284 Wis.2d 573 (2005) 2005 WI 125 701 N.W.2d 440

Matthew FERDON, by his Guardian ad Litem, Vincent R. Petrucelli, Cynthia Ferdon and Dennis Ferdon, Plaintiffs-Appellants-Petitioners,
v.
WISCONSIN PATIENTS COMPENSATION FUND, Medical Protective Company, Michael J. Brockman, M.D., and Aurora Health Care, Inc., d/b/a Bay West Gynecology & Obstetrics, Ltd., Defendants-Respondents,
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a/k/a Cigna Insurance, f/k/a Healthsource Provident Administrators, Inc., a/k/a Healthsource Provident, and County of Oconto, Nominal-Defendants.

No. 2003AP988.

Supreme Court of Wisconsin.

Oral argument April 26, 2005. Decided July 14, 2005.

For the plaintiffs-appellants-petitioners there were briefs by Vincent R. Petrucelli and Petrucelli & Petrucelli, P.C., Iron River, MI, and oral argument by Marie A. Stanton and Merrick R. Domnitz.

For the defendant-respondent Wisconsin Patients Compensation Fund there was a brief by Steven P. Means, Christine Cooney Mansour, Roisin H. Bell and Michael Best & Friedrich, LLP, Madison, and oral argument by Steven P. Means.

*584 An amicus curiae brief was filed by Michael B. VanSicklen, Roberta F. Howell and Foley & Lardner, LLP, Madison, on behalf of Physicians Insurance Company of Wisconsin and the Property Casualty Insurers Association of America; and by Eric Englund, Madison, on behalf of the Wisconsin Insurance Alliance.

An amicus curiae brief was filed by Timothy J. Muldowney, Jennifer L. Peterson and LaFollette Godfrey & Kahn, Madison, and Melanie Cohen, Madison, on behalf of the Wisconsin Medical Society and the American Medical Association.

An amicus curiae brief was filed by D. James Weis, Robert L. Jaskulski and Habush Habush & Rottier, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

An amicus curiae brief was filed by Colleen D. Ball and Appellate Counsel, S.C., Wauwatosa, on behalf of Wisconsin Coalition for Civil Justice and Wisconsin Manufacturers and Commerce.

An amicus curiae brief was filed by Thomas M. Pyper, Cynthia L. Buchko and Whyte Hirschboeck Dudek S.C., Madison, on behalf of The Wisconsin Hospital Association, Inc. and The American Hospital Association.

*583 ś 1. SHIRLEY S. ABRAHAMSON, C.J.

This is a review of a summary order^[1] 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)^[2] and against Matthew Ferdon.

*585 ś 2. 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.

ś 3. A jury awarded Matthew Ferdon $700,000 in noneconomic 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 noneconomic 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.

ś 4. After the verdict the Fund moved to have the noneconomic damages reduced pursuant to the limitation established in Wis. Stat. §§ 655.017 and 893.55(4)(d) (2001-02).^[3] 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.

ś 5. 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.

ś 6. 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.

*586 ś 7. Three questions are presented in the instant case:

ś 8. First, is the $350,000 statutory limitation on noneconomic damages resulting from a medical malpractice injury in Wis. Stat. §§ 655.017 and 893.55(4)(d) constitutional?

ś 9. Matthew Ferdon challenges the statutory limitation on noneconomic 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;^[4] (2) violates the right to a trial by jury as provided in Article I, Section 5 of the Wisconsin Constitution;^[5] (3) violates the right to a remedy as provided in Article I, Section 9 of the Wisconsin Constitution;^[6] (4) violates the due process clause of the Wisconsin Constitution;^[7]*587 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.^[8] The circuit court held the statutory limitation was constitutional; the court of appeals agreed.

ś 10. We hold that the $350,000 cap (adjusted for inflation) on noneconomic 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.

ś 11. 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.

