Estate of Hegarty

• Citation: 2006 WI App 248,727 N.W.2d 857
• Decision Date: 10 October 2006
• Docket Number: No. 2004AP3252.,2004AP3252.
• Parties: ESTATE OF Sarah M. HEGARTY, Deceased, by Jeremiah J. HEGARTY, Special Administrator, Jeremiah J. Hegarty and Mary D. Hegarty, Plaintiffs-Respondents-Cross-Appellants, v. Angela BEAUCHAINE, M.D., Defendant-Appellant-Cross-Respondent,<SMALL><SUP>†</SUP></SMALL> OHIC Insurance Company, a Foreign Insurance Corporation, Defendant-Co-Appellant-Cross-Respondent.<SMALL><SUP>†</SUP></SMALL>
• Court: Court of Appeals of Wisconsin

727 N.W.2d 857

2006 WI App 248

ESTATE OF Sarah M. HEGARTY, Deceased, by Jeremiah J. HEGARTY, Special Administrator, Jeremiah J. Hegarty and Mary D. Hegarty, Plaintiffs-Respondents-Cross-Appellants, v. Angela BEAUCHAINE, M.D., Defendant-Appellant-Cross-Respondent,^† OHIC Insurance Company, a Foreign Insurance Corporation, Defendant-Co-Appellant-Cross-Respondent.^†

No. 2004AP3252.

Court of Appeals of Wisconsin.

Submitted on Briefs June 6, 2006.

Opinion Filed October 10, 2006.

On behalf of the defendants-appellants-cross-respondents, Angela Beauchaine and OHIC Insurance Company, the cause was submitted on the briefs of Patrick J. Knight and Kathryn A. Keppel of Gimbel, Reilly, Guerin & Brown of Milwaukee, and John S. Skilton, Christopher G. Hanewicz and Gabrielle E. Bina of Heller Ehrman L.L.P. of Madison.

On behalf of the defendant-co-appellant-cross-respondent, OHIC Insurance Company, the cause was submitted on the briefs of Emile H. Banks, Jr., and Vicki L. Arrowood of Emile Banks & Associates, L.L.C., of Milwaukee.

On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of William M. Cannon, Sarah F. Kaas and Edward E. Robinson of Cannon & Dunphy, of Brookfield.

Before FINE, CURLEY and NETTESHEIM, JJ.

¶ 1 CURLEY, J

This is an appeal and cross-appeal in a wrongful death and medical malpractice action following a jury verdict in favor of the Estate of Sarah M. Hegarty (Sarah) and her surviving parents, Jeremiah J. Hegarty and Mary D. Hegarty (collectively, the Hegartys), and against Dr. Angela Beauchaine, M.D., and her insurance company, OHIC Insurance Company (OHIC).

¶ 2 This case consists of: (1) an appeal by OHIC, from the judgment; jury verdict; all findings, rulings and orders made during pretrial proceedings, during trial and regarding post-verdict motions; (2) a combined appeal by OHIC and Dr. Beauchaine (collectively, Beauchaine/OHIC) from the judgment; jury verdict; all findings, rulings and orders made during pretrial proceedings, during trial and regarding post-verdict motions; and (3) a cross-appeal by the Hegartys from the judgment.

¶ 3 OHIC contends that: (1) the Wisconsin Patients Compensation Fund's (the Fund)¹ liability for negligence assessed against Dr. Beauchaine is triggered after OHIC's primary policy is exhausted; (2) the trial court erred with respect to the special verdict form in: (a) instructing the jury to answer the damage question only if it had answered "yes" to one or more of the preceding cause questions; (b) refusing to include a question inquiring as to whether Dr. Beauchaine was (i) a loaned or borrowed employee, (ii) conducting the business of a health care provider; (3) counsel for OHIC should not have been denied the right to participate in the trial (4) OHIC was entitled to copies of a settlement agreement that the plaintiffs entered into with settling defendants; and (5) the trial court erred in reading jury instructions on damages prior to the testimony of plaintiff Jeremiah Hegarty.

¶ 4 We conclude that the trial court did not err: (1) in granting declaratory judgment that the Fund's liability was not triggered until OHIC's primary and umbrella policies were exhausted; (2) with respect to the special verdict form in: (a) instructing the jury to answer the damage question only if it answered one or more of the preceding cause questions "yes"; (b) failing to include a question inquiring as to whether Dr. Beauchaine was (i) a loaned or borrowed employee, (ii) conducting the business of a health care provider; (3) in denying counsel for OHIC the right to participate at trial; and (4) in reading jury instructions on damages prior to the testimony of Jeremiah Hegarty, and affirm with respect to these issues raised in OHIC's appeal. We further conclude that the trial court erred in refusing to order production of the settlement agreement, and therefore reverse and remand this issue to the trial court and order the release of the agreement to OHIC.

