¶ 127. We present the concurrence as follows: We first discuss the fundamental legal flaw underlying the majority's reasoning and analyze the majority's statutory interpretation in light of this flaw. We then set forth our own interpretation of the statutes, an interpretation that coincides with that of the plaintiffs. Finally, we conclude that the majority's interpretation of the statutes is unconstitutional and that the remittitur was an erroneous exercise of discretion.

¶ 128. A fundamental legal flaw pervades the majority's concocted interpretation of Wisconsin's medical malpractice and wrongful death statutes. It permeates and distorts the majority's view of the statutes.

¶ 129. The flaw: The majority opinion fails to recognize the simple yet well-established distinction between a survival action and an action for wrongful death. This distinction has been recognized repeatedly in Wisconsin.

¶ 130. Let us illustrate the distinction. When a victim dies, some claims are for pre-death noneconomic damages suffered by the victim ( e.g., pain and suffering) and others are for pre-death noneconomic damages suffered by family members of the victim ( e.g., a spouse's loss of consortium). These are generally referred to as survival actions.

¶ 131. In contrast, damages for post-death injuries fall within the wrongful death statute. The wrongful death statute limits noneconomic damages to loss of society and companionship and caps these damages. Wrongful death claims do not encompass other types of noneconomic damages.

¶ 132. In ordinary tort actions, the victim and the family recover unlimited "survival" damages, and the family recovers the capped "loss of society and companionship" damages.

¶ 133. Yet according to the majority opinion, in medical malpractice actions when death results, both types of damages, survival damages and wrongful death damages, are limited to the cap set forth in the wrongful death statute even though the wrongful death statute addresses only damages for loss of society and companionship. This conclusion is surprising in light of the fact that the majority can point to no evidence anywhere to show that anyone at any time has interpreted the cap for wrongful death damages to encompass anything else besides damages for loss of society and companionship. The whole focus of legislative activity was to limit recovery for loss of society and companionship, not to limit recovery for other noneconomic damages suffered in wrongful death medical malpractice cases. Furthermore, neither the text of the statute nor the majority opinion instructs the parties or courts on how to allocate noneconomic damages when, as in this case, noneconomic damages for the survival action and the wrongful death action exceed the wrongful death cap on loss of society and companionship, or how comparative negligence applies to each type of action.

¶ 134. The majority argues that the plain words of the statute and its interpretation of the legislative history compel it to override this basic legal principle differentiating between survival actions and wrongful death actions. However, neither the text nor the legislative history nor the legislative objective nor the case law compels this strange reading.

¶ 135. For example, the majority cites the following statutory language in Wis. Stat. § 893.55(4)(b), emphasizing "total," "or death," and "for each occurrence" in support of its theory:

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 patients compensation fund.

¶ 136. The majority concludes that the words "total" and "for each occurrence" reveal that the legislature intended a single recovery for each incident or "occurrence" involving medical malpractice. Furthermore, the majority concludes that the words "or death" show that the legislature intended to provide a single recovery even when the medical malpractice resulted in a wrongful death.

¶ 137. The majority goes astray when it equates the word "death" with a cause of action for wrongful death. In the Rineck case, the court interpreted "bodily injury or death" in Wis. Stat. § 893.55(4)(b). The court held that the wrongful death statute had no application to medical malpractice as the statutes were then drafted. The words "bodily injury or death" in § 893.55(4)(b) were the only words that could be construed as applying to medical malpractice personal injury actions, survival actions, and wrongful death actions.

¶ 138. The words "bodily injury or death" in Wis. Stat. § 893.55(4)(b) have to be interpreted in light of the addition of § 893.55(4)(f), relating to wrongful death. The addition of § 893.55(4)(f) was probably prompted by the Rineck decision. The adoption of § 893.55(4)(f) was meant to undo Rineck so that the word "death" in Wis. Stat. § 893.55(4)(b) no longer references a cause of action for "wrongful death." As a result of the adoption of § 893.55(4)(f), § 893.55(4)(b) governs the cap for noneconomic damages in medical malpractice actions except that § 895.04(4) governs the cap on loss of society and companionship in medical malpractice wrongful death actions.

¶ 139. In fact, when the term "wrongful death" is used in Wis. Stat. § 893.55(4)(f), the applicable statutory language states that the limits contained in Wis. Stat. § 893.55(4) (the medical malpractice cap) do not apply. Section 893.55(4)(f) reads as follows:

Notwithstanding the limits on noneconomic damages under this subsection [§ 893.55(4)], damages recoverable against health care providers . . . for wrongful death are subject to the limit under s. 895.04(4) (emphasis added).

¶ 140. The majority argues that we interpret the word "notwithstanding" to mean "in addition to" instead of "in spite of." Nonsense! To the contrary, we read the statute as follows: In spite of the limits set forth in Wis. Stat. § 893.55(4) relating to noneconomic damages (statutorily defined to include a long list of noneconomic damages), damages recoverable against health care providers for wrongful death, that is, for loss of society and companionship, are subject to the limit under § 895.04(4). The only noneconomic damages for wrongful death are damages for loss of society and companionship.

¶ 141. In contrast, the majority rewrites paragraph (4)(f) of Wis. Stat. § 893.55 to state that when death is caused by medical malpractice, the limit on all noneconomic damages defined in § 893.55(4)(a) is no longer governed by § 893.55(4); instead all noneconomic damages in medical malpractice are limited to whatever the limit is set forth for the loss of society and companionship in wrongful death actions. But of course that is not what the text of the statute says.

¶ 142. Wisconsin Stat. § 893.55(4)(f) specifically identifies damages for wrongful death (the only such damages being damages for loss of society and companionship) and directs us toward that wrongful death statute to determine the applicable limits on damages for wrongful death. The statute does not read, as the majority would have it read, that in the event of a patient's death, the cap set forth in the wrongful death statute for loss of society and companionship applies to all noneconomic damages listed in the medical malpractice statute. If the legislature intended to so provide, the statute would have been drafted to read simply as follows: "Notwithstanding the limits on noneconomic damages under this subsection, in the event of the death of a patient caused by medical malpractice, all noneconomic damages recoverable against health care providers . . . would be subject to the limit under s. 895.04(4)."

¶ 143. The majority opinion fails to distinguish between the phrase "noneconomic damages" broadly defined in the medical malpractice statute (Wis.Stat. § 893.55(4)(a)) and damages for loss of society and companionship, the only noneconomic damages recoverable in wrongful death actions. The majority opinion just ignores the difference and conflates the two.

¶ 144. The majority opinion does this in spite of the fact that the prefatory note to the bill that created Wis. Stat. § 893.55(4)(f) (an explanatory note in plain language required by statute to be printed and to accompany a bill when introduced) explains that claims for loss of society and companionship in medical malpractice wrongful death would be treated in the same manner as claims in other civil actions involving death, meaning that the award would be for loss of society and companionship:

The bill limits the damages for loss of society and companionship that may be recoverable in medical malpractice cases involving death to the $150,000 maximum currently established for other civil actions involving death (emphasis added).

¶ 145. We should assume that a subsection that specifically references wrongful death, as does Wis. Stat. § 893.55(4)(f), should govern how damages for wrongful death, that is, damages for loss of society and companionship, are calculated with regard to that specific cause of action, irrespective of the limits on other causes of action contained in § 893.55(4). And this is certainly the case when preemptory language such as "notwithstanding" is used to separate that statutory provision from the rest of the subsection, as is the case here.