ś 12. Third, is Wis. Stat. § 655.015, which requires the portion of the jury's award for future medical expenses exceeding $100,000 to be deposited into an account over which the Fund has control, constitutional? *588 The parties argue the constitutionality of § 655.015 and the administrative rule implementing it, Wis. Admin. Code § Ins 17.26. The parties have not adhered to the procedure set forth in Wis. Stat. § 227.40 before challenging the constitutionality of the rule and have not considered whether the rule exceeds the authority delegated under § 655.015. Accordingly, we remand this question to the circuit court for the parties to comply with § 227.40 and address the validity of the rule, as well as to be heard on the constitutionality of the statute and rule.

ś 13. Before continuing, it is important to highlight that this case is not about whether all caps, or even all caps on noneconomic damages, are constitutionally permissible. The question before this court is a narrow one: Is the $350,000 cap (adjusted for inflation and hereinafter referred to as the $350,000 cap) on noneconomic damages in medical malpractice cases set forth in Wis. Stat. §§ 655.017 and 893.55(4)(d) constitutional?

ś 14. Medical malpractice litigation is a highly charged area of the law with ramifications not only for the injured party and the health care provider involved, but for all victims of medical malpractice, all health care providers, and the public. After a patient is injured, sometimes severely and permanently, a medical malpractice lawsuit pits the unfortunate patient and the patient's family against the health care provider in whom the patient and family had previously placed their trust. Physicians have contended that since the early- to mid-Nineteenth Century there has been a medical malpractice crisis pitting physicians against injured patients and their attorneys.^[9]

*589 ś 15. Emotion is not the only force at work in medical malpractice actions. Money is at stake for everyone involved, including the public. In the case of medical malpractice, interest groups representing every aspect of the delivery of health care are heavily involved in lobbying the legislature. A sampling of the interest groups includes hospital associations, insurance companies, doctor and nurse associations, patient advocates, and lawyer associations. Despite these circumstances, the task of the court in a medical malpractice action is the same as in any other case: to conduct a fair and neutral evaluation of the merits of the parties' arguments in light of the state's laws and constitution.

ś 16. Both in his briefs and at oral argument, Matthew Ferdon asks this court to strike down all statutory caps on noneconomic damages in medical malpractice actions under chapter 655. This court has not held that statutory limitations on damages are per se unconstitutional.^[10] Indeed, this court has recently upheld the cap on noneconomic damages for wrongful *590 death medical malpractice actions.^[11] Just because caps on noneconomic damages are not unconstitutional per se does not mean that a particular cap is constitutional.

ś 17. Courts across the country are divided about whether caps on noneconomic damages are constitutional. Even in state courts in which caps have been declared constitutional, there is invariably one or more strong dissents.^[12]

*591 ś 18. The roadmap to this opinion is as follows:

I. The facts (ś 19 to ś 23)

II. The medical malpractice statutes (ś 24 to ś 28)

III. Stare Decisis (ś 29 to ś 56)

IV. Equal Protection

A. The level of scrutiny (ś 59 to ś 80)

B. The classifications (ś 81 to ś 84)

C. The legislative objectives (ś 85 to ś 96)

D. The rational basis (ś 97 to ś 176)

V. Other Statutes (ś 177 to ś 183)

VI. Conclusion (ś 184 to ś 188)

*592 I. FACTS

ś 19. According to evidence produced at trial that the jury apparently accepted, as the doctor was delivering Matthew Ferdon, the doctor pulled on Matthew Ferdon's head. The manner in which the doctor pulled caused an injury called obstetric brachial plexus palsy. As a result of this injury, Matthew Ferdon's right arm is partially paralyzed and deformed. Matthew Ferdon underwent surgeries and occupational therapy; as a result of the injury, more surgery and more therapy will be required. Matthew Ferdon's right arm will never function normally.

ś 20. Through his guardian ad litem, Vincent Petrucelli, Matthew Ferdon brought negligence claims against the doctor and the hospital. The Fund, as required, was named as a defendant.^[13] Matthew Ferdon's parents, Cynthia and Dennis Ferdon, also brought a negligence claim, seeking to recover for loss of society and companionship. A jury found the delivery doctor negligent for the injuries Matthew Ferdon sustained during the birth.

