Ascaris Mayo and Antonio Mayo, Plaintiffs-Respondents-Cross-Appellants,
Wisconsin Injured Patients and Families Compensation Fund, Defendant-Appellant-Cross-Respondent Petitioner, United Healthcare Insurance Company and Wisconsin State Department of Health Services, Involuntary-Plaintiffs, Proassurance Wisconsin Insurance Company, Wyatt Jaffe, MD, Donald C. Gibson, Infinity Healthcare, Inc. and Medical College of Wisconsin Affiliated Hospitals, Inc., Defendants.
SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 19, 2018
Circuit Court Milwaukee County, L.C. No. 2012CV6272 Jeffrey
A. Conen Judge
OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis.2d
566, 901 N.W.2d 782');">901 N.W.2d 782 PDC No: 2017 WI.App. 52
the defendant-appellant-cross-respondent-petitioner, there
were briefs filed by Kevin M. St. John, Roisin H. Bell, John
N. Giftos, and Bell Giftos St. John LLC, Madison. There was
an oral argument by Kevin M. St. John.
the plaintiffs-respondents-cross-appellants, there was a
brief filed by Susan R. Tyndall, Daniel A. Rottier, James M.
Fergal, and Habush Habush & Rottier, S.C., Madison. There
was an oral argument by Daniel A. Rottier.
amicus curiae brief was filed on behalf of the Wisconsin
Academy of Family Physicians, the Wisconsin Academy of
Ophthalmology, Inc., the Wisconsin Chapter of the American
College of Emergency Physicians, Inc., the Wisconsin
Orthopaedic Society, the Wisconsin Psychiatric Association,
Inc., the Wisconsin Radiological Society, Inc., the Wisconsin
Society of Anesthesiologists, Inc., and the Wisconsin Society
of Plastic Surgeons, Inc. by Guy DuBeau and Axley Brynelson,
amicus curiae brief was filed on behalf of the State of
Wisconsin by Misha Tseytlin, solicitor general, Brad D.
Schimel, attorney general, and Amy C. Miller, assistant
solicitor general. There was an oral argument by Misha
Tseytlin, solicitor general.
amicus curiae brief was filed on behalf of Wisconsin Hospital
Association by Sara J. MacCarthy, Timothy W. Feeley, and
Hall, Render, Killian, Heath & Lyman, P.C., Milwaukee.
amicus curiae brief was filed on behalf of Wisconsin Medical
Society and American Medical Association Litigation Center by
Anne Berleman Kearney and Appellate Consulting Group,
amicus curiae brief was filed on behalf of The Physician
Insurers Association of America by Samuel J. Leib, Brent A.
Simerson, Brenden M. Leib, and Leib Knott Gaynor LLC,
amicus curiae brief was filed on behalf of Wisconsin
Manufacturers and Commerce by Lucas T. Vebber, Corydon J.
Fish, and Wisconsin Manufacturers and Commerce, Madison.
amicus curiae brief was filed on behalf of the Wisconsin
Association for Justice by William C. Gleisner, III and Law
Offices of William Gleisner, Brookfield, with whom on the
brief were J. Michael End and End, Hierseman & Grain,
amicus curiae brief was filed on behalf of Wisconsin Defense
Counsel by Justin F. Wallace and Nash, Spindler, Grimstad,
& McCracken, LLP, Manitowoc, with whom on the brief were
Monte E. Weiss, Charles W. Kramer, and Weiss Law Office SC,
amicus curiae brief was filed on behalf of the American Tort
Reform Association, the Wisconsin Civil Justice Council, the
National Federation of Independent Business, the Chamber of
Commerce of the United States, and the Wisconsin Insurance
Alliance by James A. Friedman, Bryan J. Cahill, and Godfrey
& Kahn, S.C., Madison.
PATIENCE DRAKE ROGGENSACK, C.J.
Our review considers whether the legislatively-enacted cap of
$750, 000 (the cap) on noneconomic damages for victims of
medical malpractice that is set out in Wis.Stat. §
893.55 (2015-16)  is unconstitutional facially or as
applied, based on equal protection and due process grounds.
In reliance on Ferdon ex rel. Petrucelli v. Wis. Patients
Comp. Fund, 2005 WI 125, 284 Wis.2d 573, 701 N.W.2d 440');">701 N.W.2d 440,
the court of appeals concluded that the cap was facially
unconstitutional. The court of appeals did not address
whether § 893.55 was unconstitutional as applied to
Ascaris and Antonio Mayo (the Mayos). However, the circuit
court had concluded that the $750, 000 cap on noneconomic
damages was unconstitutional as applied to the
We conclude that rational basis is the proper standard by
which to judge the constitutionality of Wis.Stat. §
893.55; that § 893.55 is facially constitutional and
constitutional as applied to the Mayos; and that
Ferdon erroneously invaded the province of the
legislature and applied an erroneous standard of review.
