Ande v. Rock, 01-1009.
| Citation | 647 N.W.2d 265,2002 WI App 136,256 Wis.2d 365 |
| Decision Date | 16 May 2002 |
| Docket Number | No. 01-1009.,01-1009. |
| Parties | Linda A. ANDE, Charles Ande, C.E.A., a minor, and C.L.A., a minor, Plaintiffs-Appellants, v. Michael ROCK, Norman C. Fost, Philip M. Farrell, Elaine H. Mischler, Richard A. Aronson, and Anita Laxova, Defendants-Respondents, UW HOSPITAL AND CLINICS, UW Medical School, Wisconsin Department of Health & Social Services, Medical College of Wisconsin-Milwaukee, Wisconsin State Laboratory of Hygiene, State of Wisconsin, Ronald Laessig, Karen Keil, M. Cotler, C. Kelly, S. Allard, Ellen Connor, David B. Allen, E. Connor, Tom Murwin, L. Reimann, Gordon Tuffli, Gurbax Sekhom, Michael R. Kosorok, Rebecca E. Koscik, Mark Splaingard, C. Green, M. Palta, A. Tluczek, M. Block, L. A. Davis, B. S. Wilfond, W. Gershan, L. Rusakow, G. Hoffman, D. J. Hassemer, John Doe, Jane Doe, XYZ Funding Agency, Connecticut General Life Insurance Company, ABC Insurance Company, and Unity Health Plans, Defendants. |
| Court | Court of Appeals of Wisconsin |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Paul A. Kinne and Michael J. Luebke of Gingras, Cates & Luebke, S.C. of Madison.
On behalf of the defendant-respondent Richard A. Aronson, the cause was submitted on the brief of Kristine A. Edwards and Marie A. Stanton of Hurley, Burish & Milliken, S.C. of Madison.
On behalf of the defendants-respondents Michael Rock, Norman C. Fost, Philip M. Farrell, Elaine H. Mischler, and Anita Laxova, the cause was submitted on the brief of James E. Doyle, attorney general and John J. Glinski, assistant attorney general.
Before Dykman, Roggensack and Deininger, JJ.
¶ 1.
Linda A. Ande, Charles Ande and their minor children, C.E.A. and C.L.A. who suffer from cystic fibrosis, brought suit against individual defendants, all of whom are state employees, and certain institutions alleging numerous state and federal claims related to the children's cystic fibrosis. The circuit court dismissed all of the state claims, except those for medical malpractice, after concluding that notice pursuant to WIS. STAT. § 893.82(3) (1995-96)2 for those state claims had not been timely given. In regard to the medical malpractice claims, the circuit court dismissed them because there was no showing of a physician-patient relationship between the remaining physician-defendants and any plaintiff.3 The circuit court also dismissed the federal claims, doing so on the basis of qualified immunity because the plaintiffs had not shown that any plaintiff had a clearly established right that any defendant's conduct violated. On appeal, the plaintiffs do not contest the circuit court's decision on the lack of timely notice under § 893.82(3). Plaintiffs bring before us for review only their claims for medical malpractice and their federal claims. Because we conclude that plaintiffs have made no showing of a physician-patient relationship with any remaining defendant, which relationship is necessary to support a medical malpractice claim, and that plaintiffs have made no showing of a clearly established state property right or a clearly established state or federal liberty interest that any named defendant's conduct violated, we affirm the judgment and order of the circuit court.
¶ 2. C.E.A. was born to Linda and Charles Ande on July 13, 1993. There was then ongoing a cystic fibrosis research project which had begun in 1985. Philip Farrell and Norman Fost were the co-investigators. To test for the presence of factors indicative of cystic fibrosis, the study used excess blood that had been drawn from all newborns to conduct statutorily required tests for the presence of other congenital and metabolic disorders. The research protocol required that the parents of half of the newborns in the study were told if their child tested positive for cystic fibrosis. A nutritional plan was made available to them immediately, as it was the researchers' theory that treating the nutritional needs of children with cystic fibrosis before they became symptomatic would result in a less vigorous development of the disease with fewer impairments to overall health. The other half of the children who were tested were placed in the "blinded control" group. Their parents and their treating physicians were not told if they had tested positive for factors indicative of cystic fibrosis. C.E.A. was placed in the blinded group, and therefore, her parents and her primary physician, Dr. Amy Plumb, were not told that she had tested positive.