ś 21. The jury awarded the following damages to Matthew Ferdon: (1) Future medical and hospital expenses: $403,000; and (2) Past and future personal injuries (noneconomic damages): $700,000. The jury made no award to Matthew Ferdon for loss of future earning capacity. The jury awarded $87,600 to Cynthia and Dennis Ferdon as compensation for the personal care they will render for Matthew until the age of 18.

*593 ś 22. After the verdict, the Fund moved the circuit court to reduce the $700,000 personal injury award to $410,322, the amount of the $350,000 cap (adjusted for inflation) on noneconomic damages recoverable in a medical malpractice action under Wis. Stat. §§ 655.017 and 893.55(4)(d). Further, the Fund moved to have the award for future medical and hospital expenses exceeding $100,000 placed under the Fund's control pursuant to Wis. Stat. § 655.015.

ś 23. The circuit court granted the Fund's motions, reducing the noneconomic damage award to the statutorily limited amount of $410,322 and ordering that $168,667.67 of the future medical and hospital expenses be paid into the reimbursement fund.^[14] Matthew Ferdon appealed; the court of appeals summarily *594 affirmed the circuit court based on its reading of State ex rel. Strykowski v. Wilkie^[15] and Guzman v. St. Francis Hospital, Inc..^[16]

II. MEDICAL MALPRACTICE STATUTES

ś 24. In Wisconsin, a claim for injury resulting from medical malpractice by a health care provider is subject to the provisions of chapter 655.^[17] Chapter 655 provides the exclusive procedures for the "prosecution of malpractice claims against a health care provider."^[18] Among the damages available to a claimant are noneconomic *595 damages, including damages to compensate for pain and suffering, mental distress, loss of enjoyment of normal activity, and loss of society and companionship.^[19]

ś 25. The Fund was created to pay medical malpractice claims that exceed primary insurance thresholds established by statute. The primary malpractice coverage is $1,000,000 for each occurrence and $3,000,000 per policy year.^[20] Health care providers must participate in the Fund. Although noneconomic damages are capped, the Fund provides unlimited liability coverage for economic damages exceeding the primary limits.^[21]

ś 26. Should a claimant recover noneconomic damages as a result of a medical malpractice injury, those damages are statutorily capped pursuant to Wis. Stat. §§ 655.017 and 893.55(4) at $350,000, a sum to be adjusted annually to reflect inflation.

ś 27. Section 655.017 reads as follows:

Limitation on noneconomic damages. The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider if the act or omission occurs on or *596 after May 25, 1995, and for acts or omissions of an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits under s. 893.55(4)(d) and (f).^[22]

ś 28. The financial limits to which § 655.017 refers are contained in Wis. Stat. § 893.55(4)(d), which reads as follows:

(d) The limit on total noneconomic damages for each occurrence under par. (b) on or after May 25, 1995, shall be $350,000 and shall be adjusted by the director of state courts to reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, at least annually thereafter, with the adjustment limit to apply to awards subsequent to such adjustments.

The parties do not dispute that in the instant case the inflation-adjusted cap authorized by Wis. Stat. § 893.55(4)(d) was $410,322.

III. STARE DECISIS

ś 29. The Fund's first assertion is that, under the doctrine of stare decisis, prior cases of both this court and the court of appeals bind this court in the present case.

*597 ś 30. The doctrine of stare decisis, or "stand by things decided,"^[23] normally compels a court to follow its prior decisions. "Fidelity to precedent ensures that existing law will not be abandoned lightly."^[24] We have stated that stare decisis is not mechanical in application, nor is it a rule to be inexorably followed.^[25]

ś 31. The doctrine of stare decisis is inapplicable here. Although Wisconsin appellate decisions have treaded close to the constitutionality of the cap on recovery of noneconomic damages in medical malpractice cases, none has reached the issue central to the instant case. Nevertheless, the prior cases, including equal protection challenges to various provisions of chapter 655, inform our decision.

