Boles by McKinney v. Milwaukee County

• Decision Date: 11 May 1989
• Docket Number: No. 88-1185,88-1185
• Citation: 150 Wis.2d 801,443 N.W.2d 679
• Parties: Stacy BOLES, Jeimale Allen, and Cresha Riley, minors by their legal guardian, Earlean McKINNEY, Plaintiffs-Respondents, v. MILWAUKEE COUNTY, a municipal corporation, Defendant-Appellant.d
• Court: Wisconsin Court of Appeals

Page 679

443 N.W.2d 679

150 Wis.2d 801

Stacy BOLES, Jeimale Allen, and Cresha Riley, minors by

their legal guardian, Earlean McKINNEY, Plaintiffs-Respondents, v. MILWAUKEE COUNTY, a municipal corporation, Defendant-Appellant.d

No. 88-1185.

Court of Appeals of Wisconsin.

Submitted on Briefs March 8, 1989.

Opinion Released May 11, 1989.

Opinion Filed May 11, 1989.

[150 Wis.2d 805] Milwaukee County Corp. Counsel, on the briefs, with Robert A. McKnight, Principal Asst. Corp. Counsel, of counsel, Milwaukee, for defendant-appellant.

Mulcahy & Wherry, S.C., on the briefs, with Alyson K. Sloan, of counsel, Milwaukee, for plaintiffs-respondents.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

SULLIVAN, Judge.

Milwaukee County (County) appeals from a judgment awarding damages to the minor children of the late Dorothy J. Boles (Boles) for its negligence in the care accorded her during the one hour and forty-two minutes she was at the Milwaukee County Medical Complex (Complex) emergency room. A jury found that the County was 100% at fault for Boles' instantaneous death after she left the Complex.

The salient facts are undisputed. Boles, born January 28, 1958, had a history of mental illness. In the afternoon of December 3, 1983, she was stricken with an acute episode. Her older sister, Audrey Laster (Laster) had stopped at Boles' home to pick her up for a shopping trip. After Laster observed Boles drop a telephone, recite "Jesus saves, Jesus saves" and strike herself repeatedly on the chest, Laster called a Paratech ambulance which conveyed Boles to the Complex. Laster followed in her own car. At the Complex, Laster signed an authorization and consent for emergency services for her sister and for release of information to any hospital or doctor for continued care. Laster remained in a nearby waiting room. She had Boles' coat, purse and wig. Boles was admitted to the emergency room at 2:25 p.m. and recorded as discharged at 4:15 p.m. She left at approximately 4:07 p.m.

An entry into the hospital record by registered nurse Barbara Buettner recites that Boles told the hospital employees that they were not gods. Boles then attempted to stand upon an emergency room cart, but quieted down when security officers were called. Boles was placed in four-point soft restraints. When Boles slid down to the end of the cart, a chest restraint was applied. At 2:50 p.m., Boles told Nurse Buettner that she was "alright now" and wanted to return home. Nurse Buettner told Boles that it would be a good idea for her to stay and talk with a psychiatrist.

At 3:10 p.m., Dr. Theodore J. Galvani, Jr., a resident in emergency medicine, examined Boles. Dr. Galvani testified that in his opinion Boles was a danger to herself. Dr. Galvani's final diagnosis was "paranoid schizophrenic exacerbation." He ordered psychiatric consultation and telephoned the psychiatrist resident about the case. By the time the psychiatrist arrived, 4:15 p.m., Boles had left. Boles was last seen by Nurse Donna Manhardt (Manhardt) at 3:20 p.m. At that time, Nurse Manhardt noted that Boles was resting quietly in full soft restraints.

Two security officers were on duty when Boles left the hospital. Neither of them had an independent recollection of her departure. However, the entries in their notebooks indicate that Boles was either observed or escorted from the main information desk of the Complex to a public bus at 4:07 p.m.

At 5:40 p.m., Boles was pronounced dead on arrival at St. Mary's Hospital. She had been shouting at cars and hitting them with her hands near 1359 North Lincoln Memorial Drive, in Milwaukee. Boles was struck and killed by an automobile, when she ran into the roadway. She sustained multiple injuries, including broken legs and a fractured neck. The death certificate listed the cause of death as cervical vertebral fractures with hemothorax.

NEGLIGENCE

The County argues that Dr. Galvani and the Complex staff had no authority to detain Boles, and that Chapter 51, Stats., provides the only vehicle to forcibly detain a mentally ill individual. ¹ The County also notes that a voluntary commitment to a treatment facility is available only upon approval of the treatment director after certain criteria have been fulfilled. ² The County contends that neither of these alternatives were available to the Complex emergency room staff, and therefore Dr. Galvani, the nursing staff, and the security officers had no duty to prevent Boles' departure.