¶ 3. Prior to testing the blood of newborns for cystic fibrosis, a pamphlet was prepared that told about the different tests that were required to be completed on newborns' blood. It also told of the cystic fibrosis test that would be run as part of a research project. It described the dangers of cystic fibrosis and stated that cystic fibrosis was an inherited disorder. The pamphlet also arguably implied that positive test results would be reported to the infant's physician, and a phone number was listed for parents who wanted additional information about the test.4 There is no assertion that the Andes were asked for or gave specific, written consent to have the cystic fibrosis test run on C.E.A. or to have the results of that test go unreported to them.
¶ 4. Subsequent to birth, C.E.A. had difficulties thriving. On June 23, 1995, when C.E.A. was almost two years old, she was diagnosed with cystic fibrosis. At the time that the Andes learned that C.E.A. had cystic fibrosis, Linda Ande was pregnant with a second child. The Andes' second child, C.L.A., is also afflicted with cystic fibrosis.
¶ 5. In this lawsuit, the Andes' allegations may be summarized into the assertion that the defendants committed three wrongful acts that give rise to the Andes' various claims: (1) The cystic fibrosis test was run without their informed consent; (2) treatment was withheld from C.E.A. when the investigators had knowledge that nutritional treatment would reduce the severity of her cystic fibrosis; and (3) C.E.A.'s test results were withheld from them. They allege to have been harmed by these acts in two ways: (1) If they had been given the test results, they would have accepted treatment for C.E.A. to lessen the severity of the progression of her illness; and (2) if they had been given the test results, they would not have conceived C.L.A. They do not identify any harm they suffered from the alleged lack of informed consent to run the test in the first instance.
¶ 6. In response, the defendants assert that they did not test C.E.A.'s blood without the Andes' knowledge and consent. They also contend that although all the children in the blinded control group were tested as newborns, no one reviewed the test results for the control group, some of which were negative and some of which were positive for factors indicative of cystic fibrosis. Therefore, the defendants contend they did not withhold information from the Andes.5 The defendants also raised many affirmative defenses, including failure to state a claim and qualified immunity.
¶ 7. After some discovery had been completed, the defendants moved for summary judgment, which the circuit court granted. It concluded that the plaintiffs gave WIS. STAT. § 893.82(3) notice too late to preserve their state claims, except for medical malpractice,6 and that the Andes' medical malpractice claims could not proceed because none of the remaining defendants had a physician-patient relationship with any plaintiff. The circuit court also dismissed plaintiffs' federal claims on the basis of qualified immunity. The plaintiffs moved for reconsideration and the circuit court denied their motion. The plaintiffs appeal only the dismissal of their medical malpractice claims and their federal claims.
Standard of Review.
[1]
¶ 8. It is well established that we apply the same summary judgment methodology as the circuit court. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). We first examine the complaint to determine whether it states a claim,7 and then we review the answer to determine whether it joins a material issue of fact or law. Id. If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute which entitle the opposing party to a trial. Id.
[2]
¶ 9. Whether the Andes have shown the existence and deprivation of a clearly established right by citing "closely analogous" cases that would give a reasonable public official notice that his or her actions clearly violated a right protected by the United States Constitution or by a federal statute is also a question of law. See Hunter v. Bryant, 502 U.S. 224, 227-28 (1991) (per curiam)
; Burkes v. Klauser, 185 Wis. 2d 308, 327-32, 338-39, 517 N.W.2d 503, 511-13, 516 (1994).
Medical Malpractice.
99 Wis. 2d 708, 301 N.W.2d 156 (1981). Whether a suit for malpractice will lie against a specific physician depends upon whether there is a physician-patient relationship between that physician and the complainant. See, e.g., Froh v. Milwaukee Med. Clinic, S.C., 85 Wis. 2d 308, 311, 270 N.W.2d 83, 84 (Ct. App. 1978). A physician-patient relationship is a trust relationship, created when professional services are provided by a physician and accepted by a patient. See Brown v. Dibbell, 227 Wis. 2d 28, 46-47, 595 N.W.2d 358, 368 (1999). Only a physician ...
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