Dick v. Shawano Municipal Hospital

Decision Date27 June 1969
Docket NumberNo. 339,339
Citation43 Wis.2d 430,168 N.W.2d 824
PartiesKenneth DICK, Appellant, v. SHAWANO MUNICIPAL HOSPITAL a/k/a Shawano Community Hospital, et al., Respondents.
CourtWisconsin Supreme Court

On February 21, 1966, the plaintiff became ill while walking down a street in Keshena, Wisconsin, and was taken to his parents' home. They called an ambulance and he was taken to the Shawano Municipal Hospital. Dr. D. A. Jeffries, a physician then in attendance at the hospital, examined the plaintiff, diagnosed his condition as being drunk, administered sparine, telephoned the sheriff's office, informing the sheriff that the plaintiff was drunk. Undersheriff Carl L. Krueger respondend to the call, transported plaintiff to the county jail, charged him with being drunk. The next day he was tried in the county court on the charge of being drunk and sentenced to Waupun State Prison as a repeater. This conviction was set aside by this court because of absence of counsel at the time of trial. Plaintiff was not retried.

The complaint alleges causes of action for damages against Dr. D. A. Jeffries, the Shawano Municipal Hospital, Sheriff Fred Lemhouse and Undersheriff Carl L. Krueger. Demurrers to the complaint were entered on behalf of each defendant. From orders sustaining said demurrers, plaintiff appeals.

Jack J. Schumacher, Shawano, for appellant.

Jenswold, Studt, Hanson, Clark & Kaufman, Madison, for respondent hospital.

Welsh, Trowbridge, Bills, Planert & Gould, Green Bay, for Dr. Jeffries, Fred Lemhouse and Carl Krueger.

ROBERT W. HANSEN, Justice.

The complaint set forth causes of action against the hospital to which he was taken for treatment; the doctor who examined plaintiff at the hospital and diagnosed his condition as being drunk; the sheriff and the undersheriff who placed him under arrest on the charge of being drunk in a public place. Demurrers were filed by each defendant named.

The sheriff's demurrer was sustained. This is clearly an appealable order. The demurrers on behalf of the doctor and hospital were sustained but with an attached provision that plaintiff could file and serve an amended complaint within thirty days. To the extent that these orders were a granting of leave to amend pleadings, they would not be appealable. To the extent that such orders were a final disposition, the sustaining of a demurrer, they are appealable. On balance, giving weight to the fact that the option to replead was not exercised, we hold them to be appealable. Each of the three situations involved will be considered separately and analyzed sequentially.

AS TO THE DOCTOR

The complaint as a cause of action against the doctor stated: 'That the defendant, Dr. D. A. Jeffries, relayed confidential information without the consent of the plaintiff contrary to (Sec. 885.21, Wis.Stats.), and diagnosed the plaintiff's illness as being drunk when he was not drunk.'

On the demurrer to the complaint against the doctor, the trial court sustained the demurrer, providing, however, that plaintiff was given thirty days within which to serve and file an amended complaint alleging malpractice.

To understand what was done and why it was done the following colloquy between court and plaintiff's counsel, taken from the record, is material:

'THE COURT: * * * in order to have an incorrect diagnosis actionable it must be the direct result of injury complained of and the injury complained here of is not his going to Waupun. There is no injury that came to him as a result of the treatment or lack of treatment that I can see.'

'THE COURT: I believe because of the failure in that respect, that the complaint does not state a cause of action for damages as a result of an incorrect diagnosis.

'Now we come to the second cause of action for relaying confidential information. Well now, the brief points out with some force that the statute referred to, Sec. 885.21, is a rule of evidence. And it does not set forth any particular right that a breach of which would be actionable. The relaying of confidential information. I don't suppose you are relying particularly on that phase, so in that respect the court is of the opinion that it does not state a cause of action.

'You indicated by a shake of your head?'

'MR. SCHUMACHER: That's right.'

'THE COURT: Now the III, Other Causes of Action, and it states several points under that * * * The first item is Invasion of Privacy. You concede, Mr. Schumacher, there is no cause of action in Wisconsin for invasion of privacy?'

'MR. SCHUMACHER: That is correct.'

'THE COURT: So it is conceded that the complaint does not state a cause of action in that respect.'

'Next--Defamation of Character. Libel and Slander.'

'Are you making any claim there?'

'MR. SCHUMACHER: No.'

'THE COURT: Not necessary to further belabor the point in that respect. And the next--Malicious Prosecution. Are you claiming that?'

'MR. SCHUMACHER: The statute of limitations will have run on that.'

'THE COURT: As far as Dr. Jeffries, you make no claim to have a cause of action of malicious prosecution?'