¶ 146. The majority also finds it significant that "loss of society and companionship" is contained in the definition of noneconomic damages set forth in Wis. Stat. § 893.55(4)(a), quoted at note 20 of this concurrence. However, the majority fails to recognize that a cause of action for loss of society and companionship can be raised for the period of time in which a patient was incapacitated before death and does not refer exclusively to post-death loss of society and companionship, damages that are covered in wrongful death actions. For damages for loss of society and companionship in wrongful death, the more specific statute is Wis. Stat. § 893.55(4)(f), and that statute should govern here, notwithstanding (that is, in spite of) any provision contained in Wis. Stat. § 893.55(4) governing other noneconomic damages.

¶ 147. The majority's fundamental failure to recognize the distinction between survival actions and actions in wrongful death also permeates its interpretation of the legislative history. The majority argues that by enacting Wis. Stat. § 893.55(4)(f), the legislature, reacting to our decisions in Rineck and Jelinek, intended merely to place medical malpractice wrongful death claims "on the same footing" as other wrongful death claims. Absolutely. We agree with the majority.

¶ 148. Ironically, the majority's own interpretation of the statutes is inconsistent with the very legislative purpose the majority proffers. The majority opinion defeats the legislature's attempt to attain parity between wrongful death claims in tort cases generally and wrongful death claims in medical malpractice cases.

¶ 149. Under the majority's interpretation, the wrongful death cap for loss of society and companionship supersedes the medical malpractice cap for all noneconomic damages if the patient dies. Wrongful death claimants are thus forced to share their limited recovery with those entitled to recover damages under survival actions. In this sense, wrongful death claims in medical malpractice actions are not "on the same footing" as other wrongful death claims in other tort actions. Recoveries for wrongful death claimants in medical malpractice cases are more severely limited.

¶ 150. This result is apparent in the case before us today. The parents will be forced to relinquish either their full wrongful death award or the estate's award for pre-death pain and suffering because the total recovery for all damages exceeds $300,000, even though the statute specifically states that the caps on damages for wrongful death (loss of society and companionship) are set forth in Wis. Stat. § 895.04(4) notwithstanding the limits contained in Wis. Stat. § 893.55(4).

¶ 151. The majority's reliance on case law also falls well short of the mark. The majority opinion snips language from various court decisions and quotes passages out of context to support its theory. It starts with Jelinek, which is inapplicable to our case because it was decided when no caps existed in medical malpractice cases and before Wis. Stat. § 893.55(4)(f) was enacted.

¶ 152. The majority then lifts language from Lund v. Kokemoor. But Lund had to do with whether punitive damages were recoverable in medical malpractice lawsuits. The language lifted from Lund is of no value here.

¶ 153. The majority cites Hegarty v. Beauchaine in support of its theory. Hegarty is inapplicable, however, because it involved a dispute over which statute of limitations applied in a medical malpractice case involving wrongful death. Since there is no similar provision to Wis. Stat. § 893.55(4)(f) directing us away from the medical malpractice statute in order to determine the appropriate statute of limitations in a medical malpractice action for wrongful death, the Hegarty decision also is of no value here.

¶ 154. Finally, the majority's reliance on Czapinski also is misplaced. First of all, Czapinski merely acknowledges that the wrongful death cap is applicable to medical malpractice cases, and says nothing about how the cap applies. Czapinski had to do with determining who was eligible to bring a cause of action for wrongful death in a medical malpractice case, and not with the amount of damages those claimants could recover. Thus, Czapinski also is of no value here.

¶ 155. We prefer to rely on authority that is directly on point rather than quoting passages from prior case law out of context. When we follow this steadfast principle it is apparent that nobody has ever interpreted the wrongful death cap as encompassing anything other than damages for loss of society and companionship, even in medical malpractice cases. Indeed, the well-respected treatise on damage law in Wisconsin has interpreted the statutes as exempting wrongful death damages for loss of society and companionship from the medical malpractice cap for noneconomic damages, writing as follows:

The legislature has limited an injured plaintiff's 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 non-economic 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 non-economic loss cap. Wis. Stat. § 893.55(4)(f) (emphasis added).

¶ 156. The majority's misinterpretation of the law also is evident in its surprising holding that each parent may collect the full amount under the wrongful death cap for loss of society and companionship.

¶ 157. In a possible attempt to save face and avoid the absurd result compelled by its interpretation of the medical malpractice and wrongful death statutes that the total recovery available for the survival actions and the wrongful death action is a mere $150,000, the majority conjures up an interpretation of the wrongful death statute that allows each parent in this case to recover a full $150,000 under the wrongful death statute.

¶ 158. The majority cannot produce any evidence that anyone has ever applied the wrongful death cap in tort actions generally or in medical malpractice actions specifically in the way they interpret Wis. Stat. § 893.55(4)(f), that is, that the wrongful death cap applies to each parent's claim rather than both parents' claims in the aggregate.

¶ 159. In support of its argument the majority offers us nothing except two private communications between a member of the legislative council staff and one legislator, Mark Green, identified by the majority as "key legislators." The private memoranda cited by the majority fail to provide any evidence, let alone "compelling" evidence (as the majority opinion characterizes the memoranda) that in wrongful death actions arising from medical malpractice in the case of a minor child, each parent can recover the full amount of the cap. Nor does the majority ever show that "key legislators understood that any eligible claimant under Wis. Stat. § 655.007 was entitled to make a separate claim for wrongful death damages. . . ."

¶ 160. In fact, one private memorandum cited by the majority to justify its reading of the statute states only that:

It is arguable that the causes of action for loss of society and companionship in medical malpractice actions for wrongful death are separate and the current $150,000 limit applies to each cause of action individually, not in the aggregate. [ Jelinek v. St. Paul Fire and Casualty Ins. Co., 182 Wis.2d 1, 512 N.W.2d 764 (1994).] (emphasis added).

¶ 161. This same memorandum states that:

Presumably, reference is made to "per occurrence" [in 1997 Wis. Act 89] 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 (emphasis added).

¶ 162. The earlier private memorandum cited by the majority merely states as follows:

The causes of action [for loss of society and companionship in a medical malpractice action for wrongful death] appear to be separate — each surviving person allowed to bring an action may do so — and, arguably, the $150,000 limit applies to each cause of action individually, not in the aggregate. [ Jelinek v. St. Paul Fire and Casualty Ins. Co., 182 Wis.2d 1, 512 N.W.2d 764 (1994).] (emphasis added).

¶ 163. It is for good reason that the staff member chose the words "arguable," "presumably," "appear," and "arguably" with the reference to the Jelinek decision. When Jelinek was decided, no limits existed on noneconomic damages in medical malpractice actions. Rineck had previously decided that the wrongful death limits did not apply in medical malpractice. Jelinek affirmed that conclusion. Thus, before the enactment of Wis. Stat. § 893.55(4)(f), each claimant in a medical malpractice action was allowed to recover for his or her own loss of society and companionship as a separate action under the medical malpractice statute governing all noneconomic damages, not under the wrongful death statute.

¶ 164. Interestingly enough, in its rush to present "compelling evidence" that "key legislators understood that any eligible claimant under Wis. Stat. § 655.007 was entitled to make a separate claim for wrongful death damages," the majority unwittingly provides us with compelling evidence supporting our interpretation of the statutes. The majority overlooks the fact that the analysis provided to Rep. Green by the staff member centers only on "damages for loss of society and companionship" and reflects an understanding that the cap on wrongful death damages, even in cases of medical malpractice, consists only of damages for loss of society and companionship. This fundamental legal principle that damages for wrongful death consist only of damages for loss of society and companionship, which was apparent to Rep. Green and a staff member, is lost on the majority of this court.

¶ 165. While Rep. Green might have been interested in putting an end to any uncertainty about the continued vitality of Jelinek and Rineck by inserting the language "per occurrence," this does not mean that anyone has ever, before today, interpreted the wrongful death statute to allow each parent to collect the full amount under the cap.