ś 32. We begin with Strykowski, the earliest case from this court addressing a challenge to chapter 655.^[26] Soon after chapter 655 was enacted, a group of petitioners challenged chapter 655 on several grounds, including equal protection. The petitioners challenged a sub-classification that made a formal review panel available at the request of either party to a medical malpractice action if the claim exceeded $10,000, but made a review panel available for a claim under $10,000 only upon the stipulation of both parties.^[27] This court reasoned that the legislature could conclude that because claims over *598 $10,000 may be more complex, a formal review panel may be a more appropriate initial forum. This court was careful to recognize that the 1975 legislative findings^[28] that medical malpractice raised special problems different from those in other tort actions, "while not binding on the court, carr[ied] great weight."^[29]

ś 33. Strykowski addressed a different aspect of chapter 655 than that involved in the instant case. Strykowski involved an equal protection challenge to the formal review panels. This case concerns the $350,000 cap implemented in 1995, not the overall constitutionality of chapter 655. Therefore, the equal protection challenge in Strykowski was to a different classification than that at issue in the instant case. Thus, the discussion of equal protection in Strykowski is not helpful, much less controlling, in resolving the issue facing us in the present case.

ś 34. Although chapter 655 as enacted contained a cap on noneconomic damages, that cap did not go into effect until 1979 and even then was a contingency. The cap adopted in 1979 provided that awards would be limited to $500,000 per incident if the Fund's assets fell below certain levels.^[30] Because the cap was not in effect at the time Strykowski was being decided and therefore had not affected the petitioners' recoveries, the court declined to address the constitutionality of the cap in the face of an equal protection challenge.^[31]

ś 35. Our recent decision in Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, similarly does not control the present case. In Maurin, this court *599 rejected an equal protection challenge to the noneconomic damages cap in wrongful death actions.^[32]

ś 36. Maurin involved a challenge to the provisions of chapters 655 and 893 that are specifically concerned with wrongful death medical malpractice actions (Wis. Stat. § 893.55(4)(f)). This case, a common law medical malpractice case, raises different equal protection challenges. Different legislative objectives are at play in a wrongful death action because the medical malpractice victim is dead. As noted by the majority in Maurin, the noneconomic damages cap in wrongful death cases was "implemented to assuage fears `that passion would run high where the wrongdoer causes death and that huge damage awards would be imposed on the wrongdoer.'"^[33] The heightened passion surrounding a dead medical malpractice victim is not at issue in this case. Matthew Ferdon survived. And while Matthew Ferdon's injuries are indeed tragic, they pale in comparison to five-year-old Shay Maurin's death and are therefore not as likely to arouse the same passion in a jury.

ś 37. This court turned away an equal protection challenge in Czapinski v. St. Francis Hospital, Inc.^[34] Like Maurin, Czapinski dealt with caps on wrongful death medical malpractice actions. The court held that in the context of wrongful death actions, "[section] 893.55(4)(f) does not violate the equal protection clause of the Wisconsin Constitution."^[35]

*600 ś 38. The petitioners in Czapinski challenged a classification not at issue in this case. The classification challenged was the distinction between how adult claimants were treated and how minor claimants were treated for loss of society and companionship of a parent who died as a result of medical malpractice.^[36] Adult children were denied recovery; minor children were entitled to recovery.

ś 39. In discussing the classification the court explained that "the distinction between adult children and minor children could be the different degree of dependency which each would be presumed to have on their parents for their continued financial and emotional support."^[37] Notably, when "[f]aced with the need to draw the line on who can collect for loss of society and companionship,... the availability of claims ... should be limited to those who would suffer most severely from the loss of an intimate family relationship; adult children cannot be included in this classification."^[38]

ś 40. The $350,000 cap on noneconomic damages at issue here has exactly the opposite effect as the classification in Czapinski. The $350,000 cap limits the claims of those who can least afford it; that is, the claims of those, including children such as Matthew Ferdon, who have suffered the greatest injuries.

ś 41. A recent court of appeals decision, Guzman v. St. Francis Hospital, Inc., 2001 WI App 21, 240 Wis. 2d 559, 623 N.W.2d 776, is not strong precedent. While *601 the issue is the same as the instant case, the court of appeals' opinion is neither controlling nor particularly compelling.

