Earl v. Kinziger
| Decision Date | 14 February 2022 |
| Docket Number | 20-cv-617-pp |
| Parties | DARYISE L. EARL, Plaintiff, v. STEVE R. KINZIGER, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER GRANTING DEFENDANT WISCONSIN INJURED PATIENTS AND FAMILIES COMPENSATION FUND'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 39), DISMISSING IT AS A DEFENDANT AND DENYYING AS MOOT THE PARTIES' JOINT MOTION TO DISMISS WISCONSIN INJURED PATIENTS AND FAMILIES COMPENSATION FUND (DKT. NO. 76)
Daryise L. Earl, who is incarcerated at Kettle Moraine Correctional Institution and who is representing himself, is proceeding under 42 U.S.C. §1983 on federal and state-law claims against dentists, dental hygienists and nurses at Kettle Moraine Correctional Institution. He also named as a defendant the Wisconsin Injured Patients and Families Compensation Fund (“the Fund”), asserting that it would pay damages on his state-law claims if those claims were successful. The Fund has moved for summary judgment. Dkt. No. 39. The plaintiff concedes that the Fund is entitled to judgment but opposes three of their proposed facts. Dkt No. 63. The Fund is entitled to judgment as a matter of law the court will grant summary judgment in its favor and dismiss the Fund as a defendant. The court will deny as moot the parties' subsequent joint motion to dismiss the fund. Dkt. No. 76.
The plaintiff filed this lawsuit on April 16, 2020. Dkt. No. 1. Four months later, before the court had screened the original complaint, the plaintiff filed an amended complaint. Dkt. No. 9. The court screened the amended complaint and allowed the plaintiff to proceed under federal and state law against several known and unknown defendants for failing to treat his abscessed tooth. Dkt. No. 11. The court did not allow the plaintiff to proceed against the Fund. Id. at 20. The court speculated that it appeared the plaintiff had “named this fund as a defendant because he believes he must do so in order to receive damages if he prevails.” Id. The court concluded that the Fund was not a proper defendant under §1983 and dismissed it. Id.
Two weeks later, the plaintiff moved for reconsideration and asked the court to reinstate the Fund as a defendant. Dkt. No. 13. The plaintiff noted that some of the defendants are nurses and asserted that, under state law, he could sue their employer or their employer's insurer. Id. at 1 (citing Wis.Stat. §655.23(5)). He cited cases supporting the proposition that under Chapter 655 of the Wisconsin Statutes, the Fund could be required to pay “‘the portion of a medical malpractice claim in excess of the $1 million dollar professional liability policy required for healthcare providers.'” Id. at 2 ().
The court granted the plaintiff's motion and reinstated the Fund as a defendant. Dkt. No. 16. The court observed that the Reifschneider decision provided that a plaintiff could “recover damages from the Fund only if he ha[d] named the Fund as a party in the case” Id. at 2 (citing Reifschneider, 2019 WL 1522065, at *1; and Wis.Stat. §655.27(5)(a)(1)). The court noted that the plaintiff was suing for compensatory damages totaling $1.2 million. Id. The court concluded that, “[i]f the plaintiff is successful on his state-law claims against the Doe defendants who are nurses, his damage award against each could be over the $1 million threshold.” Id. The court therefore agreed with the plaintiff that he could sue the Fund on his state-law claims “in the event the plaintiff is awarded damages in excess of the Doe defendants' insurance limit on those claims.” Id.
By that time, the Department of Justice had accepted service on behalf of defendants Steven Kinziger, Angelo Panos and Kwon Yang-all of whom it determined to be state employees. Dkt. No. 15. On June 14, 2021, the plaintiff identified the unknown, Doe defendants as Marissa Shier, [1] Lori Doehling, Julie Ludwig and Wisconsin's Self-Funded Property and Liability Program. Dkt. No. 35. He also identified two of the Doe defendants as Panos and Yang, against whom the court already had allowed him to proceed. Id. The court granted the plaintiff's motion to substitute Shier, Doehling, Ludwig and Wisconsin's Self-Funded Property and Liability Program in place of the Doe placeholder. Dkt. No. 53 at 2-3.
On June 29, 2021, the Fund filed the instant motion for summary judgment. Dkt. No. 39. The court received the plaintiff's response on September 22, 2021 (and, for reasons not relevant, deemed it timely). Dkt. No. 63. The Fund filed its reply brief on September 27, 2021. Dkt. No. 65.
