State ex rel. Strykowski v. Wilkie
In State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1978), the supreme court, while rejecting an equal protection challenge to the medical malpractice statutory scheme, explained:
"Medical malpractice actions are substantially distinct from other tort actions. The classification is plainly germane to the act's purposes. The law applies to all victims of health care providers as described therein. The legislature declares that the circumstances surrounding medical malpractice litigation and insurance required the enactment of the legislation." (Id. at 509.)
Further, the supreme court noted the reasoning contained in the legislation:
"The legislature cited a sudden increase in the number of malpractice suits, in the size of awards, and in malpractice insurance premiums, and identified several impending dangers: increased health care costs, the prescription of elaborate "defensive" medical procedures, the unavailability of certain hazardous services and the possibility that physicians would curtail their practices." (Id. at 508.)
In State ex rel. Strykowski v. Wilkie, certain of the original 1975 enactments of Wis. Stat. ch. 655 survived constitutional challenges.
The supreme court, however, in the context of an equal protection challenge, declined to address the constitutionality of the cap then encompassing awards for noneconomic damages in medical malpractice actions because it could not have affected the plaintiffs' recoveries in that case. See id. at 511.
In Strykowski, the petitioners argued, among other things, that the patients' compensation panel process of the original version of Wis. Stat. ch. 655 violated their right of trial by jury in two respects: first, "that the expense inherent in panel proceedings," required as a prerequisite to a court action, limited "the accessibility of a subsequent trial," and second, "that the admissibility of panel findings undercut their right to have a jury determine the facts." See Strykowski, 81 Wis. 2d at 522-23. Rejecting their argument, the supreme court declared, "The legislature may modify old procedures, or create new ones, if the substantive right to jury trial is preserved." 81 Wis. 2d at 523 .
The supreme court explained that the patients' compensation panel process consisted of "proceedings preliminary to trial." See 81 Wis. 2d at 524.
Significantly, however, the court rejected the argument that the panel process infringed upon the right of trial by jury for a simple reason: "The medical review panel does not decide the case; the ultimate arbiter of all questions of fact is the jury." 81 Wis. 2d at 526.
Further, precisely because Wis. Stat. ch. 655 "provided adequate opportunity to challenge the findings and order of the panel" in a subsequent jury trial at which the ultimate arbiter of all questions of fact would be the jury, "there would be no constitutional infirmity to contaminate the exclusive prerogatives of the jury." See 81 Wis. 2d at 526-29.
In Strykowski, the supreme court invoked the words of Justice Brandeis, writing for the United States Supreme Court in In re Peterson, 253 U.S. 300 (1920):
"... The command of the Seventh Amendment that 'the right of trial by jury shall be preserved' does not require that old forms of practice and procedure be retained. It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right. The limitation imposed by the Amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with." (Strykowski, 81 Wis. 2d at 529-30.)