¶ 166. In fact, the prefatory note to the bill that created Wis. Stat. § 893.55(4)(f) (an explanatory note in plain language required by statute to be printed and to accompany a bill when introduced) explains that claims for loss of society and companionship in medical malpractice wrongful death would be treated in the same manner as claims other civil actions involving death, meaning that the award would be available in the aggregate, not individually:

The bill limits the damages for loss of society and companionship that may be recoverable in medical malpractice cases involving death to the $150,000 maximum currently established for other civil actions involving death (emphasis added).

¶ 167. Such an explanation of the bill, which was available to the entire legislature before enactment of the law, is a much more compelling indicator of what the legislation meant than private communications with a legislator speculating about what existing legislation "arguably" or "presumably" meant in light of a case interpreting a totally different statute.

¶ 168. Additionally, a case cited and quoted in both memoranda that the majority submits in support of its theory holds to the contrary. In York v. National Continental Ins. Co., the plaintiffs contended that each parent was entitled to recover damages for loss of society and companionship up to the statutory limit. The court rejected this argument and held that under the wrongful death statute, recovery was limited by statute and the statutory sum was to be divided among members of the statutorily defined class of claimants:

We hold that the § 895.04(4), Stats., limit of $50,000 for loss of society and companionship in a wrongful death action is recoverable by the spouse of the person deceased, or if no spouse is living by the class of children of the person deceased as defined in § 895.04(2), or if no children are living by the class of parents of the person deceased (emphasis added).

¶ 169. Moreover, the cases this court has heard involving Wis. Stat. § 893.55(4)(f) and the increased limits for wrongful death in medical malpractice cases demonstrate that those who were most involved with the issues understood that the $150,000 cap applied to both parents in aggregate in medical malpractice wrongful death cases.

¶ 170. For example, in Schultz v. Natwick, the parties treated the limit for wrongful death claims under Wis. Stat. § 893.55(4)(f) as encompassing the claims for loss of society and companionship of both surviving parents, both before and after the "per occurrence" language was added. See also Neiman v. American National Property and Casualty Company, in which the parties litigated their case with the understanding that the caps for wrongful death applied to the parents in aggregate, not separately.

¶ 171. The Schultzes' understanding of the application of the cap is important because Barbara Schultz was one of the key advocates for the increased caps in wrongful death in medical malpractice cases. The Schultzes' only noneconomic claim was for their loss of society and companionship of their young child who tragically died as a result of medical malpractice. Ms. Schultz's comments about wrongful death and medical malpractice, quoted by the majority, have to be read in this context. Ignoring the context of the Schultzes' claims, the majority opinion distorts Ms. Schultz's comments to support its reading of the statute. The majority now mocks the Schultzes' efforts by interpreting their law to reduce awards for the death of victims of medical malpractice.

¶ 172. Forgetting the victims of malpractice, the majority errs in its interpretation because its total and sole concern is for health care providers and the cost of insurance premiums. The majority cynically attributes this attitude to the legislature and the strength of the health care providers' lobby.

¶ 173. The majority's interpretation ignores the legislature's and governor's concern for the welfare of the people evident in the Justin Sky Millar — Lindsey Brooke Schultz law increasing damages for loss of society and companionship in wrongful death actions to $350,000 and $500,000. Governor Thompson expressed this concern for the victims and their families as follows when he signed the law:

The legislation I am signing today is named the "Justin-Lindsey Bill" for two families who tragically lost children and fought courageously to raise the limits on compensation. Lindsey Brooke Schultz died at age 13 during a routine appendectomy when a hole was punctured in her abdominal aorta. Justin Sky Millar died at age 11 from an allergy shot. These are two tragedies. Today we make sure that families like Lindsey's and Justin's have the opportunity to pursue fair compensation for their losses. So it is in memory of Justin and Lindsey that I sign this legislation into law.

¶ 174. The majority opinion has lost sight of the welfare of the victims in its interpretation. Too bad for the people of the state! The legislature can correct the majority's misinterpretation of a law. The families of the state will have to make their voices heard again.

¶ 175. We would answer the three questions posed by the majority opinion as follows:

(1) The plaintiffs in an action in which death is caused by medical malpractice may recover the limits of noneconomic damages for both medical negligence and wrongful death.

(2) The wrongful death limit is unconstitutional under the majority's interpretation of the statutes.

(3) The circuit court erroneously exercised its discretion in ordering remittitur of the verdict in favor of the estate for pre-death pain and suffering, reducing the award from $550,000 to $100,000.

¶ 176. We set forth our reasoning in full even though the discussion may to some extent overlap or repeat arguments made earlier in our criticism of the majority opinion. We do so in order to illustrate the logical simplicity with which our interpretation applies to the facts of this case, and so that the reader may contrast this approach with the convoluted way in which the majority stretches, and reaches beyond, the bounds of accepted legal principles in order to reach its desired result.

¶ 177. We determine that the limits on noneconomic damages set forth in Wis. Stat. §§ 893.55(4)(d) and (4)(f) serve as two separate and distinct recoveries when medical malpractice causes wrongful death.

¶ 178. The issue presented is one of statutory interpretation, a question of law that this court determines independently of the circuit court and court of appeals, benefiting from the analysis of those courts.

¶ 179. We begin our journey through the statutes with chapter 655. Wisconsin Stat. § 655.017 states that in medical malpractice actions, "the amount of non-economic damages recoverable by a claimant or plaintiff . . . for acts or omissions of a health care provider . . . is subject to the limits under §§ 893.55(4)(d) and (f)" (emphasis added).

¶ 180. Section 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 § 893.55(4)(d) and (f) (emphasis added).

¶ 181. 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 (f) to assess the limits on damages imposed in cases of medical malpractice causing wrongful death.

¶ 182. 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)(f) 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)(f) limit depending on whether the patient died, it would have used different language.

¶ 183. Wisconsin Stat. § 893.55(4)(d) sets the limit on noneconomic damages in medical malpractice actions for each occurrence at $350,000 (adjusted for inflation). Section 893.55(4)(d) states in full 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.

¶ 184. Wisconsin Stat. § 893.55(4)(f) states that "notwithstanding the limits on noneconomic damages" under § 893.55(4) (namely $350,000), "damages recoverable against health care providers . . . for wrongful death are subject to the limit under § 895.04(4)." Wisconsin Stat. § 893.55(4)(f), which we set forth again, provides as follows:

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 § 895.04(4). If damages in excess of the limit under § 895.04(4) are found, the court shall make any reduction required under § 895.045 and shall award the lesser of the reduced amount or the limit under § 895.04(4).

¶ 185. Because Wis. Stat. § 893.55(4)(f) refers to § 895.04(4), which governs the limit on damages for loss of society and companionship in wrongful death actions regardless of whether these damages arise in medical malpractice cases or other torts, we turn to § 895.04(4). Section 895.04(4) governs limits on loss of society and companionship damages in wrongful death actions both in medical malpractice and in other torts. The limit on damages for loss of society and companionship set by § 895.05(4), the wrongful death statute, was $150,000 in this case. Section 895.04(4) provides 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 $150,000 for loss of society and companionship may be awarded to the spouse, children or parents of the deceased.

¶ 186. In support of his argument that the statutes create a "global cap" of $350,000, Dr. Hall directs us to Wis. Stat. § 893.55(4)(b). Wisconsin Stat. § 893.55(4)(b) states that the "total noneconomic damages recoverable for bodily injury or death" arising from medical malpractice "may not exceed" $350,000. Dr. Hall argues that the legislature's use of the word "death" demonstrates its intent to include wrongful death claims within the "total noneconomic damages recoverable" under the medical malpractice damage cap.