Accordingly, we reverse the court of appeals' decision,
overrule Ferdon, and conclude that the $750, 000 cap
on noneconomic damages in medical malpractice judgments and
settlements is constitutional both facially and as applied to
Therefore, we reverse the court of appeals and remand to the
circuit court to impose the $750, 000 cap on noneconomic
Guaranteed Payment System
In 1975, as a result of what was deemed to be a "medical
malpractice crisis," the legislature established a
comprehensive system of guaranteed payments and controlled
liability. The Wisconsin Injured Patients and Families
Compensation Fund (the Fund) was created at that time as part
of the legislature's comprehensive system. Wis.
Patients Comp. Fund v. Wis. Health Care Liab. Ins. Plan,
200 Wis.2d 599, 607, 547 N.W.2d 578 (1996) (hereinafter
WHCLIP). In addition to guaranteeing payment and
controlling liability, the legislature established required
procedures for processing and paying claims that alleged
medical malpractice. § 1, ch. 37, Laws of 1975.
Chapter 655 "provide[s] the exclusive procedure for a
person to pursue a malpractice claim against a health care
provider." Rouse v. Theda Clark Med. Ctr.,
Inc., 2007 WI 87, ¶35, 302 Wis.2d 358, 735 N.W.2d
30. Under Wisconsin's comprehensive system, each health
care provider must maintain liability coverage of at least $1
million per claim and $3 million for all claims in a given
policy year, Wis.Stat. § 655.23(4) (b)2, or qualify as a
self-insurer, § 655.23(3) (a) .In addition to maintaining
liability insurance, health care providers are required to
participate in the Fund by paying annual assessments.
Wis.Stat. § 655.27(3)(a).
The combination of required insurance and required
assessments by the Fund, which health care providers must
pay, creates a mechanism for guaranteed payment to those who
are injured by medical malpractice. This is so because the
Fund pays medical malpractice claims in excess of the health
care provider's insurance coverage amount. Wis.Stat.
§ 655.27(1) . "In other words, the Fund is liable
for payments 'after a health care provider's
statutorily mandated liability coverage limits are
exceeded.'" Wis. Med. Soc'y v. Morgan,
2010 WI 94, ¶12, 328 Wis.2d 469, 787 N.W.2d 22 (quoting
WHCLIP, 200 Wis.2d at 613).
In regard to those injured by medical malpractice, the Fund
guarantees payment of 100 percent of all settlements and
judgments for economic damages arising from medical
malpractice. However, payments by the Fund for noneconomic
damages are limited to $750, 000 for each
claim. Wis.Stat. § 893.55(4) (d) 1. So long
as health care providers maintain the required insurance and
annually contribute to the Fund, they are not personally
liable for damages arising from medical malpractice.
Wis.Stat. § 655.23 (5) .
From the time the Fund was created, July 1, 1975, until March
of 2005,  the Fund paid approximately $586, 300, 000
in claims. Morgan, 328 Wis.2d 469, ¶21. By
December 31, 2007, the total claim payments had increased to
$666, 100, 000. Id. Through December 31, 2017, the
fund has paid approximately $866, 100, 000 in claims. 2017
Functional and Progress Report, Wis. Office of the Comm'r
of Ins. (Feb. 23, 2018), https://
pdf. The number of Fund claims begun in any given year
fluctuates. In 2013-14, there were 83 pending potential
claims against the Fund, followed just two years later in
2015-16 with 40 potential claims, and the most recent report
for 2016-17 shows 55 potential claims against the Fund.
When the Fund was created in 1975, there was no cap on
noneconomic damages. It was not until 1986 that the
legislature capped noneconomic damages. The 1986 cap was $1
million. 1985 Wis. Act 340, §§ 30, 72. The initial
cap expired on January 1, 1991. Id.
After the expiration of the 1986 cap on noneconomic damages,
the cost of insurance for health care providers rose, as did
health care costs. See Maurin v. Hall, 2004 WI 100,
¶65 n.7, 274 Wis.2d 28, 682 N.W.2d 866, overruled on
other grounds by Bartholomew v. Wis. Patients Comp.
Fund, 2006 WI 91, 293 Wis.2d 38, 717 N.W.2d 216. In
response, the legislature again enacted a cap on noneconomic
damages, this time setting the limit at $350, 000. 1995 Wis.
