Estate of Wells by Jeske v. Mount Sinai Medical Center

• Decision Date: 25 May 1994
• Docket Number: No. 92-0186,92-0186
• Citation: 183 Wis.2d 667,515 N.W.2d 705
• Parties: The ESTATE OF Mary WELLS, by her personal representative/administratrix, Charlotte JESKE, Plaintiff, Charlotte Jeske, Plaintiff-Appellant-Petitioner, v. MOUNT SINAI MEDICAL CENTER, n/k/a Sinai Samaritan Medical Center and/or Aurora Health Care, Mount Sinai Campus, Daniel Wartinbee, M.D., Milwaukee Orthopaedic Group, Ltd., Wisconsin Health Care Liability Insurance Plan and The Professional Insurance Company of Ohio, and Wisconsin Patients' Compensation Fund, Defendants-Respondents, E.J. Huxley, M.D., Pulmonary Medicine Associates of Milwaukee, The Medical Protective Company and Milwaukee County Department of Health and Human Services, Defendants.
• Court: Wisconsin Supreme Court

Page 705

515 N.W.2d 705

183 Wis.2d 667

The ESTATE OF Mary WELLS, by her personal representative/administratrix, Charlotte JESKE, Plaintiff Charlotte Jeske, Plaintiff-Appellant-Petitioner, v. MOUNT SINAI MEDICAL CENTER, n/k/a Sinai Samaritan Medical Center and/or Aurora Health Care, Mount Sinai Campus, Daniel Wartinbee, M.D., Milwaukee Orthopaedic Group, Ltd. Wisconsin Health Care Liability Insurance Plan and The Professional Insurance Company of Ohio, and Wisconsin Patients' Compensation Fund, Defendants-Respondents E.J. Huxley, M.D., Pulmonary Medicine Associates of Milwaukee, The Medical Protective Company and Milwaukee County Department of Health and Human Services, Defendants.

No. 92-0186.

Supreme Court of Wisconsin.

Argued Jan. 7, 1994.

Decided May 25, 1994.

For the defendants-respondents there were briefs by Mary Lee Ratzel, Jan M. Schroeder and Peterson, Johnson & Murray, S.C., Milwaukee, James M. Fergal, Linda Vogt Meagher and Schellinger & Doyle, S.C., Brookfield, Wayne Van Ert, Peter D. Alberg and Otjen, Van Ert, Stangle, Lieb and Weir, S.C. and oral argument by Mary K. Wolverton, Milwaukee, James M. Fergal, Brookfield, and Peter D. Alberg, Milwaukee.

WILCOX, Justice.

The issue on review is whether a parent can recover for loss of the society and companionship of an adult child whose injuries allegedly resulted from medical malpractice. The court of appeals, believing that a parent's cause of action for lost society and companionship was limited to minor children, upheld the trial court's order granting defendants' motion for summary judgment. ¹ We affirm.

These are the facts. Mary Wells (Wells) was diagnosed as having multiple sclerosis when she was 21 years old. By age 30, her disease steadily progressing, Wells was admitted to the Sage Nursing Home.

In December of 1986, when she was 34 years old, Wells underwent surgery to release hip contractures. During the course of a post-surgical treatment session at Mount Sinai Medical Center on January 4, 1987, she unexpectedly suffered respiratory arrest. The causes of this arrest, as well as the degree to which the arrest affected her condition, remain in dispute. Petitioner, however, alleges that the arrest resulted from the defendants' negligent medical care, and that it left Wells in a "virtual vegetative" state.

Upon her release from Mount Sinai, Wells returned to the Sage Nursing Home where she continued to reside until her death from terminal multiple sclerosis at the age of 38. Although she had been married twice, Wells was single at the time of her death. She left no children, and her sole surviving lineal heir is her mother, the petitioner.

This appeal deals exclusively with petitioner's suit to recover for the loss of her daughter's society and companionship for the period running from the day Wells suffered her arrest through to the date of her death approximately three and one-half years later. ² Petitioner alleges that this loss was due to the injuries Wells allegedly suffered as the result of defendants' negligence.

The trial court granted defendants' motion for partial summary judgment. The court of appeals affirmed, holding that our earlier cases in this area, particularly Shockley v. Prier, 66 Wis.2d 394, 225 N.W.2d 495 (1975), Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984), and Rineck v. Johnson, 155 Wis.2d 659, 456 N.W.2d 336 (1990), clearly limited a parent's cause of action for loss of society and companionship to their minor children. Estate of Mary Wells, 174 Wis.2d at 512, 497 N.W.2d 779. ³

Our task in this case is to determine whether the trial court properly granted the defendants' motion for summary judgment. In reviewing such matters, we follow the same methodology as the trial court. That methodology is articulated in sec. 802.08(2), Stats.:

[Summary judgment] shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

This analysis requires us to make two determinations. First, we consider whether there is a dispute as to a material fact. If no material facts are in dispute, we then determine whether under the law, the movant is entitled to summary judgment. Delmore v. American Family Mutual Insurance Company, 118 Wis.2d 510, 512-13, 348 N.W.2d 151 (1984). For purposes of this appeal, the material facts are undisputed: Wells was a single, childless adult at the time of her death, and the petitioner was her mother and sole surviving heir. As a result, we proceed to the question of law herein posed. That question is whether under these facts, the petitioner can recover for the loss of her daughter's society and companionship.