¶ 187. Interpreting Wis. Stat. § 893.55(4)(b) to include wrongful death as part of "total noneconomic damages" would, however, render paragraph (f) superfluous. Paragraph (f) states that "[ n]otwithstanding the limits on noneconomic damages" under § 893.55(4) ($350,000), "damages recoverable against health care providers . . . for wrongful death are subject to the limit under § 895.04(4)" (emphasis added). On its face, the "notwithstanding" phrase points us away from Wis. Stat. § 893.55(4) (the $350,000 cap on noneconomic damages in medical malpractice) and toward § 895.04(4) (establishing the $150,000 cap on loss of society and companionship in wrongful death actions) to determine the recovery limits available in a wrongful death action.

¶ 188. Dr. Hall attempts to sidestep this inconvenient "notwithstanding" phrase by arguing that paragraph (f) means that recovery for wrongful death is limited to the amount set forth in Wis. Stat. § 895.04(4) ($150,000) even if the "total noneconomic damages" are further limited by § 893.55(4)(d) ($350,000).

¶ 189. We agree with the parents that the text of Wis. Stat. § 893.55(4)(f) means that wrongful death actions are separated from the various provisions of Wis. Stat. § 893.55(4) (medical malpractice) and that notwithstanding any other limits on damages contained in the medical malpractice statute, the statute on wrongful death retains its integrity even in a case involving medical malpractice. The legislature's phrasing "notwithstanding the limits on noneconomic damages" under § 893.55(4) ($350,000) specifically directs us to the cap in the wrongful death statute in evaluating the award for noneconomic damages (that is, the loss of society and companionship) in a wrongful death action. To read the statute otherwise would render the language "notwithstanding" superfluous, something we cannot do if we are to be true to the legislative text.

¶ 190. Our reading of the statute is consistent with the history of Wis. Stat. §§ 655.017 and 893.55(4). Upon original passage, chapter 655 did not include a cap on noneconomic damages in medical malpractice cases. Nor did chapter 655 refer to wrongful death damages. It was not until 1986 that the legislature created a cap on noneconomic damages in medical malpractice actions; the cap was $1,000,000. Section 655.017 was amended to read that "the amount of noneconomic damages recoverable by a claimant under this chapter [governing medical malpractice] . . . is subject to the limit" (singular) under section 893.55(4). Chapter 655 contained no explicit reference to a separate cap for wrongful death actions.

¶ 191. Because chapter 655 did not expressly state that damages recoverable in medical malpractice actions (the loss of society and companionship) were subject to the limitation under the general wrongful death provisions of Wis. Stat. § 895.04(4), this court held in Rineck v. Johnson that the wrongful death limit on noneconomic damages was superseded by the higher noneconomic damage cap in medical malpractice cases. According to the Rineck court, § 893.55(4)(b), the cap governing medical malpractice, not § 895.04, applied to wrongful death claims caused by medical malpractice.

¶ 192. One year after our decision in Rineck, the provisions of Wis. Stat. § 655.017 and its companion § 893.55(4) were sunset. Therefore, from 1991 to 1995 no cap existed at all on noneconomic damages in medical malpractice cases. In Jelinek v. St. Paul Fire and Casualty Ins. Co., the court held that after January 1, 1991, noneconomic damages for medical malpractice actions involving death were not limited.

¶ 193. Possibly as a response to our decisions in these cases, in 1995 the legislature amended the statutes and chapter 655 to create Wis. Stat. § 893.55(4)(f). Section 893.55(4)(f) originated in 1995 Assembly Bill 36 and in effect undoes Rineck by making the wrongful death limitation in § 895.04(4) applicable to medical malpractice actions. The Legislative Reference Bureau's analysis of the bill quoted in part earlier demonstrates that the bill creates two separate statutory limits, one on noneconomic damages in medical malpractice cases and one on damages for wrongful death (loss of society and companionship) arising from medical malpractice.

¶ 194. Finally, imposing Dr. Hall's "global cap" leads to absurd consequences. Under the present statute, the wrongful death cap for minor children ($500,000) is higher than the "total noneconomic damages cap" for medical malpractice ($350,000 adjusted for inflation). Interpreting the statute as Dr. Hall asserts means the bigger cap is forced to fit within a smaller cap. Also, the new $500,000 cap on wrongful death claims would not be realized in a medical malpractice claim because the new cap exceeds the limit for noneconomic damages in medical malpractice.

¶ 195. Dr. Hall argues that since the $350,000 limit under Wis. Stat. § 893.55(4) is adjusted for inflation and therefore eventually will be greater than the $500,000 limit under § 895.04(4), his interpretation is valid. We disagree. Nothing in text of the new $500,000 wrongful death cap or its history gives any indication that the new cap would have to await the inflation index.

¶ 196. For the reasons set forth we conclude that the limits on noneconomic damages set forth in Wis. Stat. §§ 893.55(4)(d) and (4)(f) relating to medical malpractice and wrongful death serve as two separate and distinct recoveries when medical malpractice causes wrongful death.

¶ 197. The jury in this case awarded $2,500,000 to Shay's parents as wrongful death damages for their loss of society and companionship. In addition, the jury awarded $550,000 to Shay's estate for her pre-death pain and suffering. The majority would reduce the wrongful death damages from $2,500,000 to $300,000 as the total amount of noneconomic damages that is recoverable by her parents. Because the majority concludes that $300,000 is the most that may be recovered, it declines to address the remittitur of the $550,000 award of the jury to the estate for pain and suffering. Given the link between Article I, Section 5 and Article I, Section 9 in the Wisconsin Constitution, the majority reaches an untenable conclusion. Such a low cap on noneconomic damages effectively denies plaintiffs the constitutional right to trial by jury under Article I, Section 5 and, in turn, to a remedy as guaranteed by Article I, Section 9 of the Wisconsin Constitution. Moreover, the majority's conclusion is violative of equal protection principles embodied in the Wisconsin and United States Constitutions.

¶ 198. We turn first to decisions from other states that have addressed caps on noneconomic damages in relation to constitutional provisions protecting the rights to trial by jury and to a remedy for injuries or wrongs. In Smith v. Department of Insurance, the Florida Supreme Court concluded that a $500,000 cap on noneconomic damages in medical malpractice cases violated Florida's Constitution. Article I, § 21 of the Florida Constitution stated the following: "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." In a previous case, Kluger v. White, involving the setting of a floor for noneconomic damages in which a plaintiff would not be entitled to sue if the plaintiff's damages were below a specified amount, the Florida Supreme Court noted the unconstitutionality of such a provision, since it would hinder a party's access to the courts. Noting that its holding in Kluger was directly controlling in Smith, the court stated:

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

¶ 199. The court in Smith rejected the appellees' arguments that medical malpractice plaintiffs were not denied access to the courts, since the legislature had merely capped damages and not completely abolished a cause of action. In rejecting this argument, the court recognized the link between constitutional provisions concerning trial by jury and right to a remedy through access to courts, when the court stated the following:

This reasoning focuses on the title to article I, section 21, "Access to courts," and overlooks the contents which must be read in conjunction with section 22, "Trial by jury." Access to courts is granted for the purpose of redressing injuries. A plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery at $450,000. Nor, we add, because the jury verdict is being arbitrarily capped, is the plaintiff receiving the constitutional benefit of a jury trial as we have heretofore understood that right. Further, if the legislature may constitutionally cap recovery at $450,000, there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000, or $1,000, or even $1.

¶ 200. The Smith court further noted that the court would reach the issue of whether there was a rational basis for the cap only when "the legislature provides an alternative remedy or abrogates or restricts the right based on a showing of overpowering public necessity and that no alternative method of meeting that necessity exists." The court noted that the legislature had failed to provide alternate remedies, and the appellees failed to argue that the damages cap was based on public necessity and another such remedy was unavailable.

