COURT OF APPEALS DECISION DATED AND FILED May 18, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Anderson, Reilly, and Lundsten, JJ.
¶1 PER CURIAM. Shelbey Bomkamp, a minor, and her parents, Margaret and Douglas Bomkamp, settled their medical malpractice lawsuit against pediatric surgeon Dr. Leonard Go. The circuit court dismissed the Bomkamps’ challenges to the constitutionality of Wis. Stat. § 655.015 (2009-10),[1] which requires the settlement to be paid into a future medical expense account administered by the Wisconsin Injured Patients and Families Compensation Fund. For the following reasons, we affirm the order of the circuit court.
¶2 Six-year-old Shelbey underwent an elective splenectomy. For the first time in his career, Dr. Go used a surgical device called a “morcellator” during the procedure. He never had seen a morcellator used or received any training or instruction in its use. During Shelbey’s surgery, the morcellator damaged major blood vessels, leading to massive blood loss, cardiac arrest and brain anoxia. Shelbey suffered profound and permanent brain damage.
¶3 The parties settled the case for $17.3 million. Pursuant to the minor settlement and Wis. Stat. § 655.015, $8,204,327 was paid into a future medical expense account administered by the Fund. As medical expenses arise, the Bomkamps must submit them to the Fund for reimbursement. The Bomkamps contended the statute violates their rights to equal protection, due process and to a jury trial, and constitutes an uncompensated taking of property. The trial court dismissed the Bomkamps’ challenges to the statute’s constitutionality. The Bomkamps appeal, raising the same issues.
¶4 Whether a statute is constitutional presents a question of
law that we review de novo. Dane
County DHS v. Ponn P., 2005 WI 32, ¶14, 279
¶5 The Bomkamps first argue that Wis. Stat. § 655.015 violates their right to equal protection and due process because the Fund selectively applies and enforces the statute’s provisions. They contend that discrimination occurs as a result of a negotiated settlement when a plaintiff accepts a lesser amount from the Fund so as to receive a lump-sum payment up front.
¶6 In assessing an equal protection challenge, the basic
question is whether the statute creates a classification that is irrational or
arbitrary, or one that is rationally related to a valid legislative objective. State v. Joseph E. G., 2001 WI App
29, ¶8, 240 Wis. 2d 481, 623 N.W.2d 137 (Ct. App. 2000). Similarly, “[d]ue process requires that the
means chosen by the legislature bear a reasonable and rational relationship to
the purpose or object of the enactment; if it does, and the legislative purpose
is a proper one, the exercise of the police power is valid.” State v. McManus, 152
¶7 First,
we note that the Bomkamps’ anecdotal “evidence” and unsupported claim that the
Fund engages in this tactic to force lower settlements fall well short of
proving discrimination that is “intentional, systematic and arbitrary.”
¶8 More importantly, even if we assume for argument’s sake that the Fund does discriminate in the enforcement of Wis. Stat. § 655.015, the Bomkamps offer no legal support for their claim that the remedy for this selective enforcement is to strike down the statute. Indeed, the statute does not provide for that practice and, therefore, there is plainly nothing unconstitutional about the statute in this respect.
¶9 The Bomkamps also contend the statute violates their right to equal protection and due process because it draws arbitrary distinctions between classes of victims: those with future medical expenses above $100,000 and those with expenses below that amount; those whose money in the account is sufficient and those whose is insufficient;[2] those whose needed medical care is on the list identified in the Wisconsin Administrative Code and those whose is not;[3] and those who die before the future medical expense account is exhausted and those who survive long enough to deplete it.
¶10 These
constitutionality arguments fail because we can conceive of facts on which the
legislation reasonably could be based.
¶11 The
Bomkamps argue that an irrevocable trust or a guardianship would serve the same
purpose as a Fund-administered account while allowing medical malpractice
victims freer and less burdensome access to their money. As long as the chosen classifying scheme
rationally advances reasonable legislative objectives, however, we must
disregard the existence of other, perhaps preferable, methods. Schweiker v. Wilson, 450
¶12 Significantly,
our supreme court already has upheld Wis.