The common law traditionally did not recognize such a cause of action. Rather, as this court indicated nearly 70 years ago in Callies v. Reliance Laundry Co., 188 Wis. 376, 380, 206 N.W. 198 (1925), a parent's recovery in such cases was limited to compensation for 1) loss of the child's earning capacity during minority, and 2) the child's reasonable medical and nursing expenses during minority.

As we have since observed, the Callies decision embodied the economic and social realities of its day. Specifically, it reflected a society dependent on child labor, where a child's contribution to the family was more apt to be viewed in economic rather than sentimental terms, and where courts routinely analogized the parent/child relationship to that of master/servant.

With this court's decision in Shockley, however, Wisconsin became one of the first states to allow parents to recover damages for the loss of their negligently-injured minor child's society and companionship. Id. 66 Wis.2d at 401, 225 N.W.2d 495. Attributing the common law's "genius" to its ability to adapt to society's changing needs, we made the following observation:

Since our court last laid down the law in [Callies], the family relationship has changed. Society and companionship between parents and their children are closer to our present-day family ideal than the right of parents to the 'earning capacity during minority' which once seemed so important when the common law was originally established.

Id. at 400-01, 225 N.W.2d 495.

The significance of Shockley lies in its recognition of the emotional aspects of the parent/child relationship. The question before us today, however, is one Shockley left unanswered. That question is whether the cause of action created therein extends to the parents of negligently-injured adult children as well as minor children. ⁴

The answer is not found in the statutes. Because petitioner alleges that Wells's injuries resulted from medical malpractice, her loss of society and companionship claim is governed by Chapter 655. ⁵ Unfortunately, Chapter 655 is silent with respect to who can maintain such a claim, and under what conditions.

Nor is Wisconsin's wrongful death statute applicable. ⁶ As indicated, claims arising from medical malpractice are governed by Chapter 655, not the wrongful death statute. At an even more basic level, the wrongful death statute, as its name indicates, applies only when the alleged loss results from a wrongful death. Here, the lost society and companionship for which the petitioner seeks recovery allegedly stems from the injuries Wells suffered, not from her death.

This lack of statutory guidance does not, however, prevent this court from acting. As we explained in Shockley, the rules against recovery for loss of society and companionship were created by the courts, and it is our responsibility, as much as it is the legislature's, to continue to shape this area of the law. Id. at 397, 225 N.W.2d 495.

Moreover, determining whether or not to extend the scope of liability with respect to a particular field of negligence claims is not a new task for this court. In the past, we have articulated a number of public policy considerations which may serve to deny the imposition of liability, even where negligence otherwise exists. As we noted in Hass v. Chicago & North Western Railway Company, 48 Wis.2d 321, 179 N.W.2d 885 (1970):

It is recognized by this and other courts that even where the chain of causation is complete and direct, recovery against the negligent tort-feasor may sometimes be denied on grounds of public policy because the injury is too remote from the negligence or too 'wholly out of proportion to the culpability of the negligent tortfeasor,' or in retrospect it appears too highly extraordinary that the negligence should have brought about the harm, or because allowance of recovery would place too unreasonable a burden [on negligent tort-feasors], or be too likely to open the way for fraudulent claims, or would 'enter a field that has no sensible or just stopping point.'

Id. at 326, 179 N.W.2d 885, (quoting Colla v. Mandella, 1 Wis.2d 594, 598-99, 85 N.W.2d 345 (1957). ⁷

Of these public policy considerations, those concerned with the imposition of excessive liability are particularly germane to claims for lost society and companionship. That is because the plaintiff's recovery in such cases is predicated upon the emotional ties he or she shares with the injured party. Consequently, the possible universe of claimants is limited only by the number of persons with whom the injured person has established personal relationships. Moreover, the negligent tortfeasor in such cases faces the considerable burden of disproving the existence and/or significance of any such relationships. As a result, courts generally recognize that this particular cause of action necessitates some degree of judicial guidance. ⁸

Our post-Shockley decisions in this area indicate this court's sensitivity to these very valid public policy concerns. In Theama, for instance, the issue was whether or not to allow a minor child to recover damages for...