¶ 201. In Lucas v. United States, the court concluded that a statutory damages cap unconstitutionally limited a litigant's "right of access to the courts for a `remedy by due course of law.'" First, the court noted that the legislature failed to provide Lucas with any alternative means by which he could seek redress. The court acknowledged the legislature's concern with liability insurance rates and its desire to see a decrease in those rates. Nevertheless, the court stated that "Texas Constitution article I, section 13, guarantees meaningful access to the courts whether or not liability rates are high." Drawing from the reasoning set forth in Smith, Lucas rejected the defendant's argument that the applicable statutory cap did not abolish a cause of action and, therefore, the plaintiff was not denied access to the courts. The court in Lucas cited with approval the language in Smith that stated that a plaintiff is denied the constitutional right to a jury trial when a jury verdict is arbitrarily capped. Citing with approval reasoning from the Supreme Court of New Hampshire, the court stated the following: "`It is simply unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and therefore most in need of compensation.'"

¶ 202. The issue of lowering a statutory cap on damages so drastically that it could be deemed unreasonable and result in a denial of the constitutional right to trial by jury and denial of the right to a remedy, has also been raised and decided in Maine. In Peters v. Saft, the Supreme Judicial Court of Maine noted that "it is conceivable that a statute could limit the measure of tort damages so drastically that it would result in a denial of the right to trial by jury and the denial of a remedy. . . ."

¶ 203. In Wisconsin, we have long recognized the importance of a litigant's right to a remedy.

A suitor, therefore, may properly insist upon a complete remedy and is clearly within his constitutional rights in refusing, for any reason, to waive any part of his just demand or defense. That in obtaining such relief the amount involved is far less than the cost to the state or community in awarding it to him is not and should not be permitted to influence trial courts and juries in considering the merits of the issue.

¶ 204. Moreover, we have discussed this right to a remedy in reference to Article I, Section 9 of the Wisconsin Constitution.

If we recur to our own organic state law we find the fundamental provision that "Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws." § 9, art. I, Const. This is a basic and valuable guaranty that the courts of the state should be open to all persons who in good faith and upon probable cause believe they have suffered wrongs. Is it not against public policy to permit one person to deprive another from asserting his rights in court?

¶ 205. In Stanhope v. Brown County, this court discussed Article I, Section 9 in relation to statutory damages caps. The court noted that Article I, Section 9 provides that

[e]very person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.

¶ 206. In Stanhope, we further noted our decision in McCoy v. Kenosha County, where we stated that "the phrase `injuries and wrongs' in the `certain remedy' clause were [sic] to be understood with reference to those injuries and wrongs for which remedies were available at common law when the constitution was adopted in 1848." In McCoy, we noted that "[t]his court has recently and frequently asserted the importance and value to the individual of this very provision, § 9, art. I, Const., and that it is not to be slighted or minimized. . . ."

¶ 207. Though the decision was later reversed, in Estate of Makos v. Masons Health Care Fund, the lead opinion concluded that a statute of repose violated the plaintiffs constitutional right to a remedy under Article I, Section 9 of the Wisconsin Constitution, since it closed the courtroom doors before the plaintiff even discovered that she was injured. In a concurrence written by Justice Crooks, the history behind and the implications of Article I, Section 9 were rather fully explored. While Article I, Section 9 does not confer any rights itself, it does guarantee a remedy when an injury results from an infringement of a legal right. Under the common law, apparently existing prior to adoption of the Wisconsin Constitution, individuals in Wisconsin had a right to bring medical malpractice actions. With the establishment of ch. 655 in 1975, this right became legislatively recognized. The concurrence ultimately concluded

that courts should consider the following three principles, along with the nature of the cause of action, in determining whether an individual has been denied the right to a remedy in violation of art. I, § 9 through the legislature's modification, reduction, or elimination of a right to bring a cause of action: (1) whether the legislature modified, reduced, or eliminated a post-constitutional cause of action created by the legislature itself; (2) whether the legislature modified, reduced, or eliminated a common law or pre-constitutional statutory cause of action and provided a reasonable alternative; and (3) whether, if the legislature did not provide a reasonable alternative, it has established that an overpowering public necessity for the abolishment of such right exists, and that no reasonable alternative exists.

¶ 208. While Article I, Section 9 on its own would not result in a conclusion of unconstitutionality here, when linked with the right to trial by jury, however, we conclude that the majority's interpretation of the medical malpractice statutes is unconstitutional. More specifically, it is unreasonable and unconstitutional to manufacture, out of whole cloth, a global cap covering the parent's damages for wrongful death and the estate's damages for pain and suffering. Such a cap offends the parent's right to trial by jury under Article I, Section 5 as linked to the right to a remedy under Article I, Section 9. We emphasize that we are not taking issue with the constitutionality of statutory damages caps in general. Rather, we conclude that the majority's interpretation of the statutes as requiring such a reduced global cap on noneconomic damages is unconstitutional.

¶ 209. The majority's action in conflating wrongful death and survivorship actions and in interpreting the statutes as imposing a global cap (here $300,000 for both actions) paints the legislature as a body that has reduced common law and pre-constitutional causes of action, which are now statutory, without providing a reasonable alternative. We do not believe that this is what the Wisconsin Legislature did, but rather it is what the majority now does by its interpretation of the statutes involved. Certainly, the plaintiffs in this case will be adversely affected by the majority's arbitrary decision. Moreover, it is indisputable that this decision will have a negative impact well beyond the parties in this case. As Barbara Schultz, an aggrieved parent, told legislators and the public: "With the $150,000 cap, it is making it very hard for cases to even get to court. Why? Medical malpractice cases are very expensive. Attorneys sometimes turn down cases. The reason is, the expert testimonies, which are usually from Doctors, also must be paid."

¶ 210. Finally, we again turn for guidance to decisions from other states, and we conclude that the majority's interpretation is violative of equal protection principles. In Arneson v. Olson, the North Dakota Supreme Court concluded that a statute capping medical malpractice damages violated the equal protection rights of injured victims of medical malpractice negligence in violation of the North Dakota Constitution. The court in Arneson stated the following:

At the beginning of this opinion we quoted the preamble of the statute, containing its legislative purposes. These include assurance of availability of competent medical and hospital services at reasonable cost, elimination of the expense involved in nonmeritorious malpractice claims, provision of adequate compensation to patients with meritorious claims, and the encouragement of physicians to enter into practice in North Dakota and remain in such practice so long as they are qualified to do so.

Does the limitation of recovery of seriously damaged or injured victims of medical negligence promote these aims? We hold that it does not and that it violates the Equal Protection Clause of the State Constitution. Certainly the limitation of recovery does not provide adequate compensation to patients with meritorious claims; on the contrary, it does just the opposite for the most seriously injured claimants. It does nothing toward the elimination of nonmeritorious claims. Restrictions on recovery may encourage physicians to enter into practice and remain in practice, but do so only at the expense of claimants with meritorious claims.

¶ 211. Similarly, the majority's interpretation in this case fails to provide adequate compensation for the claimants here and does nothing to deter the filing of nonmeritorious claims. The majority's interpretation of the medical malpractice statutes seeks to "impose the burden of supporting the medical care industry solely upon those persons who are most severely injured, and therefore most in need of compensation" by effectively writing pain and suffering out of the equation when a patient dies. In Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 837 (1980), the New Hampshire Supreme Court concluded that a $250,000 limit on noneconomic damages denied the plaintiffs in medical malpractice cases equal protection under the New Hampshire Constitution. The court in Carson rejected the defendants' arguments that the cap on noneconomic damages was constitutional because the defendants were not limited in the amount recoverable for economic loss. The court aptly noted that an award for economic loss does not provide the same remedy as that provided by a recovery for noneconomic damages. The court stated:

It is clear, however, that a tort victim "gains" nothing from the jury's award for economic loss, since that money replaces that which he has actually lost. It is only the award above the out-of-pocket loss that is available to compensate in some way for the pain, suffering, physical impairment or disfigurement that the victim must endure until death.

