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Ferdon v. Wisconsin Patients Compensation Fund7/14/2005
This is a review of a summary order of the court of appeals affirming a judgment of the circuit court for Brown County, Peter J. Naze, Judge. The judgment in this medical malpractice action was in favor the Wisconsin Patients Compensation Fund (Fund) and against Matthew Ferdon.
This medical malpractice action arose as a result of a doctor's negligence that injured Matthew Ferdon during birth. Despite surgeries, he has a partially paralyzed and deformed right arm.
A jury awarded Matthew Ferdon $700,000 in non-economic damages for injuries caused by medical malpractice and $403,000 for future medical expenses. The jury heard that Matthew Ferdon had a life expectancy of 69 years. Therefore, the jury's non-economic damage award reflects an award of slightly more than $10,000 a year as the reasonable amount necessary to compensate Matthew Ferdon for having to live every day of his life with a partially functioning, deformed right arm.
After the verdict the Fund moved to have the non-economic damages reduced pursuant to the limitation established in Wis. Stat. §§ 655.017 and 893.55(4)(d) (2001-02). The statutory limitation (sometimes called a cap) on the jury award means that Matthew Ferdon will have an award of approximately $5,900 a year as the reasonable amount necessary to compensate him for living with a partially functioning, deformed right arm.
The Fund also moved to have that portion of the award for future medical expenses exceeding $100,000 deposited into a state-administered fund pursuant to Wis. Stat. § 655.015.
The circuit court granted both of the Fund's motions. The court of appeals summarily affirmed the judgment of the circuit court, and this court granted review.
Three questions are presented in the instant case:
First, is the $350,000 statutory limitation on non-economic damages resulting from a medical malpractice injury in Wis. Stat. §§ 655.017 and 893.55(4)(d) constitutional?
Matthew Ferdon challenges the statutory limitation on non-economic damages in medical malpractice actions on several grounds. He asserts that the mandatory statutory limitation (1) violates the equal protection guarantees of the Wisconsin Constitution; (2) violates the right to a trial by jury as provided in Article I, Section 5 of the Wisconsin Constitution; (3) violates the right to a remedy as provided in Article I, Section 9 of the Wisconsin Constitution; (4) violates the due process clause of the Wisconsin Constitution; and (5) violates the separation of powers doctrine by infringing remittitur, a core judicial power, contrary to Article VII, Section 2 of the Wisconsin Constitution. The circuit court held the statutory limitation was constitutional; the court of appeals agreed.
We hold that the $350,000 cap (adjusted for inflation) on non-economic medical malpractice damages set forth in Wis. Stat. §§ 655.017 and 893.55(4)(d) violates the equal protection guarantees of the Wisconsin Constitution. We therefore need not, and do not, address Matthew Ferdon's other constitutional challenges to the cap. We remand the cause to the circuit court for further proceedings not inconsistent with this opinion.
Second, if the statutory limitation is unconstitutional, is the Fund liable for payment of the amount of the jury award in excess of the statutory limitation? The Fund argues it need not pay the excess amount. Matthew Ferdon does not brief this question. The circuit court and court of appeals did not answer this question. We therefore remand this question to the circuit court so that the parties may be heard on it.
Third, is Wis. Stat. § 655.015, which req
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