744 N.W.2d 880 (Wis.App. 2007), 2006AP2599, Phelps v. Physicians Ins. Co. of Wisconsin, Inc.

Docket Nº:2006AP2599.
Citation:744 N.W.2d 880
Opinion Judge:1 CURLEY, P.J.
Party Name:Gregory PHELPS, Marlene L. Phelps, Estate of Adam Phelps, Deceased, by his Special Administrator, Gregory G. Phelps, Caroline Phelps and Kyle Phelps, minors, by their Guardian ad Litem, William M. Cannon, Plaintiffs-Respondents-Cross-Appellants v. PHYSICIANS INSURANCE CO. OF WISCONSIN, INC., a Wisconsin insurance corporation, Matthew Lindemann, M.D
Attorney:On behalf of the defendants-appellants-cross-respondents, the cause was submitted on the briefs of Michael B. Van Sicklen, Mark L. Langenfeld, and Matthew D. Lee of Foley & Lardner, LLP, of Milwaukee, with oral argument by Michael B. Van Sicklen., On behalf of the plaintiffs-respondents-cross-app...
Case Date:December 04, 2007
Court:Court of Appeals of Wisconsin
 
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744 N.W.2d 880 (Wis.App. 2007)

Gregory PHELPS, Marlene L. Phelps, Estate of Adam Phelps, Deceased, by his Special Administrator, Gregory G. Phelps, Caroline Phelps and Kyle Phelps, minors, by their Guardian ad Litem, William M. Cannon, Plaintiffs-Respondents-Cross-Appellants

v.

PHYSICIANS INSURANCE CO. OF WISCONSIN, INC., a Wisconsin insurance corporation, Matthew Lindemann, M.D., Defendants-Appellants-Cross-Respondents.[†]

No. 2006AP2599.

Court of Appeals of Wisconsin.

December 4, 2007

Oral Argument Oct. 3, 2007.

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On behalf of the defendants-appellants-cross-respondents, the cause was submitted on the briefs of Michael B. Van Sicklen, Mark L. Langenfeld, and Matthew D. Lee of Foley & Lardner, LLP, of Milwaukee, with oral argument by Michael B. Van Sicklen.

On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of William M. Cannon , Sarah F. Kaas and Edward E. Robinson of Cannon & Dunphy, S.C., of Brookfield, with oral argument by William M. Cannon .

Before CURLEY, P.J., WEDEMEYER and FINE, JJ.

¶ 1 CURLEY, P.J.

Physicians Insurance Company of Wisconsin, Inc. and Matthew Lindemann, M.D. (collectively referred to as PIC), appeal the trial court's order reinstating the $200,000 award to Gregory Phelps (Gregory) for his emotional distress and permanent injuries caused as a result of witnessing the birth of his son, Adam, who died due to the negligence of Dr. Lindemann and St. Joseph's Hospital, as determined in a bench trial.1 Gregory, Marlene, Caroline,

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Adam's estate and Kyle Phelps cross-appeal the trial court's order finding that Dr. Lindemann was a “borrowed employee" of St. Joseph's Hospital. Because Dr. Lindemann was not a “borrowed employee" and the award for emotional distress was properly reinstated because the caps on damages contained in WIS. STAT. ch. 655 (1997-98) do not cover Dr. Lindemann's negligence, we affirm the reinstatement of emotional distress damages and reverse the ruling that Dr. Lindemann is a “borrowed employee." 2

I. BACKGROUND.

¶ 2 This appeal follows a remand from the supreme court to the trial court. The relevant facts found in the supreme court decision are set forth in this opinion. See Phelps v. Physicians Ins. Co. of Wis., 2005 WI 85, ¶¶ 5-13, 282 Wis.2d 69, 698 N.W.2d 643 (Phelps II ).

¶ 3 Marlene Phelps (Marlene) discovered that she was pregnant with twins in June 1998. Soon thereafter, she started bleeding and was successfully treated at St. Joseph's Hospital in Milwaukee. After that episode, she was placed on strict home bed rest.

¶ 4 Marlene's pregnancy progressed without incident until October 18, 1998, when another bleeding episode occurred. She was admitted to St. Joseph's Hospital and continued her program of bed rest. Two days later, an ultrasound revealed that one of the twins was a breech presentation (legs first). Based on this finding, Marlene was deemed a high-risk patient who required a c-section for delivery of the twins.