Act 10, §§ 5, 9.
The $350, 000 cap remained in place until we concluded that
it was unconstitutional in Ferdon. Following
Ferdon, the legislature acted to impose the $750,
000 cap on noneconomic damages that is before us. 2005 Wis.
Act 183, §§1, 7. For all other damages, payment is
guaranteed to the injured party for 100 percent of a judgment
In creating the $750, 000 cap for noneconomic damages, the
legislature undertook substantial investigative efforts to
assure that any future legislation in regard to a cap would
be constitutionally appropriate. The assembly established a
"Medical Malpractice Task Force" with the aim of
implementing revisions to the law in response to the
court's Ferdon decision. The task force found
that noneconomic damages are an aspect of recovery that often
is based on emotion and not on any predictable standard. The
task force said that" [a] reasonable cap on noneconomic
damages serves as a rational balance [in] the
Legislature's plan to ensure that successful malpractice
plaintiffs are able to recover appropriate damages."
Further, "[m]edical liability reform is part of a broad
legislative strategy designed to keep health care affordable
and available in Wisconsin." "[C]apping noneconomic
damages for unquantifiable harms while continuing to allow
unlimited recovery for economic damages is crucial to this
Sixty-two members of a bipartisan committee of the
legislature submitted new legislation that would increase the
cap to $750, 000. See 2005 AB 1073, §§ 1,
7. Hearings then were held, and testimony was provided both
for and against the $750, 000 cap.
The legislature carefully set out its objectives, stating
that "[t]he objective of the treatment of this section
is to ensure affordable and accessible health care for all of
the citizens of Wisconsin while providing adequate
compensation to the victims of medical malpractice."
2005 Wis. Act 183, § 3. Further, the legislature
codified its reasoning by which "[e]stablishing a
limitation on noneconomic damage awards accomplishes the
1. Protecting access to health care services across the state
and across medical specialties by limiting the disincentives
for physicians to practice medicine in Wisconsin, such as the
unavailability of professional liability insurance coverage,
the high cost of insurance premiums, large fund assessments,
and unpredictable or large noneconomic damage awards, as
recognized by a 2003 U.S. congress joint economic committee
report, a 2003 federal department of health and human
services study, and a 2004 office of the commissioner of
2. Helping contain health care costs by limiting the
incentive to practice defensive medicine, which increases the
cost of patient care, as recognized by a 2002 federal
department of health and human services study, a 2003 U.S.
congress joint economic committee report, a 2003 federal
government accounting office study, and a 2005 office of the
commissioner of insurance report.
3. Helping contain health care costs by providing more
predictability in noneconomic damage awards, allowing
insurers to set insurance premiums that better reflect such
insurers' financial risk, as recognized by a 2003 federal
department of health and human services study.
4.Helping contain health care costs by providing more
predictability in noneconomic damage awards in order to
protect the financial integrity of the fund and allow the
fund's board of governors to approve reasonable
assessments for health care providers, as recognized by a
2005 legislative fiscal bureau memo, a 2001 legislative audit
bureau report, and a 2005 office of commissioner of insurance
Wis. Stat. § 893.55(1)(d).
Act 183 also said that "the limitation of $750, 000
represents an appropriate balance between providing
reasonable compensation for noneconomic damages associated
with medical malpractice and ensuring affordable and
accessible health care," and that "[t]his finding
is based on actuarial studies provided to the legislature,
the experiences of other states with and without limitations
on noneconomic damages associated with medical malpractice,
the testimony of experts, and other documentary evidence
presented to the legislature." 2005 Wis. Act 183, §
3. Finally, the legislature noted that "the number
chosen is neither too high nor too low to accomplish the
goals of affordable and accessible health care, is a
reasonable and rational response to the current medical
liability situation, and is reasonably and rationally
supported by the legislative record." Id.
The $750, 000 cap remained in effect until the court of
appeals held it unconstitutional in this action. B. The Mayos
This action arose after Ascaris Mayo made two trips to two
emergency rooms in May 2011. On the first occasion, she
visited the emergency room at Columbia St. Mary's
Hospital in Milwaukee after experiencing abdominal pain and a
high fever. She was seen by a physician and a physician's
assistant and was advised to follow up with her gynecologist
because she had a history of uterine fibroids. The next day,
Ascaris Mayo went to a different emergency room where she was
diagnosed with sepsis that was caused by an untreated
infection. As the result of sepsis, many of her organs failed
and all four of her limbs developed dry gangrene,
In June of 2012, the Mayos sued in Milwaukee County Circuit
Court alleging medical malpractice and failure to provide
proper information. Their claims were tried to a jury.