¶ 212. Wisconsin courts interpret the Wisconsin and United States constitutional provisions governing equal protection identically. Parties bringing an equal protection claim must prove that a statute treats similarly situated members of a class differently. Since a fundamental right is not involved in a medical malpractice claim, we conclude that a rational basis standard is applicable in this case. In general, we "uphold a statute under equal protection principles if we find that a rational basis supports the legislative classification." We must "determine whether a classification scheme rationally advances a legislative objective. In so doing, we are obligated to locate or, in the alternative, construct a rationale that might have influenced the legislative determination."

¶ 213. Here, the majority adopts a rationale that fails to advance the Legislature's objective and unfairly assigns the burden of maintaining the financial well-being of the medical care industry to injured plaintiffs.

¶ 214. We conclude that the majority's new formula for configuring noneconomic damages in medical malpractice cases is violative of the equal protection clause in the Wisconsin Constitution, since it unduly burdens medical malpractice claimants without a rational basis that justifies its interpretation of the medical malpractice statutes.

¶ 215. In sum, the majority's tortured interpretation of the statutes, which results in the concoction of a global cap applicable to both wrongful death and survivorship actions, does violence to the plaintiffs' rights to a jury trial in conjunction with their right to a remedy, and, further, is violative of their right to equal protection.

¶ 216. We turn now to the issue of remittitur. The majority does not discuss whether the circuit court erroneously exercised its discretion in ordering remittitur of the jury's award of pre-death pain and suffering. It concludes that such a discussion is unnecessary because the verdict for pain and suffering has no effect on the recovery in the present case. The majority assumes that the parents share equally in the child's estate, but because each parent can recover only $150,000, the damages for the child's pain and suffering are irrelevant. As we stated previously, the majority opinion leaves open the question of how to allocate damages when different claimants are entitled to damages for survival actions and to damages for wrongful death.

¶ 217. We decide the remittitur issue to complete discussion and give full consideration to the parties' arguments. The jury awarded damages to the Estate for Shay's pain and suffering prior to her death in the amount of $550,000. The circuit court granted remittitur, reducing the award to $100,000.

¶ 218. Before we can decide this issue, we must first decide whether the parents have standing to raise the issue of remittitur on cross-appeal. Whether a person has standing is a question of law that this court determines independently of the circuit court, benefiting from the analysis of the circuit court.

¶ 219. Dr. Hall contends that the parents are precluded from raising the remittitur issue because they accepted the order of remittitur instead of seeking a new trial. In support of his argument, Dr. Hall cites Burmek v. Miller Brewing Co., in which the court held that when a plaintiff is given an option to accept a reduced amount of damages or a new trial limited to damages, acceptance of the reduced damages precludes appellate review of the circuit court's determination of the damage issue.

¶ 220. The parents counter that subsequently, in Plesko v. City of Milwaukee, the court modified the Burmek rule. Plesko states that "the rule in the Burmek case should be limited to the situation where the party awarded damages appeals" and that when an opposing party appeals, the party who has accepted the option to take judgment for such a reduced amount of damages may nevertheless have a review on appeal of the circuit court's determination of the damage issue.

¶ 221. Because Dr. Hall initiated the appeal, the rationale undergirding the Burmek rule is not present in this case. The Plesko court explained its reasoning behind the modification of Burmek as follows:

The objective underlying the recommended procedure for granting an option to accept judgment for a reduced amount of damages in lieu of having a new trial, where the damages awarded by the jury are determined by the trial court to be excessive, is to avoid the delay and expense of an appeal or a new trial. In most situations, it is likely that the party will accept judgment for such reduced damages rather than undergo the expense, delay, and uncertainty of an appeal or new trial. Nevertheless, if a party found liable to pay damages appeals the judgment resulting from the other party's accepting such reduced damages, this objective has been negatived. When plaintiff is forced to undergo an appeal by the action of an opposing party, after plaintiff has accepted judgment for such reduced damages, it seems unfair to prevent his having a review of the trial court's determination leading to the reduction in damages, especially if plaintiff has accepted same only to avoid the delay and expense attending an appeal.

¶ 222. We conclude that the parents have standing to raise the remittitur issue on cross-appeal. An appeal on any grounds constitutes the kind of "new proceeding" that Burmek was meant to discourage. The cross-appeal on the damages issue does not cause any more delay or expense than Dr. Hall's appeal already has. It is the identity of the party raising the appeal that is determinative under Plesko.

¶ 223. Having reached the conclusion that the parents have standing, we further conclude that the circuit court erroneously exercised its discretion in ordering remittitur of the jury's pre-death pain and suffering award.

¶ 224. The standard applicable for review of a circuit court's reduction of damages is well-settled. When a circuit court "states its reasons for finding the jury's award of damages excessive and for reducing the award," the reviewing court will reverse the circuit court's determination only if "the reviewing court concludes there has been an erroneous exercise of discretion." When a circuit court fails to analyze the evidence or to set forth the reasons supporting its decision, the reviewing court should give no deference to the circuit court's decision. Conclusory statements regarding the excessiveness of an award are insufficient to establish appropriate exercise of discretion when contemplating a damage award.

¶ 225. The parents contend that the circuit court failed to state the reason for the reduction of damages with the requisite particularity and that therefore no deference is owed to the circuit court's determination that the jury award was excessive. We agree with them.

¶ 226. The circuit court reduced the $550,000 jury verdict to $100,000, concluding a discussion of the difficulty of comparing the pain and suffering of different people, with the following statement:

[T]here was a limited period of time in which this young child unfortunately had to endure conscious pain and suffering. . . . and I think it's in a case like this, it's not what figure a jury should have come up with, but rather, I think, at what point that point is of being excessive. There is no doubt in my mind that $550,000 for what had been the evidence in this case was excessive. The difficulty is where was the point where it became so. . . . [C]onsidering all of those factors, I believe that the plaintiff ought to be given the option . . . of accepting a sum of $100,000. . . .

¶ 227. The circuit court did mention that Shay Maurin was "very sick, very very sick," that she had a "troubled night," and that there was "no question that she had" suffered. The depth and scope of Shay's suffering, however, are absent from the circuit court's discussion.

¶ 228. As the circuit court saw it, the limiting factor was time. The circuit court emphasized that the duration of Shay's pain and suffering was less than two full days. The circuit court did not state what other factors it considered when it reduced the award. The circuit court did not enunciate a rationale for substituting an award of $100,000 in place of the figure reached by the jury.

¶ 229. Under these circumstances a reviewing court must review the entire record and determine whether the jury award is excessive. In conducting its analysis a reviewing court must view the evidence in the light most favorable to the party prevailing with the jury.

¶ 230. The progression of Shay's symptoms in the last two days of her life was horrific. Expert physicians informed the jury about the throes of diabetic ketoacidosis. Treating nurses and doctors described her condition spiraling downward. Shay suffered frequent urination, insatiable thirst, lethargy, nausea, dry heaves, restless nights, vomiting brown and black substances, panting, fatigue, and exhaustion.

¶ 231. Shay Maurin was a sick girl before she saw Dr. Hall. On March 5 she went to the General Clinic of West Bend because she was lethargic, continually drinking fluids, and not eating well. The next day, she had no energy to eat anything. When she did try to eat, she would gag. When her mother tried to put her to bed, she began vomiting. Her mother took her to the bathroom, where Shay urinated and dry heaved simultaneously. Shay's mother took her daughter to Hartford Memorial Hospital just before midnight on March 6, 1996. Dr. Hall attended to her but misdiagnosed her.