On February 7, 2021, the parties filed a joint motion asking the court to dismiss the Fund. Dkt. No. 76. The motion indicated that the plaintiff no longer wished to pursue any claims against the Fund, that he had conceded that the Fund was entitled to summary judgment and that he did not wish to expend any more resources pursuing claims against the Fund (and that the court ought not have to expend its resources deciding the summary judgment motion). Id. at 1. By the time the court received this motion, it had substantially completed its ruling on the motion for summary judgment.
All the defendants are state employees who worked at Kettle Moraine Correctional Institution during the period covered by the amended complaint (June 2018 to March 2020). Dkt. No. 44 at ¶¶18-19. Kinziger, Panos and Yang are dentists; Shier is a dental hygienist; and Doehling and Ludwig are registered nurses. Id. at ¶¶2, 9, 11, 13, 17. Kettle Moraine Correctional Institution is owned by the State of Wisconsin and governed by the Wisconsin Department of Corrections. Id. at ¶20.
Ana Lopera is a claims manager for the Fund and Wisconsin's Insurance Commissioner's Office. Dkt. No. 42 at ¶1. In her declaration supporting the Fund's summary judgment motion, she explains that the Fund provides coverage only to Chapter 655 providers who comply with Chapter 655 by obtaining $1 million in underlying liability insurance, or obtaining approval for self-insurance in that amount, and paying Fund fees. Id. at ¶8 (citing Wis.Stat. §§655.23(4) and 655.27(1) and (3)). Lopera avers that dentists, dental hygienists and registered nurses are not “health care providers” under the terms of Chapter 655 and thus are not required to comply with the provisions of Chapter 655. Id. at ¶5. She explains that dentists, dental hygienists and registered nurses could be employees of a Chapter 655 health care provider. Id. at ¶6. But she clarifies that if the employer is a correctional facility, the correctional facility is exempt from Chapter 655. Id. She avers that the State of Wisconsin is not a health care provider under the terms of Chapter 655. Id. at ¶7 (citing Wis.Stat. §655.002).
Lopera avers that she checked the Office of the Commissioner of Insurance's list of Chapter 655 health care providers to determine whether any of the individual defendants were listed in the system as having complied with Chapter 655 or if they appeared in the system as Chapter 655 health care providers. Id. at ¶¶2-3.[2] Lopera avers that none of the defendants' names appeared as Chapter 655-compliant providers (which requires payment of Fund assessments and filing a certificate of insurance or self-insurance with the Insurance Commissioner's Office). Id. at ¶3. She also avers that none of the defendants appeared in the system as Chapter 655 health care providers. Id. She avers that Kettle Moraine Correctional Institution did not appear on the list as having complied with the provisions of Chapter 655 and was not listed as a Chapter 655 health care provider. Id. at ¶4.
Counsel for defendants Kinziger, Yang and Panos provided a declaration echoing much of what Lopera says. Dkt. No. 41. Counsel avers that none of the defendants complied with the requirements of Chapter 655 because none of them are “health care providers” under Chapter 655. Id. at ¶7 (citing Wis.Stat. §655.002). He says that, as a state-owned and -operated correctional facility, Kettle Moraine is a “public facility” under the terms of Wis.Stat. §655.003(2). Id. at ¶6. He avers that as such, Kettle Moraine is exempt from participating in Chapter 655 and that chapter's requirements. Id. He says Kettle Moraine did not comply with the requirements of Chapter 655 because it is exempt from doing so. Id. at ¶8 (citing Wis.Stat. §655.003(2)).
The Fund asserts in its proposed findings of fact that the plaintiff has not alleged malpractice claims against any of the defendants. Dkt. No. 44 at ¶23. It characterizes the plaintiff's claims as relating to dental care or to the management of the Health Services Unit, not to medical care. Id. at ¶¶15, 24.
The plaintiff concedes that the Fund's interpretation of the statute entitles the Fund to summary judgment. Dkt. No. 63 at 1. He disputes three of the Fund's proposed findings of fact. Id. First, he disagrees that his claims against the nurses related to the management of the Health Services Unit and not to medical care; he argues that his state-law claim against the nurses related to their failure to exercise ordinary care in delaying treatment for his dental issues. Id. at 3. Second, he disputes the Fund's assertion that he has stated no malpractice claims; the plaintiff argues that the claims in the amended complaint show a pattern of negligence and malpractice. Id. at 3-4. Third, the plaintiff disputes the Fund's assertion that his claims against the non-nurse defendants related to dental care and not medical care; he argues that there is no distinction between dental care and medical care and...
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