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Schultz v. Natwick11/19/2002
REVIEW OF A DECISION OF THE COURT OF APPEALS 2001 WI App 281 Reported at: 249 Wis. 2d 317, 638 N.W.2d 319 (Published)
Oral Argument: September 11, 2002
REVIEW of a decision of the Court of Appeals. Affirmed.
. This is a review of a published court of appeals decision, Schultz v. Natwick, 2001 WI App 281, 249 Wis. 2d 317, 638 N.W.2d 319.
. The court of appeals reversed the judgment of the Circuit Court for Dunn County, Rod W. Smeltzer, Judge. The circuit court entered judgment for the plaintiffs. The circuit court concluded that the legislature's retroactive increase of the cap on damages for loss of society and companionship in wrongful death cases, from $150,000 to $500,000, was constitutional. The circuit court judgment preceded Neiman v. American National Property & Casualty Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160. In Neiman this court applied the balancing test set forth in Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), and declared the retroactive increase of the cap on these damages unconstitutional.
. The court of appeals reversed the judgment of the circuit court. Relying on Neiman, the court of appeals held that the $150,000 cap, not the $500,000 cap, applies in the present case, because the retroactive increase of the cap on damages recoverable for loss of society and companionship in wrongful death actions violates the due process rights of the defendants in the present case. We affirm the decision of the court of appeals.
. The issue presented is whether the retroactive increase of the cap for damages for loss of society and companionship in wrongful death actions enacted by 1997 Wis. Act 89 violates a tortfeasor's constitutional right to due process. More specifically, the issue presented is the applicability of the Neiman decision to the present case.
. We conclude, as did the court of appeals, that the Neiman decision governs this case. The retroactive increase of the cap on damages for the loss of society and companionship in wrongful death cases enacted by 1997 Wis. Act 89 is unconstitutional. It is unnecessary for courts to apply the Martin balancing test anew to the particular facts of every case challenging the constitutionality of the retroactive increase of the cap.
. The facts of this case are tragic. Lindsey Schultz died on December 1, 1995, at the age of thirteen, from complications arising out of an appendectomy performed by Dr. Roger Natwick, an employee or agent of Red Cedar Clinic. Lindsey's parents, Barbara and Roger Schultz, and her minor siblings, brought suit against defendants Dr. Natwick, Red Cedar Clinic, and their insurer, Physicians Insurance Company of Wisconsin (PIC). The Wisconsin Patients Compensation Fund (Fund) was joined as a defendant pursuant to Wis. Stat. § 655.27(5) (1995-96).
. The parties agree that the plaintiffs' cause of action for wrongful death accrued on December 1, 1995, the date of the alleged malpractice and the injury. The parties further stipulated that if the case were tried to a jury, the defendants would not contest liability and the plaintiffs would be awarded damages for loss of society and companionship of no less than the $500,000 cap.
. At the time of Lindsey Schultz's death, Wis. Stat. § 895.04(4) (1995-96) placed a cap on damages in wrongful death actions for loss of society and companionship at $150,000. On April 13, 1998, the legislature adopted 1997 Wis. Act 89 at the urging of Lindsey Schultz's mother and others to enable families to pursue fair compensation for their losses. The Schultz family was instrumental in attaining the passage of the new Act. Then-Governor Tommy T
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