¶ 232. The next day Shay was tired and miserable. Shay stayed with her aunt, who called Yvette Maurin to report that Shay was vomiting "brown, tobaccoy-looking stuff." The girl was lying on the floor and could not get up, so Yvette Maurin had to carry her into the clinic. She reported to the doctor that Shay was dry heaving, urinating, and drinking more. Yvette Maurin carried her daughter to the hospital, where Dr. Madenberg diagnosed that Shay was in acute diabetic ketoacidosis. Shay called out to her mother while Yvette conferred with the doctor about what to do. Ms. Maurin decided to send Shay to the Children's Hospital of Wisconsin. Shay fell unconscious on the way to the children's hospital and never woke up; she died the next day.

¶ 233. Reviewing the evidence in the light most favorable to the plaintiff and the jury verdict, we conclude that the circuit court erred and further conclude that the record supports the jury's pain and suffering award to the Estate. We would therefore remand the cause to the circuit court with directions to vacate the circuit court's order of remittitur and cap the damages for pain and suffering pursuant to Wis. Stat. § 893.55(4)(d).

¶ 234. For the reasons set forth, we write separately first to object to the majority's sua sponte interpretation of the statutes and its failure to give the parties an opportunity to brief and argue the issue. We further conclude that the majority has misinterpreted the statutes and invalidated the limits imposed in the medical malpractice statutes.

¶ 235. JON P. WILCOX, J. (concurring).

I join the majority opinion in all respects but write separately to address the remittitur issue discussed by the concurrence of Chief Justice Abrahamson and Justice Crooks. The concurrence concludes that "the circuit court erroneously exercised its discretion in ordering remittitur of the jury's pre-death pain and suffering award." Concurrence, ¶ 223. However, the record here clearly indicates that the circuit court considered the appropriate evidence and set forth a logical, rational basis for its decision. As such, the concurrence misapplies the "erroneous exercise of discretion" standard of review. Rather than deferring to the circuit court's proper discretionary determination, the concurrence would have this court substitute its own judgment for that of the circuit court. Thus, I write separately to restate the "erroneous exercise of discretion" standard of review and to emphasize the importance or deferring to discretionary determinations of the circuit court when the circuit court has provided a logical, on-the-record, rationale for its decision.

¶ 236. The concurrence concludes that "the circuit court failed to state the reason for the reduction of damages with the requisite particularity and therefore no deference is owed to the circuit court's determination that the jury award was excessive." Concurrence, ¶ 225. After setting forth only a small portion of the circuit court's rationale behind its remittitur decision, the concurrence faults the circuit court for supposedly mentioning only one basis for reducing the damage award and failing to consider other appropriate factors. Concurrence, ¶¶ 227-28. The concurrence then undertakes an independent review of the record and determines ab initio that the record supports the jury's damage award. Concurrence, ¶¶ 229-33. As will be demonstrated below, the concurrence is both wrong on the law and wrong on the facts.

¶ 237. It is well established that a circuit court may remit the jury's damage award where it determines that the award "`is too large to be supported by the evidence.'" Wester v. Bruggink, 190 Wis.2d 308, 326, 527 N.W.2d 373 (Ct.App. 1994) (quoting Makowski v. Ehlenbach, 11 Wis.2d 38, 42, 103 N.W.2d 907 (1960)). See also Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 626, 563 N.W.2d 154 (1997) ("Notwithstanding the jury's broad discretion, the circuit court has the power to reduce the amount of . . . damages to an amount that it determines is fair and reasonable."). The power of the circuit court to order remittitur was established in Powers v. Allstate Ins. Co., 10 Wis.2d 78, 91-92, 102 N.W.2d 393 (1960). In Management Computer Services, Inc. v. Hawkins, Ash, Baptie Co., 206 Wis.2d 158, 190-91, 557 N.W.2d 67 (1996), this court reaffirmed the Powers rule and confirmed that the circuit court's decision to order remittitur is a discretionary act and, as such, is reviewed on appeal under the "erroneous exercise of discretion" standard. Under this standard,

[a] reviewing court will not reverse a circuit court's discretionary determination if the record shows that discretion was in fact exercised and there exists a reasonable basis for the circuit court's determination after resolving any direct conflicts in the testimony in favor of the prevailing party, even if the reviewing court would have reached a different conclusion than the circuit court.

¶ 238. Thus, an appellate court's review of a circuit court's decision to order remittitur is limited to two inquiries: 1) determining whether the circuit court considered the appropriate evidence and 2) examining whether the bases that the circuit court identified for its decision are reasonable. See Mgmt. Computer Servs., 206 Wis.2d at 191, 557 N.W.2d 67. Under this standard, a reviewing court may not review the record ab initio or reverse a circuit court's remittitur order if the circuit court's decision satisfies both of these requirements. Id. at 191-92, 557 N.W.2d 67; Carlson Erickson Builders, 190 Wis.2d at 669, 529 N.W.2d 905. Applying these standards to the case at bar, the record clearly indicates that the circuit court analyzed the relevant evidence on the record and provided a reasonable basis for its decision.

¶ 239. First, we must examine whether the record indicates that the circuit court analyzed the relevant evidence. See McCleary 49 Wis.2d at 277, 182 N.W.2d 512 ("In the first place, there must be evidence that discretion was in fact exercised."). The concurrence concludes that an ab initio standard of review is appropriate because the circuit court failed to state what factors it considered other than the length of time the deceased suffered. Concurrence, ¶¶ 228-29. Particularly, the concurrence faults the circuit court for not considering the "depth and scope" of the deceased's suffering. Concurrence, ¶ 227. However, the record clearly demonstrates that the circuit court considered all aspects of the deceased's pain and suffering, including the scope and depth thereof.

¶ 240. While the concurrence sets forth but a brief excerpt of the circuit court's remittitur decision, concurrence, ¶ 226, in fact, the circuit court's discussion of the relevant facts underlying its decision was quite extensive:

In this case, we had a young child that became ill and progressively so. The Court's consideration of question eight and that of the jury must be as to conscious pain and suffering. We have a young child, we do not have an adult. We did not have somebody that was able, as an adult might, to express what they were going through in those moments, in those last days of her life.

All we can do is perceive what she was by either the physical indicators, whether it was the vomiting, whether it was apparent worry. The last words that were spoken by her were related we can read several meanings into that, an expression of love, perhaps, an expression of contemplated death. We don't know. We certainly know that the last day or more of her life was one of trauma until she got down to Children's Hospital. We know at that point she was not conscious.

She was conscious at least to the placement — into the placement of that ambulance, perhaps during that trip, and for hours before. She got up that morning, or I should say she awoke or was aware in the early hours of that morning that she was very sick, very, very sick. She had a troubled night and that was part of the progression of which was spoken. True, there was not acute distress in the early stages but there certainly was progressive deteriorating distress of which there was conscious pain and suffering.

It is difficult for both the jury, I believe as well as myself, to sit and put some dollar sign which is the only measure of how much pain and suffering consciously there was. But that is the job that they were given and that I have. A court should not disturb their judgment unless it is clearly apparent that they went beyond some point. What is that point? It is not written in books. It is written nowhere except in discretion and judgment.

. . . .

In this case I believe the limitations are not that a young girl had suffered. No, there's no question that she had. And the question is not how much-in this question is not how much her parents had suffered because it was a mess. It was how much she suffered consciously. And we can — it's so difficult for human beings to place a number. We cannot wear the shoes of another person, be it a five year-old child or 60 year-old adult. It is so difficult to compare pain and suffering, whether somebody is suffering from third-degree burns on 43 percent of their body, and I've seen those cases, how tragic they are. I can't compare that to a five year-old girl who may very well know that she is not ever going to see her parents again and never going to live her life expectancy, or just the worry and concern of will she get through this day, does she know that, or why does it hurt so bad. Those are the very, very difficult things that went through the minds of a jury and go through mine.

