Molzof v. U.S.

• Citation: 6 F.3d 461
• Decision Date: 29 September 1993
• Docket Number: No. 92-3192,92-3192
• Parties: Shirley MOLZOF, as personal representative of the Estate of Robert E. Molzof, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 461

6 F.3d 461

62 USLW 2212

Shirley MOLZOF, as personal representative of the Estate of Robert E. Molzof, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 92-3192.

United States Court of Appeals Seventh Circuit.

Argued Feb. 19, 1993.

Decided Sept. 29, 1993.

Virginia M. Antoine, Habush, Habush & Davis, Milwaukee, WI, Daniel A. Rottier (argued), Habush, Habush & Davis, Madison, WI, and Thomas H. Geyer, Kopp, McKichan, Geyer, Clare & Skemp, Platteville, WI, for plaintiff-appellant.

Richard D. Humphrey, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Madison, WI, for defendant-appellee.

Before BAUER, Chief Judge, CUDAHY and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

Plaintiff brought suit under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680, for, inter alia, future medical expenses. On remand from the Supreme Court to determine whether Wisconsin law permits the plaintiff to recover future medical expenses when the plaintiff is entitled to free medical care as a veteran, the district court held that, under Wisconsin law, future medical expenses can be awarded only if there has been a showing that the monies recovered would reasonably be expended on future care. Because the evidence indicated that the plaintiff would not seek care at another facility, but would remain at the Veteran's Administration (VA) hospital and receive his care free, the district court granted the government's motion for summary judgment and denied the award for future medical expenses. We reverse and remand with instructions.

I.

Given our previous decision in this case, 911 F.2d 18 (7th Cir.1990), as well as that of the Supreme Court reversing, --- U.S. ----, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992), we will assume some knowledge of the underlying facts and will present only those necessary for a full understanding of the issue presented.

On October 31, 1986, Robert Molzof was recovering from surgery at the William S. Middleton Memorial Veterans Hospital in Madison, Wisconsin, when the staff negligently disconnected the alarm system on the ventilator to which he was attached. While the alarm was disconnected, the tube supplying oxygen to Mr. Molzof became disengaged. When these disconnections were discovered approximately eight minutes later, Mr. Molzof was in complete cardiac arrest. He was not resuscitated for approximately a half hour. The oxygen deprivation left Mr. Molzof with irreversible brain damage, requiring a ventilator for breathing and a nasogastric tube for nutrition and hydration.

Mr. Molzof, through his guardian ad litem and later through his wife as personal representative of his estate, ¹ brought this action against the United States under authority of the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 (FTCA), for damages resulting from the employees' negligence. The United States admitted liability, and the case proceeded to a bench trial solely on the issue of damages.

At trial, the district court predicted the plaintiff's life expectancy to be three years from the date of trial and that future medical expenses would total approximately $1,280,529. The district court found, however, that, given his service-connected disability, Molzof was entitled to free care from the VA hospital, that the care provided by the VA hospital was reasonable and adequate and that there was no evidence that the level of care provided at a private facility would equal that at the VA hospital. The court also concluded that the plaintiff's wife was reasonably well satisfied with the current services provided by the hospital and that she had no present intention of transferring him to a private facility. In light of these findings, the court ordered the continuation of care at the VA hospital and awarded future medical expenses only in the amount of $67,950, the amount necessary to supplement the care received at the VA hospital. The district court, relying on Brooks v. United States, 337 U.S. 49, 53, 69 S.Ct. 918, 920, 93 L.Ed. 1200 (1949), reasoned that, although future medical expenses totaled approximately $1,280,529, requiring the government to pay for medical services which it was already obligated to provide and which equaled or bettered the care the plaintiff would receive at a private facility would be punitive and thus prohibited by Sec. 2674 of the FTCA. ²

On appeal we affirmed, but the Supreme Court reversed. The Court held that the award of future medical expenses was not punitive because it was based on a simple negligence theory and did not depend on proof of intentional or egregious misconduct. The Court did not conclude, however, that the plaintiff was necessarily entitled to the full award of future medical expenses. Instead, it remanded the case because there was no finding that the damages were recoverable under Wisconsin law: "It may be that under Wisconsin law the damages sought in this case are not recoverable as compensatory damages. This might be true because Wisconsin law does not recognize such damages, or because it requires a setoff when a defendant already has paid (or agreed to pay) expenses incurred by the plaintiff, or for some other reason." --- U.S. at ----, 112 S.Ct. at 718.