ś 42. In Guzman, the circuit court held that the $350,000 cap on noneconomic damages was unconstitutional as violating both the Wisconsin constitutional right to trial by jury and the separation of powers doctrine. We granted a petition to bypass the court of appeals.^[39]

ś 43. The supreme court divided equally, 3-3, in Guzman, with Justice David Prosser not participating. The order to bypass was vacated^[40] because no majority of justices could agree on whether to affirm or reverse the circuit court order holding the statutory cap in Wis. Stat. §§ 655.017 and 893.55(4)(d) unconstitutional. The case returned to the court of appeals, which declared the cap constitutional.

ś 44. Each of the three judges on the court of appeals panel authored a separate opinion. Only one of the three court of appeals judges supported the constitutionality of the noneconomic damages cap.

ś 45. One judge, in the lead opinion, concluded that the cap on noneconomic damages in Wis. Stat. §§ 655.017 and 893.55(4)(d) was constitutional. He declared that whether a health-care crisis justified the legislature's responses was an assessment to be made by the legislature, not the courts.^[41] He further concluded that the cap did not violate the right to a trial by jury (Wis. Const. art. I, § 5),^[42] the right to a remedy for *602 wrongs (Wis. Const. art. I, § 9),^[43] substantive due process,^[44] and the doctrine of separation of powers.^[45]

ś 46. The concurring judge "reluctantly" joined the majority opinion, concluding that "the statute barely passes constitutional muster" and that she could not overturn legal precedent that supports the legislature's action.^[46]

ś 47. The dissenting judge would have struck down the cap as a violation of Article I, Section 5, the right to a jury trial.

ś 48. None of the three opinions in Guzman, however, addresses whether the $350,000 cap on noneconomic damages violates the state constitutional equal protection guarantees.

ś 49. In their equal protection challenge, the Guzmans argued that the classifications created by the cap should be reviewed using strict scrutiny. They did not address whether the cap survived review under the rational basis test. The court of appeals' lead opinion ruled that the rational basis test was the appropriate level of review and concluded that "[t]he Guzmans' silence on the rational-basis test is a concession that the cap passes that test."^[47]

ś 50. We do not agree with this reasoning. "A party's concession of law does not bind the court."^[48] The *603 lead opinion further stated that because the Guzmans did not argue that the caps lacked a rational basis, the judge would not address that issue.^[49] Thus the lead opinion, the only opinion to address equal protection directly, did not decide whether the cap passed the rational basis test.

ś 51. Guzman therefore provides no opinion on the equal protection challenge and accordingly has no precedential vitality as to equal protection. Furthermore, with three separate opinions, only one of which supports the constitutionality of the cap, Guzman is not a strong precedent for any proposition.

ś 52. In Martin v. Richards,^[50] the court determined whether a retroactive application of the $1,000,000 cap on noneconomic damages in malpractice cases could violate due process; it did not directly determine the constitutionality of the noneconomic damages cap.^[51]

ś 53. The court's discussion of the cap in Martin is relevant to the instant case. The court concluded that retroactive application of the cap would have a negligible *604 effect on the cost of health care in the state.^[52] The court observed that although the claim is that noneconomic damages caps were implemented to prevent increasing costs associated with medical malpractice actions, "in this court these assertions are supported by a paucity of evidence."^[53]

ś 54. In Rineck v. Johnson,^[54] this court held that the then-$1,000,000 cap on noneconomic damages in medical malpractice actions superseded the lower cap in the wrongful death statute where the death resulted from medical malpractice.^[55] This court did not address the constitutionality of the medical malpractice cap.

ś 55. In Jelinek v. St. Paul Fire & Casualty Insurance Co.,^[56] this court held that after the expiration of the $1,000,000 cap in 1991, recovery of noneconomic damages in medical malpractice actions involving death was unlimited.^[57] This court did not determine the constitutionality of a cap.

ś 56. Each of these cases informs our examination in the instant case, but none is controlling.

IV. EQUAL PROTECTION

ś 57. We next examine Matthew Ferdon's assertion that the cap on noneconomic damage awards violates *605 the equal protection guarantees of the Wisconsin Constitution.

ś 58. The interpretation of the Wisconsin Constitution and a determination of the constitutionality of a statute are ordinarily questions of law that this court determines independently of the circuit court and court of appeals, but benefiting from their analyses.