Neither the physician nor the physician's assistant who
saw Ascaris Mayo at Columbia St. Mary's emergency room
was found to have been negligent. The jury did find, however,
that neither provider gave Ascaris Mayo adequate information
regarding alternate diagnoses and options for treatment of
the alternate diagnoses. In addition to economic damages
totaling $8, 842, 096,  the jury awarded noneconomic damages
of $15, 000, 000 to Ascaris Mayo and $1, 500, 000 to her
After the verdict was issued, the Fund moved to reduce the
jury's noneconomic damage award to $750, 000 as required
by the cap. The Mayos also made motions after verdict, moving
for entry of judgment on the verdict, as well as for
declaratory judgment that Wis.Stat. §§ 655.017 and
893.55(4) are unconstitutional facially and as applied to the
The circuit court held that the cap was not facially
unconstitutional, but concluded that it was unconstitutional
as applied to the Mayos on equal protection and due process
grounds. In reaching its conclusion, the circuit court relied
on the court's decision in Ferdon.
The court of appeals, in a published opinion, affirmed the
jury's noneconomic damage award, but on a different
basis. The court of appeals "conclude[d] that the
statutory cap on noneconomic damages is unconstitutional on
its face because it violates the same principles our supreme
court articulated in [Ferdon], by imposing an unfair
and illogical burden only on catastrophically injured
patients, thus denying them the equal protection of the
laws." Mayo v. Wis. Injured Patients and Families
Comp. Fund, 2017 WI.App. 52, ¶1, 7 Wis.2d 566');">377 Wis.2d 566,
901 N.W.2d 782');">901 N.W.2d 782. For the reasons stated below, we reverse the
court of appeals decision, and conclude that the $750, 000
cap on noneconomic damages in medical malpractice judgments
and settlements is constitutional both facially and as
applied to the Mayos.
The Mayos challenge the facial constitutionality of the cap
and as the cap is applied to them. They claim that the
classification for those who suffer noneconomic damages in
excess of the cap violates their right to due process and
equal protection. The Mayos also argue that the cap is
unconstitutional as applied to them because of the dramatic
decrease to their noneconomic damages award. The Fund,
however, contends that under a rational basis review, the
$750, 000 cap survives constitutional scrutiny.
Standard of Review
A facial challenge to the constitutionality of a statute
presents a question of law that we review independently,
while benefitting from the court of appeals' and the
circuit court's discussions. Milwaukee Branch of
NAACP v. Walker, 2014 WI 98, ¶21, 357 Wis.2d 469,
851 N.W.2d 262. An as-applied constitutional challenge also
is subject to our independent review. Society Ins. v.
LIRC, 2010 WI 68, ¶13, 326 Wis.2d 444, 786 N.W.2d
385. Although we uphold historical factual findings of the
circuit court unless they are clearly erroneous,
id., there is no contest about the relevant facts in
the case before us.
General Principles of Constitutional Review
There are two general types of constitutional challenges to
statutes: facial and as-applied. League of Women Voters
of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97,
¶13, 357 Wis.2d 360, 851 N.W.2d 302. We previously have
A party may challenge a law ... as being unconstitutional on
its face. Under such a challenge, the challenger must show
that the law cannot be enforced "under any
circumstances." ... In contrast, in an as-applied
challenge, we assess the merits of the challenge by
considering the facts of the particular case in front of us,
"not hypothetical facts in other situations." Under
such a challenge, the challenger must show that his or her
constitutional rights were actually violated.
Id. (quoting State v. Wood, 2010 WI 17,
¶13, 323 Wis.2d 321, 780 N.W.2d 63) .
In either type of constitutional challenge, we presume that
the statute is constitutional. League of Women
Voters, 357 Wis.2d 360, ¶16; State v.
McKellips, 2016 WI 51, ¶29, 369 Wis.2d 437, 881
N.W.2d 258; Madison Metro. Sewerage Dist. v. Stein,
47 Wis.2d 349, 357, 177 N.W.2d 131 (1970); Town of Beloit
v. City of Beloit, 37 Wis.2d 637, 643, 155 N.W.2d 633
Our presumption of constitutionality is based on respect for
a co-equal branch of government and its legislative acts.
Dane Cty. Pep' t of Human Servs. v. Ponn P.,
2005 WI 32, ¶16, 279 Wis.2d 169, 694 N.W.2d 344. If any
doubt persists about whether a statute is constitutional, we
resolve doubt in favor of concluding that the statute is
constitutional. McKellips, 369 Wis.2d 437, ¶29;
Aicher v. Wis. Patients Comp. Fund, 2000 WI 98,
¶18, 237 Wis.2d 99, 613 N.W.2d 849. In our analysis, we
do not reweigh the policy choices of the legislature.