We disagree. The issue is not whether Boles was a fit subject for involuntary commitment or whether she met the criteria for voluntary commitment. The issue is whether the Complex, in the administration of its emergency room, violated a duty of care to Boles. See Payne v. Milwaukee Sanitarium Found., Inc., 81 Wis.2d 264, 272, 260 N.W.2d 386, 390 (1977). Upon Boles' admission to the Complex, its duty to her was one of ordinary care under the circumstances. See id. "The general rule is that a hospital must in the care of its patients exercise such ordinary care and attention for their safety as their mental and physical condition, known or should have been known, may require." Cramer v. Theda Clark Memorial Hosp., 45 Wis.2d 147, 149, 172 N.W.2d 427, 428 (1969).

In Pamperin v. Trinity Memorial Hospital, 144 Wis.2d 188, 423 N.W.2d 848 (1988), the supreme court held that a hospital was liable for the negligence of an emergency room physician who was an independent contractor, since the hospital had apparent authority over the physician. There the supreme court held that the care to which the patient is entitled "consists of both direct care and support services." Id. at 193, 423 N.W.2d at 850. The question therefore is whether Dr. Galvani and his supporting staff exercised ordinary care to Boles under the circumstances presented. See Payne, 81 Wis.2d at 272, 260 N.W.2d at 390 (1977).

The jury found the County negligent as to the care, safety and attention provided Boles. On appeal, the County does not directly assail this finding. It is undisputed that after his examination, Dr. Galvani requested a psychiatric evaluation for Boles and requested nurses' observation of her. He was satisfied that she should remain in restraints. We are convinced that credible evidence supports the jury's finding because the Complex failed to monitor or restrain Boles until she could be examined by the resident psychiatrist.

It also failed to observe her, ³ and to request Laster to remain with her. We confirm a verdict which is supported by credible evidence, particularly where it enjoys trial court approval. Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984).

EVIDENCE

The County argues that the trial court erred in admitting expert opinion evidence tending to establish its negligence. The County asserts that the trial court abused its discretion in denying its motion to suppress the testimony of Marshall Segal, M.D. and a video deposition of Mark Olsky, M.D., both of whom qualified as experts in emergency medicine. Drs. Segal and Olsky both testified to the duty of the emergency physician and supporting staff to protect the emergency patient until the patient is placed in the care of those who can take necessary action. The County's position is that the alleged negligent failure to apply restraints properly did not require exposition by experts. See Cramer, 45 Wis.2d at 150, 172 N.W.2d at 428 (1969) (expert testimony unnecessary for ministerial or routine care in a hospital).

However, in its postverdict motions for a new trial, the County failed to specify this alleged error. In Wells v. Dairyland Mut. Ins. Co., 274 Wis. 505, 518, 80 N.W.2d 380, 387 (1957), the supreme court stated:

We deem the correct rule to be that no error of the court should be reviewable as a matter of right on appeal without first moving in the trial court for a new trial bottomed on such error, if the error is of a category that a trial court could correct by granting a new trial. [Emphasis in original].

Admission of the experts' testimony was of a category which could be corrected by the trial court grant of a new trial. We decline to entertain the argument.

INSTRUCTIONS

The trial court charged the jury with respect to Boles' duty of care for her own safety. The court said:

In this case, evidence has been received that Dorothy Boles at the time of the accident that caused her death on December 3, 1983 was mentally ill. It is the law that a person who is mentally ill may be held to the same standard of care as one who has normal mentality. However, the plaintiffs have denied that Dorothy Boles failed to exercise ordinary care for her own safety on the ground that, without prior warning, Dorothy Boles was subjected to an illness that affected her ability to understand and appreciate her duty to exercise ordinary care for her own safety.

The law of Wisconsin is that where an individual through unexpected illness commits an act or omits a precaution which would otherwise constitute negligence, such act or omission is not negligence if the occurrence of such illness was not preceded by sufficient warning that a person of ordinary intelligence and prudence ought reasonably to foresee that his or her actions would subject a person to an unreasonable risk of injury.

However, when the occurrence of such illness should have been reasonably foreseen, then the person so disabled may be found negligent--may be be [sic] found negligent if such person should reasonably have foreseen that such illness would occur and effect [sic] her as to her own safety.

The trial court tailored Wis J I--Civil, secs. 1021 and 1021.2 to make it expositive of Boles' negligence and her duty of care to herself. ⁴ The County insists that the charge relating to an unexpected illness has no basis in the record and effectively exonerated Boles from the consequences of her own negligence. The County argues that because the evidence conclusively shows that...