Burks v. St. Joseph's Hospital

Decision Date08 July 1999
Docket NumberNo. 97-0466.,97-0466.
Citation227 Wis.2d 811,596 N.W.2d 391
PartiesShemika A. BURKS, and PrimeCare Health Plan, Inc., Plaintiffs, v. ST. JOSEPH'S HOSPITAL, Defendant-Appellant, WISCONSIN PATIENTS COMPENSATION FUND, Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

For the defendant-respondent-petitioner there were briefs by Paul J. Kelly, Linda V. Meagher and Schellinger & Doyle, S.C., Brookfield and oral argument by Linda V. Meagher.

For the defendant-appellant there was a brief by Mary K. Wolverton & Peter F. Mullaney and Peterson, Johnson & Murray, S.C., Milwaukee and oral argument by Peter F. Mullaney.


The Wisconsin Patients Compensation Fund (Fund) seeks review of an unpublished court of appeals decision1 reversing the circuit court's conclusion that the Fund does not provide coverage for violations of the federal Emergency Medical Treatment and Active Labor Act (EMTALA).2 The issue presented is whether the Fund is required to provide excess coverage for damages resulting from a hospital's refusal or failure to provide medical treatment to a severely premature infant, an alleged violation of EMTALA.


¶ 2. On April 1, 1993, Shemika A. Burks (Burks) arrived at the emergency room of St. Joseph's Hospital in Milwaukee, complaining of cramps and contractions.3 The time was approximately 6:40 a.m. Burks was about 22 weeks pregnant and not expecting to deliver until August 10, 1993, almost 19 weeks later.

¶ 3. One hour after she arrived, Burks gave birth to a baby daughter, Comelethaa, who weighed only 200 grams (approximately 7 oz.) and measured 11 inches long. The baby died at 10:15 a.m., two and a half hours after delivery.

¶ 4. In a subsequent lawsuit against the hospital, Burks alleged that her daughter was breathing and had a heartbeat at birth. She claimed the hospital staff denied her requests for medical assistance to the infant after birth and that the baby died in her arms.

¶ 5. St. Joseph's Hospital contended that it would not have been appropriate to resuscitate such a severely premature baby. In an affidavit filed later in the circuit court, Dr. Karlo Raab, a neonatologist at St. Joseph's Hospital, stated that "no attempt was made to resuscitate Shemika Burks' fetus" and that "resuscitation was not medically indicated for Shemika Burks' fetus and in fact is medically inappropriate for any fetus weighing 200 grams."


¶ 6. On March 30, 1995, Burks and her health insurer, PrimeCare Health Plan, Inc., filed a complaint against St. Joseph's Hospital and the Wisconsin Patient Compensation Fund (Fund) in Milwaukee County Circuit Court. The complaint alleged three causes of action. First, Burks alleged that St. Joseph's Hospital, acting through its agents and employees, and vicariously through its staff physicians, was negligent in caring for her daughter. Second, Burks accused the hospital of negligent infliction of emotional distress. Third, Burks asserted a violation by the hospital of EMTALA by "refusing to provide treatment" for the baby, especially for refusing to resuscitate her.

¶ 7. On September 17, 1996, the Fund filed a motion for partial summary judgment, asking the circuit court to excuse the Fund from any liability for excess coverage on the third cause of action regarding EMTALA because the EMTALA claim was not a medical malpractice claim. The court heard the Fund's motion on October 21, 1996, and on November 19, 1996, it issued a written decision which granted the motion.

¶ 8. Following the court's written decision, the parties entered into a stipulation and order for partial dismissal, which dismissed the first two causes of action in the complaint. Thereafter, the only claim that remained was the EMTALA claim against the hospital.

¶ 9. Because the circuit court had previously granted the Fund's motion for partial summary judgment determining that the Fund did not provide coverage for EMTALA violations, the Fund submitted an order for judgment and judgment to the court, asking that the Fund be dismissed entirely from the case. The order for judgment and judgment were both entered on January 21, 1997. St. Joseph's Hospital filed a Notice of Appeal from a final judgment on February 10, 1997.

¶ 10. The court of appeals reversed the decision of the circuit court and concluded that the Fund must provide coverage for EMTALA violations. The majority opinion, authored by Judge Charles Schudson, relied primarily on Wis. Admin. Code § Ins 17.35(2)(a) which requires that a health care liability insurance policy include "[c]overage for providing or failing to provide health care services to a patient." Because the cause of action regarding a violation of EMTALA alleged that St. Joseph's Hospital failed to provide certain health care services to a patient, the court of appeals determined that such a violation should be covered by the Fund.