A party challenging the constitutionality of a statute bears
a very heavy burden in overcoming the presumption of
constitutionality. League of Women Voters, 357
Wis.2d 360, ¶17. In order to be successful, the
challenger must prove that the statute is unconstitutional
"beyond a reasonable doubt." Id. In the
context of a challenge to a statute's constitutionality,
"beyond a reasonable doubt" "expresses the
'force or conviction with which a court must conclude, as
a matter of law, that a statute is unconstitutional before
the statute . . . can be set aside.'" Id.
(quoting Ponn P., 279 Wis.2d 169, ¶18) .
Generally, Wisconsin courts have employed two levels of
scrutiny when addressing equal protection challenges.
Thorp v. Town of Lebanon, 2000 WI 60, ¶38, 235
Wis.2d 610, 612 N.W.2d 59. Strict scrutiny is applied to
statutes that restrict a fundamental right. League of
Women Voters, 357 Wis.2d 360, ¶¶139-40
(concluding that the right to vote is fundamental). Strict
scrutiny is also applied to the regulation of protected
classes. Thorp, 235 Wis.2d 610, ¶38. When
strict scrutiny is applied, the statute must serve a
compelling state interest; the statute must be necessary to
serving that interest; and the statute must be narrowly
tailored toward furthering that compelling state interest.
Id. There has been no contention that the Mayos have
a fundamental right to payment of all damages awarded by the
jury nor that the $750, 000 cap on noneconomic damages
discriminates against a suspect class. Therefore, strict
scrutiny does not apply. Bostco LLC v. Milw. Metro.
Sewerage Dist., 2013 WI 78, ¶76, 350 Wis.2d 554,
835 N.W.2d 160.
The more common level of statutory scrutiny is rational basis
scrutiny, where statutes are upheld if there is any rational
basis for the legislation. Id. "The basic test
is not whether some inequality results from the
classification, but whether there exists any reasonable basis
to justify the classification." Id. (citing
Sambs v. City of Brookfield, 97 Wis.2d 356, 293
N.W.2d 504 (1980)). In an as-applied challenge to the damages
limited by Wis.Stat. § 893.80(3), we concluded that not
all disparities are sufficient to sustain the contention of
unconstitutionally disparate treatment. Bostco LLC,
350 Wis.2d 554, ¶79.
In Ferdon, the majority opinion spent many
paragraphs discussing rational basis and concluding that
strict scrutiny was not appropriate in assessing the then
$350, 000 cap on noneconomic damages. Ferdon, 284
Wis.2d 573, ¶¶59-96. Its discussion recited the
usual rules applicable to a rational basis review. However,
after its thorough discussion, the court threw all of the
principles of rational basis aside. It created an
intermediate level of review that it called "rational
basis with teeth, or meaningful rational basis."
The court gave this new level of scrutiny no standards by
which to determine whether it should be applied; but instead,
overturned the then existing cap on noneconomic damages
through application of the majority's policy choice for
Wisconsin. For example, the court opined that" [a] cap
on noneconomic damages diminishes tort liability for health
care providers and diminishes the deterrent effect of tort
law." Id., ¶89. In concluding that the
legislature's policy choice was constitutionally flawed,
the majority opinion said, "[t]he legislature enjoys
wide latitude in economic regulation. But when the
legislature shifts the economic burden of medical malpractice
from insurance companies and negligent health care providers
to a small group of vulnerable, injured patients, the
legislative action does not appear rational."
Id., ¶101. The majority did not consider that
part of the legislative plan that guaranteed 100 percent
payment of all other damages, a benefit that no other tort
carries. Accordingly, the test for rational basis with teeth
is whether the petitioner's claim is in line with the
Ferdon majority's policy choice for Wisconsin.
We hereby overrule Ferdon. Rational basis with teeth
has no standards for application, usurps the policy forming
role of the legislature and creates uncertainty under the
law. Ferdon also creates new doctrine when it holds
that" [a] statute may be constitutionally valid when
enacted but may become constitutionally invalid because of
changes in the conditions to which the statute applies. A
past crisis does not forever render a law valid."
Id., ¶114. There is no law to support this
extraordinary declaration and we overrule it as well as
"rational basis with teeth." C. Facial Challenge
When a party challenges a law as being unconstitutional on
its face, he or she must show that the law cannot be enforced
"under any circumstances." Wood, 323
Wis.2d 321, ¶13. A challenger must meet the highest
level of proof, beyond a reasonable doubt, if he or she ...