¶ 5 In the early morning of November 24, 1998, Marlene was awakened with constant suprapubic pain. The on-call resident, Dr. Matthew Lindemann, was contacted. Dr. Lindemann was an unlicensed first-year resident and, according to the trial court's findings of facts, was an employee of the Medical College of Wisconsin Affiliated Hospital (MCWAH). His primary duty was to assess and report findings and differential diagnoses to an upper-level senior resident or to the attending obstetrician. He had no authority, however, to provide primary obstetrical care or perform a c-section on Marlene.

¶ 6 Dr. Lindemann ordered lactated ringers to be administered at 2:40 a.m. for suspected contractions. They did not alleviate Marlene's pain. At 3:00 a.m., Dr. Lindemann reached a differential diagnosis of pubic symphysis pain, bladder pain, labor or placental abruption . Accordingly, he ordered a foley catheter to determine if Marlene had a bladder infection . The urinalysis returned at 3:50 a.m. indicated that she did not.

¶ 7 Due to the continued pain she was experiencing, Marlene requested at 4:15 a.m. that the attending nurse call Dr. Lindemann again. Fetal heart monitoring and an ultrasound established that the twins' heart rates were within normal ranges. Dr. Lindemann informed Marlene that he would take a picture of the ultrasound

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so that he could consult with an upper-level senior resident.

¶ 8 After this examination, Dr. Lindemann ordered a potent narcotic, Demerol , to be administered to Marlene at 4:50 a.m. and 5:20 a.m. Dr. Lindemann never satisfactorily explained his whereabouts between 4:15 a.m. and 6:00 a.m. However, there is no evidence that he ever contacted an upper-level senior resident to discuss Marlene's case.

¶ 9 Marlene remained in pain when Dr. Lindemann examined her again at 6:00 a.m. At 6:45 a.m., her husband Gregory arrived at the hospital. Marlene informed Gregory that she felt the need to defecate and asked for assistance to get to the commode. At 7:00 a.m., while sitting on the commode, she reached down and felt toes extending from her.

¶ 10 Her husband rushed to the nurses' desk where he found another doctor, who delivered Adam Phelps (Adam) at 7:20 a.m. Adam was immediately rushed to the neonatal intensive care unit where resuscitation efforts began. The efforts proved unsuccessful, and he was pronounced dead at 7:36 a.m. Adam's death was caused from a combination of asphyxia due to cord entrapment and placental abruption , which impaired his oxygen supply.

¶ 11 During this time, Marlene was rushed from her room to the operating room where anesthesia was administered at 7:30 a.m. The second twin, Kyle, was delivered at 7:43 a.m. Afterward, the treating physicians questioned Dr. Lindemann about his decisions, his whereabouts and his diagnosis. Dr. Lindemann's responses were primarily that he did not know or remember.

¶ 12 Marlene, Gregory and their two surviving children (the Phelpses) filed suit against Dr. Lindemann and his insurer, PIC. PIC filed an answer and demanded a jury trial. PIC, however, failed to pay the jury fee within the time required by the scheduling order. PIC sought to enlarge the time to pay the jury fee. The Phelpses opposed PIC's motion. The trial court refused to extend the time for the payment of the jury fees and the trial court held a bench trial.

¶ 13 At the conclusion of the lengthy trial, the trial court found that Dr. Lindemann and St. Joseph's Hospital were both causally negligent. Prior to trial, the trial court explained that because Dr. Lindemann was a first-year resident and unlicensed to practice medicine, he did not fall within the definition of a physician found in WIS. STAT. § 655.001(10m) ,3 and he was not entitled to the protection of chapter 655 of the statutes. As noted by this court in an earlier appeal, “The legislature has unambiguously declared that the cap on noneconomic damages in WIS. STAT. § 893.55(4)(b) applies only to those who are health-care providers under WIS. STAT. ch. 655, and to ‘employees of health care providers' as the phrase is further limited by § 893.55(4)(b) ." Phelps v. Physicians Ins. Co. of Wis., 2004 WI App 91, ¶ 45, 273 Wis.2d 667, 681 N.W.2d 571 (Phelps I ), rev'd on other grounds by Phelps II, 282 Wis.2d 69, 698 N.W.2d 643 .

¶ 14 The trial court concluded that Dr. Lindemann was negligent in his care and treatment of Marlene and Adam under both the standard of care applicable to a first-year resident and the standard of care of a practicing physician. Specifically, as a first-year...

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