A. Level of Scrutiny

ś 59. In deciding Matthew Ferdon's challenge to the $350,000 cap on noneconomic damages on equal protection grounds, our first task is to determine the appropriate level of judicial scrutiny to be applied in determining constitutionality.

ś 60. The parties disagree about which level of judicial scrutiny should apply in this case. Matthew Ferdon invites this court to use the strict scrutiny standard in reviewing the statutory $350,000 cap. He argues that the noneconomic damages cap implicates the fundamental right to a trial by jury and the right to a remedy protected by the state constitution. The Fund argues that strict scrutiny is unwarranted and that the proper level of review is rational basis review.

ś 61. Strict scrutiny applies if a statute challenged on equal protection grounds "impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class."^[58] If strict *606 scrutiny were applied in the instant case, the Fund would have the burden of showing that the $350,000 cap on noneconomic damages caused by medical malpractice tortfeasors promotes a compelling governmental interest and that the $350,000 cap is the least restrictive means for doing so. That is, the Fund would have to show that the cap is precisely tailored to serve a compelling state interest.

ś 62. Courts apply strict scrutiny sparingly, although at least one state court has used the strict scrutiny level of review in medical malpractice cases.^[59]

ś 63. Several state courts have applied an intermediate level of scrutiny to caps in medical malpractice cases.^[60] Under intermediate scrutiny, the classification "must serve important governmental objectives and must be substantially related to achievement of those *607 objectives."^[61] This court has applied an intermediate level of scrutiny on at least one prior occasion.^[62]

ś 64. Neither party in the present case has argued that we should apply the intermediate level of review.

ś 65. We agree with the Fund that rational basis, not strict scrutiny, is the appropriate level of scrutiny in the present case.^[63] This court has stated that Wis. Stat. chapter 655 does not deny any fundamental right and does not involve a suspect classification.^[64] In the context of wrongful death medical malpractice actions, this court has previously held that "[c]apping noneconomic wrongful death damages does not violate any fundamental right ...."^[65] Similarly, in examining whether the appointment of six-member compensation panels effectively denied suing patients access to the courts, thereby violating their rights to a jury trial as preserved in Article I, Section 5 of the Wisconsin Constitution, this court held that chapter 655 did not involve fundamental *608 rights or suspect classifications.^[66] As for Article I, Section 9, "[t]his court has never construed the right [to a remedy provision] to be fundamental."^[67]

ś 66. This discussion is not meant to minimize the importance of the right to a jury and the right to a remedy; both are important rights. Nevertheless, in the context of equal protection challenges to medical malpractice provisions, this court has not viewed these two constitutional guarantees as belonging to the class of rights warranting strict scrutiny. The rational basis level of scrutiny is therefore applied in the present case.

ś 67. A person challenging a statute on equal protection grounds under the rational basis level of scrutiny bears a heavy burden in overcoming the presumption of constitutionality afforded statutes.^[68] Statutes are afforded the presumption of constitutionality "[b]ecause statutes embody the economic, social, and political decisions entrusted to the legislature ...."^[69]

ś 68. The longstanding rule set forth by this court is that "all legislative acts are presumed constitutional, that a heavy burden is placed on the party challenging *609 constitutionality, and that if any doubt exists it must be resolved in favor of the constitutionality of a statute."^[70] A challenger must demonstrate that a statute is unconstitutional beyond a reasonable doubt.^[71]

ś 69. Nevertheless, when a legislative act unreasonably invades rights guaranteed by the state constitution, a court has not only the power but also the duty to strike down the act. Although we do not address Ferdon's constitutional challenges under Article I, Section 5 (right to a jury trial) and Section 9 (right to a remedy), the $350,000 cap on noneconomic damages may implicate these constitutional rights. In short, "neither our respect for the legislature nor the presumption of constitutionality allows for absolute judicial acquiescence to the legislature's statutory enactments."^[72] The court has emphasized that "[s]ince Marbury v. Madison, it has been *610 recognized that it is peculiarly the province of the judiciary to interpret the constitution and say what the law is."^[73]