Stat. § 655.015 against equal protection attacks.
¶13 Due
process and equal protection analyses are largely the same. State v. Jorgensen, 2003 WI 105,
¶32, 264
¶14 The Bomkamps next assert that the statute forces claimants like Shelbey to prove their damages twice, once to a jury and a second time to the Fund when they submit expense payment claims. They contend that having to tender those claims to the Fund violates Shelbey’s right to a jury trial on that second “proof” of damages. We disagree.
¶15 The legislature routinely enacts statutes of limitations or places limits on monetary awards. Wisconsin Stat. § 655.015 does not undercut the jury’s ability to determine a damages award; it simply creates a mechanism for how the award will be paid out. The Fund’s oversight of the account is an appropriate exercise of the legislature’s judgment of how best to disburse payments for future medical expenses. Cf. Maurin v. Hall, 2004 WI 100, ¶¶99-100, 274 Wis. 2d 28, 682 N.W.2d 866 (holding that, because the jury still determines liability and damages, the legislature’s limiting of wrongful death noneconomic damages arising out of medical malpractice did not usurp on the jury’s role in assessing them), overruled on other grounds, Bartholomew v. Wisconsin Patients Comp. Fund, 2006 WI 91, ¶¶127-30, 293 Wis. 2d 38, 717 N.W.2d 216. The Bomkamps’ concern seems to be that the Fund’s private contractor is too rigid or sparing with reimbursements. The statute does not require it to be implemented in that fashion, however.
¶16 The Bomkamps’ final argument is that the statute constitutes a taking of Shelbey’s property, contrary to Wis. Const. art. I, § 13, which forbids taking a person’s property “for public use without just compensation therefor.” They contend that the Fund “takes” her future medical expense award and puts it in an account and then “takes” any balance remaining in account upon her death. The Bomkamps do not assert that the Fund has refused to pay claims from Shelbey’s account for validly incurred medical expenses.
¶17 Restricting
Shelbey’s future medical expense award to an account for disbursement as needed
for appropriate expenditures does not deprive her of “all, or substantially
all, of the beneficial use of [her] property.” See Howell
Plaza, Inc. v.
¶18 To the
extent that the Bomkamps challenge the “taking” of the account balance if
Shelbey dies, it is the administrative rule implementing the statute, not the
statute itself, that so provides. See Wis.
Admin. Code § Ins
17.26(4)(f). A challenge in that regard
must follow the procedure set forth in
Wis. Stat. § 227.40. See
Ferdon
ex rel. Petrucelli, 284
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1]
If a settlement or judgment under this chapter resulting from an act or omission that occurred on or after May 25, 1995, provides for future medical expense payments in excess of $100,000, that portion of future medical expense payments in excess of an amount equal to $100,000 plus an amount sufficient to pay the costs of collection attributable to the future medical expense payments, including attorney fees reduced to present value, shall be paid into the fund. The commissioner [of insurance] shall develop by rule a system for managing and disbursing those moneys through payments for these expenses, which shall include a provision for the creation of a separate accounting for each claimant's payments and for crediting each claimant’s account with a proportionate share of any interest earned by the fund, based on that account’s proportionate share of the fund. The commissioner shall promulgate a rule specifying the criteria that shall be used to determine the medical expenses related to the settlement or judgment, taking into consideration developments in the provision of health care. The payments shall be made under the system until either the account is exhausted or the patient dies.
All references to the Wisconsin Statutes are to the 2009-10 version unless noted.
[2] This distinction is not created by the statute and, therefore, does not even arguably provide a basis for declaring the statute unconstitutional.
[3] This argument presents a challenge to an administrative rule under Wis. Stat. § 227.40, not to the constitutionality of Wis. Stat. § 655.015. Thus, we need not even address this argument because it has not been pursued by the proper procedure.