PUBLISHED OPINION
Case No.: 95-0453
††Petition for Review Denied
Complete Title
of Case:
ROGER LUND and
DONNA J. STAFSHOLT,
††Plaintiffs-Appellants,
v.
RICHARD H. KOKEMOORE, M.D.,
PHYSICIANS INSURANCE COMPANY
OF WISCONSIN, INC. and
WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants-Respondents,
EMPLOYERS INSURANCE OF
WAUSAU, A MUTUAL COMPANY,
Subrogated Party.
Submitted on Briefs: June 12, 1995
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: July 5, 1995
Opinion Filed: July
5, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Eau Claire
(If "Special", JUDGE: Benjamin D. Proctor
so indicate)
JUDGES: Cane, P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the plaintiffs-appellants the cause was submitted on the briefs of John L.
Cates and John C. Carlson of Lawton & Cates of
Madison.
Respondent
ATTORNEYSFor
the defendants-respondents the cause was submitted on the brief of James M.
Fergel and Linda Vogt Meagher of Schelling & Doyle, S.C.
of Brookfield.
|
COURT OF APPEALS DECISION DATED AND RELEASED JULY 5, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0453
STATE
OF WISCONSIN IN COURT OF
APPEALS
ROGER LUND and
DONNA J. STAFSHOLT,
Plaintiffs-Appellants,
v.
RICHARD H. KOKEMOOR,
M.D.,
PHYSICIANS INSURANCE
COMPANY
OF WISCONSIN, INC. and
WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants-Respondents,
EMPLOYERS INSURANCE OF
WAUSAU, A MUTUAL COMPANY,
Subrogated Party.
APPEAL from an order of
the circuit court for Eau Claire County:
BENJAMIN D. PROCTOR, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Roger Lund and Donna
Stafsholt appeal an interlocutory order dismissing their demand for punitive
damages in their medical malpractice action against Richard Kokemoor, M.D., and
his insurers. Lund and Stafsholt
contend that under § 893.55(5), Stats.,
punitive damages are recoverable in medical malpractice actions as "[o]ther
economic injuries and damages."
Accordingly, they argue that the trial court erred by dismissing their
demand for punitive damages. Because we
conclude that the legislature did not include punitive damages for medical
malpractice actions, the order is affirmed.
In March 1994, Lund and
Stafsholt (plaintiffs) filed a medical malpractice action against Kokemoor, a
neurosurgeon, for injuries they allegedly sustained following surgical
procedures performed by Kokemoor. The
plaintiffs' complaint alleged a cause of action for negligence and sought
punitive damages as a result of the "outrageous, callous and
reckless" nature of Kokemoor's conduct.
The Wisconsin Patients Compensation Fund (Compensation Fund)
subsequently moved for partial summary judgment, seeking dismissal of Lund and
Stafsholt's punitive damage claim.
After
considering the parties' respective arguments, the trial court concluded that
ch. 655 and § 893.55(5), Stats.,
which govern medical malpractice actions, specifically delineate the damages a
party may recover in a medical malpractice action. Because the statutes did not provide for the recovery of punitive
damages in actions, the trial court concluded that punitive damages were
precluded in medical malpractice actions and granted Compensation Fund's motion
for partial summary judgment. This
court subsequently granted discretionary review of the plaintiffs' petition for
review of the trial court's interlocutory order.
The sole issue raised in
this appeal is whether ch. 655 and § 893.55(5), Stats., permit the recovery of punitive damages in medical
malpractice actions.[1] This issue raises a question of statutory
interpretation that we review without deference to the trial court. State v. Eichman, 155 Wis.2d
552, 560, 456 N.W.2d 143, 146 (1990).
When interpreting a statute, our primary objective is to ascertain and
give effect to the intent of the legislature.
Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537-38,
345 N.W.2d 389, 394 (1984). To
determine the legislature's intent, we first look to the language of the
statute itself. Id. at
538, 345 N.W.2d at 394.
Section 893.55(5), Stats., provides:
Every award of damages under ch. 655
shall specify the sum of money, if any, awarded for each of the following for
each claimant for the period from the date of injury to the date of award and
for the period after the date of award, without regard to the limit under sub.
(4)(d):
(a) Pain, suffering and noneconomic
effects of disability.
(b)
Loss of consortium, society and companionship or loss of love and
affection.
(c)
Loss of earnings or earning capacity.
(d)
Each element of medical expenses.
(e) Other economic injuries and damages.
The
plaintiffs argue that subsec. (e), which provides for recovery of "[o]ther
economic injuries and damages[,]" authorizes the recovery of punitive
damages in medical malpractice actions.
The plaintiffs contend that the term "damages," as used in subsec.