¶ 11. Judge Schudson also wrote a concurring and dissenting opinion, signaling that the issue was close and difficult. He stated that McEvoy v. Group Health Cooperative, 213 Wis. 2d 507, 570 N.W.2d 397 (1997), was the controlling authority. Judge Schudson argued that in McEvoy this court stated that chapter 655, the chapter under which the Fund operates, covers only medical malpractice claims. Because the remaining claim was for a violation of EMTALA, not a medical malpractice claim, the concurring/dissenting opinion would have affirmed the circuit court's entry of judgment in favor of the Fund.

¶ 12. We granted the Fund's petition for review to consider whether the Fund is required to provide excess coverage for damages resulting from a hospital's refusal or failure to provide care to a severely premature infant, an alleged violation of the EMTALA statute.


¶ 13. We begin with a review of the state and federal statutory provisions at issue in this case.

¶ 14. The Wisconsin legislature created the Wisconsin Patients Compensation Fund in 1975. § 9, chapter 37, Laws of 1975.4 The Fund was created "for the purpose of paying that portion of a medical malpractice claim which is in excess of the limits expressed in s. 655.23(4)5 or the maximum liability limit for which the health care provider is insured, whichever limit is greater ..." Wis. Stat. § 655.27(1). In other words, "Chapter 655 created the Fund to curb the rising costs of health care by financing part of the liability incurred by health care providers as a result of medical malpractice claims." Patients Compensation Fund v. Lutheran Hospital-LaCrosse, Inc., 223 Wis. 2d 439, 452, 588 N.W.2d 35 (1999). It is the responsibility of the health care provider to provide coverage for medical malpractice claims up to the amounts set out in § 655.23(4) through its own health care liability insurance, self-insurance, or a cash or surety bond.

¶ 15. Congress enacted EMTALA as part of the Comprehensive Omnibus Budget Reconciliation Act of 1985 (COBRA) to prevent "patient dumping"—i.e., refusing medical treatment or transferring indigent and uninsured patients from private to public hospitals to avoid the costs of treatment. Marshall on Behalf of Marshall v. East Carroll Parish Hosp. Service Dist., 134 F.3d 319, 322 (5th Cir. 1998). EMTALA provides that hospitals that have entered into Medicare provider agreements6 are prohibited from inappropriately transferring or refusing to provide medical care to "any individual" with an emergency medical condition. 42 U.S.C. § 1395dd(a).7 It "places obligations of screening and stabilization upon hospitals and emergency rooms who receive patients suffering from an `emergency medical condition.'" Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999) (per curiam).

¶ 16. Under EMTALA, hospitals with emergency departments that have entered into Medicare provider agreements have two obligations. First, if any individual comes to the emergency department requesting examination or treatment, a hospital must provide for "an appropriate medical screening examination within the capability of the hospital's emergency department." 42 U.S.C. § 1395dd(a). Second, if the hospital "determines that the individual has an emergency medical condition," it must provide "within the staff and facilities available at the hospital" for "such treatment as may be required to stabilize the medical condition" and may not transfer such a patient until the condition is stabilized or other statutory criteria are fulfilled. 42 U.S.C. §§ 1395dd(b),8 (c).9 ¶ 17. A person who "suffers personal harm as a direct result" of a hospital's failure to meet the requirements under EMTALA may bring a civil action seeking damages and appropriate equitable relief against the participating hospital. 42 U.S.C. § 1395dd(d)(2)(A).

¶ 18. The relationship between chapter 655 and EMTALA presents an important issue for this court. To what extent do these two statutes intersect? To what extent, if any, does a federal EMTALA claim come under Wisconsin's Patient Compensation Fund, so that the Fund is required to pay excess liability for an EMTALA violation?

¶ 19. The Fund asserts that its coverage is limited to medical malpractice claims and that a tort claim for medical malpractice under state law is separate and distinct from an EMTALA claim grounded in federal statute. Consequently, the Fund argues that it has absolutely no responsibility to cover any EMTALA violation.

¶ 20. The Fund cites McEvoy v. Group Health Coop. of Eau Claire, 213 Wis. 2d 507, 570 N.W.2d 397 (1997), to support its position. In McEvoy, this court examined the scope and application of chapter 655 to determine whether the chapter precluded Fund coverage for a "bad faith" tort claim against an HMO. In holding that such a claim was precluded, this court said that "an examination of the language of chapter 655 reveals that the legislature did not intend to go beyond regulating claims for medical malpractice."...

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