On remand, the district court granted summary judgment in favor of the government. The district court held that, under Wisconsin law, the plaintiffs were not entitled to future medical expenses because "it ha[d] not been shown that any monies would have been reasonably and necessarily expended by plaintiff in the future for that care and treatment." Molzof v. United States, No. 88-C-904-S, Mem. and Order at 6 (W.D.Wis. July 16, 1992). It relied on Wisconsin Jury Instruction 1750A, which states that a jury should award future medical expenses in the amount that "will reasonably and necessarily be expended by plaintiff in the future for the care and treatment." Reviewing the record, the district court found no evidence that the Molzofs planned to leave the VA hospital for a private or other provider and noted that Mrs. Molzof generally had been satisfied with the care provided by the VA hospital. The plaintiff once again appeals.

II.

The factual findings of the district court not being disputed, our review is simply of the district court's determination of Wisconsin law, which we review de novo. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). The issue is whether Wisconsin law permits a plaintiff to recover his future medical expenses against the federal government, even though the plaintiff is entitled to free medical care from the government as a veteran with a service-connected injury.

Molzof argues that the district court misinterpreted Wisconsin law, and maintains that all that is necessary for a plaintiff to obtain future medical expenses under Wisconsin law is expert evidence establishing that the plaintiff requires future medical care and the reasonable costs of such treatment. Bleyer v. Gross, 19 Wis.2d 305, 120 N.W.2d 156 (1963).

We agree. "The general rule in Wisconsin has been that a plaintiff who has been injured by the tortious conduct of another is entitled to recover the reasonable value of his medical costs reasonably required by the injury.... Under this theory of recovery, the fact that necessary medical and nursing services are rendered gratuitously to one who is injured should not preclude the injured party from recovering the value of those services as part of his compensatory damages." Thoreson v. Milwaukee & Suburban Transp. Co., 56 Wis.2d 231, 201 N.W.2d 745, 752 (1972). See alsoMcLaughlin v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 31 Wis.2d 378, 143 N.W.2d 32 (1966). Contrary to the approach followed by the district court, "Wisconsin has long been committed to the collateral-source rule," Merz v. Old Republic Ins. Co., 53 Wis.2d 47, 191 N.W.2d 876, 879 (1971), which provides that "a personal injury claimant's recovery is not to be reduced by the amount of compensation received from other sources, i.e., sources 'collateral' to the defendant." Lambert v. Wrensch, 135 Wis.2d 105, 399 N.W.2d 369, 372 n. 5 (1987). Consequently, the fact that an award of future medical expenses to Molzof may not be expended on medical care does not bar such an award under Wisconsin law.

The government argues, however, that it is nonetheless entitled to summary judgment because, even if Wisconsin's collateral source rule does not prevent the plaintiff from obtaining, in effect, a "double recovery," it does not permit both of those recoveries to come from the same source--the government. As it did in the prior round of litigation, the government principally relies upon Brooks v. United States, 337 U.S. at 53, 69 S.Ct. at 920, and its progeny for the proposition that Congress did not intend the United States to pay twice for the same injury, for "[i]t would seem incongruous at first glance that the United States should have to pay in tort for hospital expenses it had already paid...." Id.

As a threshold matter, we believe that Brooks is not controlling. In the present case, the Supreme Court decided, at least implicitly, that nothing under the FTCA or other provision of federal law prohibited the government from paying twice for future medical expenses. --- U.S. at ----, 112 S.Ct. at 717 (rejecting government's view that "duplicative damages would be 'punitive damages' because they have the effect of making the United States pay twice"). The Court concluded that awarding future expenses in the light of free care was not punitive. Whether such an award is permissible, the Court indicated, was a matter of state law. Thus, the issue with which we are confronted on remand is not what Congress intended, but rather whether state law, in particular, Wisconsin law, permits double payment.

As to the applicability of Wisconsin's collateral source rule, the government contends, albeit haphazardly, ³ that the rule does not permit the...