(e), is sufficiently broad to encompass punitive damages. Further, they argue that under the rules of
statutory construction, qualifying words are to be limited to the word that the
qualifier immediately precedes. Vandervelde
v. Green Lake, 72 Wis.2d 210, 215-16, 240 N.W.2d 399, 402 (1976). Applying this rule, the plaintiffs claim
that the qualifying word "economic" in subsec. (e) should be read as
applying exclusively to the word "injuries," thus permitting the
recovery of "damages" regardless of whether they are economic.
The Compensation Fund,
however, argues that the word "economic" is an adjective that
modifies both the word "injuries" and the word
"damages." Citing the
grammatical rule of ellipsis, the Compensation Fund contends that because it is
apparent from the statutory language that the word "economic"
modifies both "injuries" and "damages," the legislature
could avoid unnecessary repetition by inserting the word "economic"
once in the clause. Thus, it contends
that § 893.55(5)(e), Stats.,
should be read as permitting the recovery of "[o]ther economic injuries
and [economic] damages." Economic
damages are compensatory in nature. See
1 The Law of Damages in Wisconsin
§ 1.5 (1994) ("compensatory damages" include all recoverable damages
(beyond nominal damages) other than punitive or exemplary damages). Accordingly, because punitive damages are
not compensatory, the Compensation Fund claims that punitives are not
recoverable under the statute.
Based on the respective
arguments advanced by the parties in this action, we conclude that § 893.55(5),
Stats., is reasonably susceptible
to more than one interpretation. We
therefore conclude that the statutory language is ambiguous. When a statute is ambiguous or unclear, we
may look to the statute's scope, history, context, subject matter and object to
determine the legislature's intent. Ball,
117 Wis.2d at 538, 345 N.W.2d at 394.
Our review of these extrinsic aids leads us to conclude that the
legislature intended subsec. (e) to be read as limiting the recovery of damages
to those that are "economic" in nature. Because economic damages are compensatory, they do not include
punitives. 1 The Law of Damages in Wisconsin supra. Therefore, we conclude that ch. 655 and §
893.55(5) do not permit the recovery of punitive damages in medical malpractice
actions. We arrive at this conclusion
for a variety of reasons.
First, in examining the
legislature's intent, we note that the medical malpractice statutory scheme was
enacted during a period of perceived crisis in Wisconsin's health care
system. The number of medical
malpractice suits was rapidly increasing, and there was an escalation in the
size of the judgments and settlements accompanying these suits. Laws of 1975, ch. 37, § 1(a). As a direct result of the increased
judgments and settlements, insurance companies raised the cost and availability
of liability insurance. Id. at § 1(b). This, in turn, led to a dramatic increase in the costs that
patients paid for health care services and facilities. Id. at § 1(c).
The increased insurance costs also had a deleterious effect on the
health care services available to the public.
Because of the high premiums that insurance companies were charging for
liability insurance, many physicians refrained from providing certain health
care services because of the high risk associated with those services. Id. at § 1(g). For these reasons, the legislature concluded
that medical malpractice suits, and the high judgments that resulting
therefrom, were working a detriment to health care providers, patients and the
public in general. Id. at §
1(k).
In the wake of its
findings, the legislature enacted a medical malpractice statutory scheme to
combat the increasing liability insurance costs. A statutory cap was placed on noneconomic damages, §
893.55(4)(d), Stats., a special
statute of limitations was introduced to prohibit the commencement of an action
more than five years after the act or omission giving rise to the claim, §
893.55(1)(b) and a mediation system was established to provide an alternative
means of resolving medical malpractice disputes. Section 655.42, Stats. Despite the environment in which the medical
malpractice statutory scheme was enacted and despite the actions taken by the
legislature to reduce liability insurance costs, the plaintiffs contend that this
court should conclude that punitive damages are recoverable in medical
malpractice actions. We decline to do
so. The medical malpractice statutory
scheme was enacted to control the increased judgments associated with
malpractice claims and to reduce increasing liability insurance costs in an
effort to limit the detrimental effect malpractice actions were perceived to be
having on the delivery of health care services. The position the plaintiffs advance is inconsistent with the
legislature's stated purpose because punitive damages would result in increased
judgments and thereby increase liability insurance costs. Therefore, given the legislative findings
that precipitated the enactment of the medical malpractice statutory scheme and
the actions the legislature has taken to reduce liability insurance costs, we
conclude that the legislature did not intend that punitive damages be
recoverable in medical malpractice actions.
Second, we note that §
895.70(3), Stats., specifically
provides that punitive damages are recoverable in actions based on a
physician's sexual exploitation of a patient.
If the legislature did not intend to exclude punitive damages from
medical malpractice actions there would have been no need to specifically
provide for the recovery of punitive damages in a specific type of malpractice
action.[2] The fact that the legislature found it
necessary to specifically authorize punitive damages in sexual exploitation
malpractice cases supports our conclusion that the legislature did not intend
to provide for the recovery of punitive damages in other types of malpractice
actions.