'MR. SCHUMACHER: That is correct.'

'THE COURT: Those are the only points that are referred to here. Is there any other cause of action that you believe that has been set forth other than those addressed to the court by the defendant Jeffries in your complaint?'

'MR. SCHUMACHER: The court has indicated I have twenty days to amend my complaint.'

'MR. SCHUMACHER: I would like an opportunity to explore this further to determine whether or not I can come up with something * * * I would like, if the court agrees, that I be granted time to amend and if I can't find anything to amend, then I certainly am not going to waste your time or these attorneys' time or my time, but I would like permission to possibly amend as to Dr. Jeffries, if I find there is grounds to establish a cause of action.'

'THE COURT: Not on the grounds that you have already conceded do not exist?'

'MR. SCHUMACHER: That is correct.'

'THE COURT: Be merely with respect to the cause of action of incorrect diagnosis.'

'MR. SCHUMACHER: Correct.'

'THE COURT: * * * it seems to me that Mr. Schumacher is conceding that the only possible cause of action here against Dr. Jeffries is that with respect to malpractice although you do not designate it as such here, is that correct?'

'MR. SCHUMACHER: That is correct, Your Honor.'

'THE COURT: And the court will give you an equal time, same amount of time, twenty days, in which to file an amended complaint, setting forth the cause of action alleging malpractice, which you concede is the only cause of action that you could possibly bring against Dr. Jeffries; is that correct?'

'MR. SCHUMACHER: That is correct.'

'THE COURT: * * * It is the intent of the court that the twenty days begins to run today. That will give you adequate time, will it not?'

'MR. SCHUMACHER: Well, it would have to be. The reason I say that, I mean you could give me a little more time. Give me time to explore it.'

'THE COURT: Is there objection on the part of either counsel to give him thirty days instead of twenty days?'

'MR. JENSWOLD: Thirty days from today.'

'MR. SCHUMACHER: That would be fine. If I can't come up with it then that will be it. I will explore this. If I feel I haven't got anything, I will contact the court by letter and the respective attorneys.'

'THE COURT: And make a motion to dismiss?' 'MR. SCHUMACHER: Dismiss.'

The inquiries by the court and responses by plaintiff's counsel clearly reveal that the imperfections of the complaint in stating a cause of action against the doctor were conceded by plaintiff's counsel. He did not urge that the complaint be sustained as against the challenge of the demurrer. He agreed with the trial court that the cause of action based on incorrect diagnosis was in fact a cause of action for malpractice which had not been correctly pleaded. So it was plaintiff's counsel who requested that time be allowed to draft, serve and file an amended complaint, to be

limited to the claim of malpractice based on incorrectness of diagnosis. He further stated that he would not waste the time of court, opposing counsel or himself by filing such amended complaint if he could not 'find anything to amend' and would, if this were the case, move to dismiss as to the doctor. This record puts plaintiff in no position to seek reversal of the court order agreed to and, in fact, requested by his counsel. The full colloquy, from which the above portions are excerpted, gives no reason to demur to the agreement of plaintiff's counsel and court that malpractice, based on incorrect diagnosis, was the only ground on which plaintiff[43 Wis.2d 437] could stand in seeking redress against the doctor. The order of the trial court as to the doctor merely implemented the conclusion jointly reached by the court and plaintiff's counsel. In fact, the leave to amend, and the time period allotted to do so, were requested by plaintiff's counsel. Such requested order remains appealable, but there is no basis on this record why it should be reversed.

AS TO THE HOSPITAL

The complaint, as the cause of action against the hospital alleged: 'That by reason of the foregoing facts, the plaintiff was denied public accommodation by the Shawano Community hospital contrary to (Sec. 943.04 Wis.Stats.)' This statute, actually Sec. 942.04, Stats., provides that whoever denies to another the full and equal enjoyment of any public place of accommodation because of race, color, creed, national original, or ancestry may be fined not more than $200 and imprisoned not more than six months. Sub. (4) creates a cause of action in favor of an aggrieved person. The complaint specifically alleges that the doctor '* * * determined that because the plaintiff was Indian that he was drunk when in fact he was not * * *' The complaint sets forth that the plaintiff '* * * is an American Indian over twenty-one years of age * * *'

As with the demurrer to the cause of...

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2 cases
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    ...or not the order sustaining the demurrer allows time to serve an amended complaint. This court, in Dick v. Shawano Municipal Hospital (1969), 43 Wis.2d 430, 433, 168 N.W.2d 824, 825 '. . . The demurrers on behalf of the doctor and hospital were sustained but with an attached provision that ......
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