The limiting factor here is time. And there is no number, nor is it right and proper as our Appellate Courts have reiterated to put — it would be reversible error, as we know, to have — if Mr. End had argued minutes of pain and suffering. We are prohibited from doing so. But the reality is that there was a limited period of time in which this young child unfortunately had to endure conscious pain and suffering. And I believe that — and I think it's in a case like this, its not what figure a jury should have come up with but rather, I think, at what point that point is of being excessive. There is no doubt in my mind that $550,000 for what had been the evidence in this case was excessive. The difficulty is where was the point where it became so.

I do not believe that this jury verdict in it's [sic] entirety was perverse, nor necessarily that their answer to question eight was perverse, or solely the result of passion, emotion that one cannot erase in a case like this.

Considering all the factors, I believe that the plaintiff ought be given an option under the Powers rule of accepting a sum of $100,000 for conscious pain and suffering and answer question eight or be given the option under that rule of having a new trial on damages.

(Emphasis added.)

¶ 241. Thus, while the circuit court did not discuss the gruesome particulars of the deceased's journey towards death, the circuit court indicated that it was well aware that the deceased experienced a great deal of conscious pain and suffering that continued to progress before she passed away. The court specifically mentioned that it considered the deceased's progressive trauma, vomiting, and other "physical indicators" of pain and suffering during the last hours of her life. The court demonstrated it considered the nature and scope of the deceased's suffering by noting that although "there was not acute distress in the early stages[,] . . . there certainly was progressive deteriorating distress of which there was conscious pain and suffering." In addition, the court indicated that it was aware of the fear and anxiety the deceased must have experienced in not knowing what was wrong with her and not knowing whether she would be with her parents or die.

¶ 242. The record plainly indicates that the circuit court considered the scope and depth of the deceased's conscious suffering in light of her physical symptoms, anxiety, and the actual amount of time she consciously suffered. As such, the first prong of the discretionary standard is satisfied. Therefore, this is not a case where the "circuit court fail[ed] to analyze the evidence or set forth the reasons supporting its decision, [such that] the reviewing court should give no deference to the circuit court's decision." Mgmt. Computer Servs., 206 Wis.2d at 191.

¶ 243. Next, we must determine whether the circuit court provided a reasonable explanation for its remittitur decision. McCleary, 49 Wis.2d at 277, 182 N.W.2d 512 (discretion "contemplates a process of reasoning"). As the passage above indicates, the circuit court reasoned that despite the serious nature of the progressive suffering the deceased experienced, the main limiting factor was the amount of time the deceased consciously suffered. The court noted that the deceased lost consciousness sometime after she entered the ambulance as she was being transported to Children's Hospital. This was roughly two days after she first began feeling ill. However, contrary to the assertion of the concurrence, this was not the only factor the court relied upon in ordering remittitur. Concurrence, ¶ 228. The court also explained that because the deceased was a child, it was difficult to determine the full extent of what she consciously experienced, as the record did not contain any verbalizations of her suffering.

¶ 244. Under the erroneous exercise of discretion standard, even if this court does not agree with the factors or bases identified by the circuit court as supporting its decision, we must nevertheless defer to the circuit court's judgment and uphold its determination if the bases for its decision are reasonable. Wester, 190 Wis.2d at 327, 527 N.W.2d 373. While the concurrence faults the circuit court for unduly emphasizing the time factor, "[g]iving consideration to various relevant factors . . . involve[s] a weighing and balancing operation, but the weight to be given to a particular factor in a particular case is for the trial court, not this court, to determine." Cunningham v. State, 76 Wis.2d 277, 282, 251 N.W.2d 65 (1977). As has been stated in the context of reviewing a circuit court's discretionary sentencing determination, "[t]he weight given to each . . . factor, however, is left to the trial court's broad discretion." State v. Thompson, 172 Wis.2d 257, 264, 493 N.W.2d 729 (Ct.App. 1992).

¶ 245. Under this deferential standard of review, the circuit court's explanation for its decision is not unreasonable. See Wester, 190 Wis.2d at 327, 527 N.W.2d 373. The lack of testimonial evidence from the victim as to her pain and suffering and the limited amount of time the evidence indicated she consciously suffered are certainly logical, relevant factors that legitimately bear upon the amount of damages the estate should reasonably recover. As such, the second requirement for a proper discretionary act is satisfied because the circuit court's conclusion is "based on a logical rationale." McCleary, 49 Wis.2d at 281.

¶ 246. Thus, the record clearly demonstrates that the circuit court 1) considered the relevant evidence and 2) provided a logical, rational basis for its decision. Therefore, the concurrence errs in asserting that it would be appropriate in this case to review the record de novo, and substitute our own judgment for that of the circuit court. See McCleary, 49 Wis.2d at 281, 182 N.W.2d 512 ("An appellate court should not supplant the predilections of a trial judge with its own."). As we have previously stated, if the record demonstrates that the circuit court considered the evidence and articulated a reasonable basis for its decision, this court "must not find an erroneous exercise of discretion." Mgmt. Computer Servs., 206 Wis.2d at 191.

¶ 247. Finally, this court has recognized that "[i]n applying the Powers rule, the [circuit] court must set the amount of damages at a figure which it considers to be the most reasonable in view of the evidence, and since reasonable men may differ, the trial court's determination will be upheld if it falls within a range of reasonableness." Lewandowski v. Preferred Risk Mut. Ins. Co., 33 Wis.2d 69, 78, 146 N.W.2d 505 (1966). Thus, even if this court is of the opinion that the jury's award of damages was not excessive, we must nonetheless defer to the circuit court's determination, so long as it properly exercised its discretion in rendering its decision. See Matosian v. Milwaukee Auto. Ins. Co., 257 Wis. 599, 603, 44 N.W.2d 555 (1950). Even viewing the evidence in the light most favorable to the plaintiff, the circuit court's decision to order remittitur of the estate's damages for pre-death pain and suffering from $550,000 to $100,000 is not unreasonable, given the record in this case and the circuit court's reasonable explanation.

¶ 248. In sum, the record here clearly indicates that the circuit court considered the appropriate evidence and articulated a logical, rational basis for its decision. As such, the concurrence misapplies the "erroneous exercise of discretion" standard of review. Rather than following this court's strong policy of deferring to the circuit court's proper discretionary determination, the concurrence would have this court substitute its own predilections for the judgment of the circuit court.

¶ 249. I am authorized to state that Justices DAVID T. PROSSER and DIANE S. SYKES join in this concurrence.

¶ 250. ANN WALSH BRADLEY, J. (concurring).

The constitutionality of Wis. Stat. § 895.04(4) is jeopardized by the extreme interpretation advanced by the majority. It is with good cause that no party or amici argued such an interpretation. No one argued it because it is clearly wrong. Moreover, the defense bar does not want to jeopardize the constitutionality of the caps.

¶ 251. Although I join the above concurrence as to the issues of statutory interpretation and remittitur, I write separately because I am not prepared to join its constitutional discussion. The concurrence correctly notes the impediment it faces in addressing the constitutional implications of the majority's position: the briefs and arguments in this case were framed to address a less radical approach. The concurrence offers a discussion of the constitutional implications of the majority's decisions and reviews authority from other jurisdictions. It recognizes that the discussion of constitutionality is being offered without the benefit of briefs. I prefer to wait until the arguments are fully developed and briefed before I address the constitutional questions. Accordingly, I respectfully concur.