Third, § 893.55(5), Stats., represents a clear and
unambiguous legislative effort to specify those damages a plaintiff may recover
in a medical malpractice action. If the
legislature did not intend to change the common law as to the damages that may
be recovered in malpractice actions, there would have been no need for the
legislature to enact the provision.
Thus, we reject the plaintiffs' assertion that § 893.55(5) is a mere
recitation of the common law and conclude that the legislature intended to
change the damages authorized under common law. Because the only change reflected in the statute is the
preclusion of punitive damages, we conclude that the legislature did not intend
to allow the recovery of punitive damages in medical malpractice actions.
Finally, we construe §
893.55(5), Stats., to limit the
recovery of "damages" to those that are "economic" in
nature. We acknowledge that there is a
rule of statutory construction that would permit the statute to be read in a
manner that would allow the recovery of all damages, economic or
otherwise. However, the rule is not
inflexible. As our supreme court noted
in Fuller v. Spieker, 265 Wis. 601, 605, 62 N.W.2d 713, 715 (1954),
"[t]he rule is that qualifying or limiting words or clauses in a statute
are to be referred to the next preceding antecedent, unless the context or
the evident meaning of the enactment requires a different construction." (Citation omitted; emphasis added.) Here, the evident purpose of the enactment
was to control the increasing judgments accompanying medical malpractice claims
and reduce liability insurance costs.
Reading § 893.55(5) to allow the recovery of all damages, whether
economic or not, would permit the recovery of higher judgments and thereby
contravene the purpose of the enactment.
Therefore, we conclude that § 893.55(5) only permits the recovery of
"economic damages."
The plaintiffs, however,
argue that our reading of § 893.55(5), Stats.,
renders the language duplicitous because economic injuries and economic damages
are synonymous. Thus, noting that a
statute should not be read so as to render any portion of the statute
surplusage, Lang v. Lang, 161 Wis.2d 210, 224-25, 467 N.W.2d 772,
777-78 (1991), the plaintiffs contend that we must read the statute to permit
the recovery of damages, regardless whether they are economic.
We agree that any
distinction between economic injuries and economic damages is slight at
best. Nonetheless, we will not employ a
rule of statutory construction to override the clear intent of the legislature. As noted in State v. Ross, 73
Wis.2d 1, 5, 242 N.W.2d 210, 212 (1976):
"If possible, a statute should not be construed so as to render any
portion or word surplusage. However,
legislative intent controls and this court may insert or reject words necessary
or reasonably inferable ...."
(Citations omitted.) As we have
already noted, the purpose of the medical malpractice statutory scheme was to
control the increasing judgments in medical malpractice actions. Our conclusion that punitive damages are not
recoverable in medical malpractice actions is consistent with this purpose.
The plaintiffs next
contend that our conclusion that punitive damages are not recoverable under §
893.55(5), Stats., is
inconsistent with our supreme court's previous decisions in Brown v.
Maxey, 124 Wis.2d 426, 369 N.W.2d 677 (1985), and Cieslewicz v.
Mutual Serv. Cas. Ins. Co., 84 Wis.2d 91, 267 N.W.2d 595 (1978). We do not agree that either of these cases
implicates our construction of the statutory language in this case. Brown and Cieslewicz
did not involve the interpretation of statutory language, but rather the
interpretation of insurance policies to determine whether punitive damages fell
within the ambit of the policies' coverage.
Further, we note that unlike this case, the insurance policies in Brown
and Cieslewicz did not use the modifier "economic"
before the words "damages" and "injuries." Finally, and most importantly, in neither Brown
nor Cieslewicz did the court have the benefit of the drafter's
intent when interpreting the language of the insurance policies in
question. Therefore, we conclude that
these cases are inapposite to the case before us.
The most troubling
argument advanced by the plaintiffs is premised on the rule of statutory
construction, which states that "[s]tatutes are not to be construed as changing
the common law unless the purpose to effect such a change is clearly expressed
therein and such purpose is demonstrated by language which is clear,
unambiguous and peremptory." Leahy
v. Kenosha Mem'l Hosp., 118 Wis.2d 441, 449, 348 N.W.2d 607, 612 (Ct.
App. 1984). The plaintiffs contend that
without a specific statement by the legislature that it intended to preclude
the recovery of punitive damages in medical malpractice cases, we should
interpret § 893.55(5), Stats., to
permit punitive damages. This is an
argument that has much to commend it; however, in the final analysis it is
insufficient to compel the result the plaintiffs seek. Although a portion of the statute is
ambiguous, the compelling evidence of the legislature's intent is more than
sufficient to demonstrate that the legislature intended to change the common
law to preclude punitive damages in medical malpractice actions. For the foregoing reasons, we conclude that
the trial court properly concluded that punitive damages are not recoverable in
medical malpractice claims.
By the Court.—Order
affirmed.