¶ 5 Beauchaine/OHIC contend that: (1) the trial court erred in ruling that WIS. STAT. § 893.55(4) (2003-04)² did not apply to Dr. Beauchaine; (2) the trial court erred in permitting an uncapped pre-death award of loss of society and companionship damages to Sarah's parents because: (a) the Hegartys were not entitled to separate awards for pre — and post-death loss of society and companionship; (b) even if the Hegartys' pre-death loss of society and companionship claim was recoverable, it was capped by the wrongful death statute and WIS. STAT. § 898.55(4)(b); and (c) the Hegartys' pre-death claim was not recoverable because it was based upon their own pain and suffering; (3) the issue of Dr. Beauchaine's comparative fault was not fairly tried because the trial court erroneously: (a) excluded evidence regarding the causal negligence prior to March 20, 1996, (b) excluded evidence regarding possible negligence after 7:00 a.m. on March 21, 1996; and (c) excluded the testimony of Drs. Lewis and Kalt, and limited the testimony of Dr. Schmidt; (4) the trial court erroneously permitted Dr. Hagen to offer expert testimony; (5) the trial court erroneously excluded evidence relating to Dr. Beauchaine's employment file; (6) the trial court erroneously excluded the Medical College of Wisconsin (the Medical College) from the special verdict form; and (7) the trial court committed cumulative errors that necessitate a new trial in the interests of justice.

¶ 6 We conclude that the trial court did not err: (1) in ruling that WIS. STAT. § 893.55(4) did not apply to Dr. Beauchaine; (2) in permitting an uncapped pre-death award for loss of society and companionship to Sarah's parents because: (a) the Hegartys were entitled to separate pre — and post-death loss of society and companionship awards, (b) the Hegartys' pre-death loss of society and companionship claim is not capped by the wrongful death statute or § 893.55(4)(b), and (c) the Hegartys' pre-death claim is recoverable because it was not based upon their own pain and suffering; (3) in excluding evidence regarding the alleged causal negligence prior to March 20, 1996, excluding evidence regarding possible negligence after 7:00 a.m. on March 21, 1996, excluding the testimony of Drs. Lewis and Kalt, and limiting the testimony of Dr. Schmidt; (4) in permitting Dr. Hagen's testimony, because the court issued a curative instruction; (5) in excluding evidence relating to Dr. Beauchaine's employment file; and (6) in excluding the Medical College from the special verdict form. Because the trial court did not err, no new trial is required in the interests of justice. We therefore affirm with respect to the issues raised in Beauchaine/OHIC's appeal.

¶ 7 The Hegartys contend that: (1) the trial court erred in reducing the damage awards against Dr. Beauchaine and OHIC by 25%, representing the causal negligence attributed to dismissed party Dr. Stremski because, since Dr. Beauchaine and OHIC are jointly and severally liable for 100% of the damages, and the Hegartys' settlement agreement was not pursuant to a Pierringer³ release, Dr. Beauchaine and OHIC are entitled to a credit of only $840,046.33 — the amount they would be entitled to recover from Dr. Stremski in a contribution action; (2) the trial court erred in limiting the Hegartys' recovery of past medical expenses to the amount paid by involuntary plaintiff Milwaukee County, because WIS. STAT. § 893.55(7) has no application outside of WIS. STAT. ch. 655, and therefore does not apply to Dr. Beauchaine; and (3) the trial court erred in refusing to assess statutory interest against OHIC pursuant to WIS. STAT. § 628.46.

¶ 8 We conclude that the trial court did not err: (1) in limiting the Hegartys' recovery of past medical expenses to the amount paid by involuntary plaintiff Milwaukee County, because WIS. STAT. § 893.55(7) was properly applied, in light of the fact that Dr. Stremski was a WIS. STAT. ch. 655 health care provider; and (2) in refusing to assess statutory interest against OHIC pursuant to WIS. STAT. § 628.46, because the Hegartys do not satisfy the Kontowicz⁴ test, and therefore, affirm with regard to these issues raised in the Hegartys' cross-appeal. We further conclude that because the trial court erred in refusing to order production of the settlement agreement and we are ordering the production of the agreement, we must also reverse and remand to the trial court the issue of whether the trial court properly reduced the damage awards against Dr. Beauchaine and OHIC by 25%, to be determined based on the terms of the agreement, because at this time the Hegartys are estopped from making the claim in light of their refusal to release the settlement agreement.

I. BACKGROUND.

¶ 9 In 1992, at age twelve, Sarah became a patient of Dr. Mary Jo Zimmer, a pediatrician. In 1995, Sarah experienced abdominal pain and consulted Dr. Zimmer. Dr. Zimmer referred Sarah to a pediatric gastroenterologist at Children's Hospital of Milwaukee (Children's), who diagnosed Sarah with irritable bowel syndrome.

¶ 10 On March 20, 1996, Sarah was brought to the emergency room at Children's with severe abdominal pain. She was seen by Dr. Ernest Stremski, an emergency room physician who, after consulting with Dr. Balint, a pediatric gastroenterologist, and Dr. Zimmer, prescribed treatment and suggested sending Sarah home. At her father's insistence, Sarah was admitted to Children's.

¶ 11 Once admitted, Sarah was treated by Dr. Beauchaine. At the time, Dr. Beauchaine was an unlicensed first-year pediatric resident at Children's. She was enrolled in a medical training program at the Medical College and assigned to Children's through the Medical College and the Medical College of Wisconsin Affiliated Hospitals, Inc. (MCWAH), her specific employer.

¶ 12 Dr. Beauchaine, who treated Sarah until the following morning, diagnosed Sarah with constipation, did not conduct a surgical consultation, and called her a "whin...