ś 70. The decisions in this court, in other state courts, and in the United States Supreme Court have expressed judicial review on the basis of equal protection in a variety of iterations.^[74] Cases within a single jurisdiction have expressed divergent views on the clarity with which a legislative purpose must be stated and on the degree of deference afforded the legislature in suiting means to ends.^[75]

ś 71. This court has often quoted the United States Supreme Court's articulation of the rational basis test set forth in McGowan v. Maryland^[76] as follows:

[The Equal Protection Clause] permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.^[77]

*611 ś 72. The court has written that the rational basis standard in the equal protection context does not require that all individuals be treated identically, but any distinctions must be relevant to the purpose motivating the classification.^[78] Similarly situated individuals should be treated similarly.^[79] In essence, the rational basis standard asks "whether there are any real differences to distinguish the favored class ... from other classes ... who are ignored by the statute...."^[80]

ś 73. A statute will be upheld against an equal protection challenge if a plausible policy reason exists for the classification and the classification is not arbitrary in relation to the legislative goal.^[81] A statute will be held unconstitutional if the statute is shown to be "patently arbitrary" with "no rational relationship to a *612 legitimate government interest."^[82] The party challenging the classification has the burden of demonstrating that the classification is arbitrary and irrationally discriminatory.

ś 74. In evaluating whether a legislative classification rationally advances the legislative objective,^[83] "we are obligated to locate or, in the alternative, construct a rationale that might have influenced the legislative determination."^[84]

ś 75. Once the court identifies a rational basis for a statute, the court must assume the legislature passed the act on that basis,^[85] and "[a]ll facts necessary to sustain the act must be taken as conclusively found by the legislature, if any such facts may be reasonably conceived in the mind of the court."^[86]

ś 76. The rational basis test does not require the legislature to choose the best or wisest means to achieve its goals.^[87] Deference to the means chosen is due even if *613 the court believes that the same goal could be achieved in a more effective manner.^[88]

ś 77. Nevertheless, judicial deference to the legislature and the presumption of constitutionality of statutes do not require a court to acquiesce in the constitutionality of every statute. A court need not, and should not, blindly accept the claims of the legislature. For judicial review under rational basis to have any meaning, there must be a meaningful level of scrutiny, a thoughtful examination of not only the legislative purpose, but also the relationship between the legislation and the purpose. The court must "probe beneath the claims of the government to determine if the constitutional `requirement of some rationality in the nature of the class singled out' has been met."^[89]

ś 78. The rational basis test is "not a toothless one."^[90] "Rational basis with teeth," sometimes referred to as "rational basis with bite," focuses on the legislative *614 means used to achieve the ends.^[91] This standard simply requires the court to conduct an inquiry to determine whether the legislation has more than a speculative tendency as the means for furthering a valid legislative purpose. "The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational."^[92] At least one law student note, while observing that the U.S. Supreme Court had "employ[ed] searching scrutiny under the label of rational basis review,"^[93] nevertheless criticized the U.S. Supreme Court and implored the use *615 of intermediate scrutiny rather than rational basis with teeth.^[94]

ś 79. Constitutional law scholar Professor Gerald Gunther wrote, however, as follows that rational basis with teeth "is not the same as "`intermediate scrutiny'":

[Rational basis with teeth] does not take issue with the heightened scrutiny tiers of "strict" and "intermediate" review. Instead, it is solely addressed to the appropriate intensity of review to be exercised when the lowest tier, that of rationality review, is deemed appropriate.... What the [rational basis with teeth model] asks is that some teeth be put into that lowest level of scrutiny, that it be applied "with bite," focusing on means without second-guessing legislative ends. (Evaluating the importance of the ends is characteristic of all higher levels of scrutiny.) In short, [rational basis with teeth raises] slightly the lowest tier of review under the two- or three-tier models; but it does not seek to raise the "mere rationality" level appropriate for run-of-the-mill economic regulation cases all the way up to the level of "intermediate" or of "strict" scrutiny.^[95]

ś 80. Whether the level of scrutiny is called rational basis, rational basis with teeth, or meaningful rational basis, it is this standard we now apply in this case.

*616 B. The Classifications

ś 81. The task of drawing lines, that is the task of creating classifications, is a legislative one in which perfection "is neither possible nor necessary."^[96] The court's goal is to determine whether the classification scheme rationally advances the legislative objective. In limiting noneconomic damages in medical malpractice actions, Wis. Stat. §§ 655.017 and 893.55(4)(d) together create a number of classifications and sub-classifications.^[97] One main classification is relevant to the present case, and one sub-classification is implicated:

ś 82. The main classification is the distinction between medical malpractice victims who suffer over $350,000 in noneconomic damages, and medical malpractice *617 victims who suffer less than $350,000 in noneconomic damages. That is, the cap divides the universe of injured medical malpractice victims into a class of severely injured victims and less severely injured victims. Severely injured victims with more than $350,000 in noneconomic damages receive only part of their damages; less severely injured victims with $350,000 or less in noneconomic damages receive their full damages. In other words, the statutory cap creates a class of fully compensated victims and partially compensated victims. Thus, the cap's greatest impact falls on the most severely injured victims.^[98]

ś 83. A main sub-classification is created as part of the $350,000 cap on noneconomic damages. A single cap applies to all victims of a medical malpractice occurrence regardless of the number of victims/claimants. Because the total noneconomic damages recoverable for bodily injury or death may not exceed the $350,000 limit for each occurrence, the total award for a patient's claim for noneconomic damages (such as pain, suffering and disability) and the claims of the patient's spouse, minor children, or parents for loss of society and companionship cannot exceed $350,000.^[99] Thus, classes of victims are created depending on whether the patient has a spouse, minor children, or a parent. An injured patient who is single may recover the entire $350,000, while a married injured patient shares the cap with his or her spouse; a non-married injured patient with children *618 shares the $350,000 with the children; a married injured patient with children shares the cap with the spouse and children.

ś 84. With these classifications in mind, we turn to the legislature's objectives for enacting a $350,000 cap on noneconomic damages in medical malpractice actions.

C. Legislative Objectives.

ś 85. Identifying the legislative objectives will allow us to determine whether the legislatively created classifications are rationally related to achieving appropriate legislative objectives.^[100]

ś 86. Although the legislature did not explicitly state its objectives as such, it made a number of findings when it enacted chapter 655.^[101] These findings give a strong indication of the legislature's objectives. The findings can be summarized as follows:

*619 1. Judgments and settlements have increased, thereby increasing the cost and limiting the availability of professional liability insurance coverage;^[102]

2. The increased costs of medical malpractice premiums are passed on to the patients in the form of higher charges for health care;^[103]

3. Individual and institutional health care providers are being forced to practice defensively, to the detriment of the health care provider and patient, and *620 may decline to provide certain services that might be helpful but may entail some risk to the patient;^[104]

4. The cost and difficulty of obtaining medical malpractice insurance discourages young physicians from entering into the practice of medicine in this state and may encourage health care providers to curtail or cease their practices in Wisconsin.^[105] Malpractice insurers may leave the marketplace, making it harder for health care providers to obtain medical malpractice insurance.^[106]

5. "[T]he entire effect of such suits and claims is working to the detriment of the health care provider, the patient and the public in general."^[107]

ś 87. In sum, the legislature found that malpractice lawsuits raise the cost of medical malpractice insurance for providers. According to the legislature, higher medical malpractice insurance costs, in turn, harm the public because they result in increased medical costs for the public and because health care providers might leave Wisconsin. The legislature also found that health care providers were practicing defensive medicine because of the rising number of claims and that they might refuse to enter the Wisconsin health care market. These legislative findings are not binding on the court but carry great weight.^[108]

ś 88. From the findings set forth when chapter 655 was enacted in 1975, we can deduce a primary, overall legislative objective and five interconnected *621 legislative objectives that led to adoption of the $350,000 cap on noneconomic damage awards.

ś 89. The primary, overall legislative objective is to ensure the quality of health care for the people of Wisconsin.^[109] The legislature obviously did not intend to reach this objective by shielding negligent health care providers from responsibility for their negligent actions. After all, "[i]t is a major contradiction to legislate for quality health care on one hand, while on the other hand, in the same statute, to reward negligent health care providers."^[110] A cap on noneconomic damages diminishes tort