Estate of Wells by Jeske

• Decision Date: 16 February 1993
• Docket Number: No. 92-0186,92-0186
• Citation: 497 N.W.2d 779,174 Wis.2d 503
• Parties: The ESTATE OF Mary WELLS, by her personal representative/administratrix, Charlotte JESKE, Plaintiff. Charlotte JESKE, Plaintiff-Appellant, d 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, 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 & Human Services, Defendants.
• Court: Wisconsin Court of Appeals

Page 779

497 N.W.2d 779

174 Wis.2d 503

The ESTATE OF Mary WELLS, by her personal representative/administratrix, Charlotte JESKE, Plaintiff Charlotte JESKE, Plaintiff-Appellant, ^d 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, 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 &amp Human Services, Defendants.

No. 92-0186.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 4, 1992.

Opinion Released Feb. 16, 1993.

Opinion Filed Feb. 16, 1993.

For the plaintiff-appellant the cause was submitted on the briefs of Quale, Feldbruegge, Calvelli, Thom & Croke, S.C. by William W. Ehrke and Shawn M. Govern, of Milwaukee.

For the defendants-respondents Mount Sinai Medical Center, n/k/a Sinai Samaritan Medical Center and/or Aurora Health Care, Mount Sinai Campus, and Wisconsin Health Care Liability Ins. Plan the cause was submitted on the briefs of Otjen, Van Ert, Stangle, Lieb & Weir, S.C. by Wayne Van Ert and Mark A. Grady, of Milwaukee.

For the defendants-respondents Daniel Wartinbee, Milwaukee Orthopaedic Group, Ltd. and Professionals Ins. Co. of Ohio the cause was submitted on the briefs of Peterson, Johnson & Murray, S.C. by Mary Lee Ratzel, of Milwaukee.

For the defendant-respondent Wisconsin Patients Compensation Fund the cause was submitted on the briefs of Schellinger & Doyle, S.C. by James M. Fergal and Linda Vogt Meagher, of Brookfield.

Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.

WEDEMEYER, Presiding Judge.

This case involves an appeal from the trial court's partial summary judgment order against Charlotte Jeske. The trial court ruled that: (1) a parent of an adult child is not entitled to recover damages for the loss of society and companionship of the child where he or she is allegedly injured by medical malpractice; (2) a parent is not entitled to recover damages for the negligent infliction of emotional distress derived from a child's injury where the parent is not within the range of ordinary physical peril due to the allegedly tortious activity; and, (3) where there is no basis for compensatory damages, an action for punitive damages cannot be maintained. Because we agree with the trial court's above statement of the law, we affirm the decision.

I. BACKGROUND

Procedurally, this appeal arises from claims brought by Charlotte Jeske (Charlotte), the mother of Mary Wells (Mary), who died at the age of thirty-eight due to complications from multiple sclerosis. The Estate of Mary Wells has alleged various claims separate from those of Charlotte, and those claims are currently being stayed pending the outcome of this appeal.

Mary was afflicted by multiple sclerosis at the age of twenty-one. By age thirty, Mary's condition had deteriorated to a point where she was in need of nursing care. In addition to being unable to take care of herself, Mary also suffered from a number of other medical ailments. One such ailment was bilateral hip flexion contractures in her knees and hips. In late 1986, Mary underwent surgery to release the hip contractures. The surgery was successful, but required therapy and special positioning to achieve maximum results.

On January 4, 1987, while Mary was in the care of Sinai Samaritan Medical Center, she unexpectedly suffered respiratory arrest. Mary was successfully resuscitated some time after the arrest. The effects of this arrest have yet to be considered by the trial court, and indeed, will likely be an issue of some dispute. Not in dispute, however, is the fact that Charlotte was not informed of the arrest until approximately five hours after its occurrence. The reasons for the delay are unclear at this point in the proceedings.

On January 22, 1987, Mary was discharged from the medical center to the Sage Nursing Home, where she remained until her death on July 3, 1990. The cause of Mary's death was terminal multiple sclerosis. At the time of her death, Mary was not married and had no children. Her only lineal heir was her mother, Charlotte.

Subsequently, Charlotte, both individually and as personal representative of the Estate of Mary Wells, initiated the present litigation. Germane to this appeal are Charlotte's personal claims of loss of society and companionship and negligent infliction of emotional distress. Pursuant to defendant's summary judgment motion, the trial court dismissed both of Charlotte's compensatory claims, as well as her claim for punitive damages, by written order of October 25, 1991. Charlotte now appeals.

II. STANDARD OF REVIEW

"In reviewing a summary judgment we follow the same methodology as the trial court." Kane v. Employer's Ins. of Wausau, 142 Wis.2d 702, 703, 419 N.W.2d 324, 325 (Ct.App.1987). Pursuant to 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 court must make two determinations when ruling on a motion for summary judgment. First, we consider whether there is a dispute as to a material fact. Delmore v. American Family Mutual Ins. Co., 118 Wis.2d 510, 512, 348 N.W.2d 151, 152 (1984). Second, we look to see whether, under the law, the movant is entitled to a judgment. Id. at 512-13, 348 N.W.2d at 153. If there is no factual dispute on any material matter, then only a question of law is presented. Id. at 512, 348 N.W.2d at 153. "Questions of law are properly decided by summary judgment." Kane, 142 Wis.2d at 705, 419 N.W.2d at 326. This court "will reverse a summary judgment only if the trial court incorrectly decided the legal issue." Johansen v. Reinemann, 120 Wis.2d 100, 101, 352 N.W.2d 677, 678 (Ct.App.1984).

III. LOSS OF SOCIETY AND COMPANIONSHIP

Charlotte first contends that the trial court erred by granting summary judgment dismissal of her claim for the loss of society and companionship of her adult child. In particular, she argues that the current state of the law in Wisconsin allows a parent to recover for the loss of society and companionship of an injured adult child. ¹ We disagree.

The cases pertinent to the inquiry at hand include: Shockley v. Prier, 66 Wis.2d 394, 225 N.W.2d 495 (1975); Theama v. The 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). Each of these cases involved minor children and the recovery of damages for loss of society and companionship.

In Shockley, the supreme court considered the issue of whether a parent could recover damages for the loss of society and companionship of a minor child who had been injured by the negligent acts of another in the context of a medical malpractice action. Allegedly, the newborn infant of Mr. and Mrs. Shockley was negligently injured due to the infant's having been given excessive amounts of oxygen. The parents brought suit alleging that they were "deprived of [their] minor son's aid, comfort, society and companionship, and will in the future continue to be deprived of the same, to which [they were] entitled." Shockley, 66 Wis.2d at 395-96, 225 N.W.2d at 497. Of significance in the Shockley case is its limiting language: "We therefore confine this opinion to the question of whether such damages are allowable to a parent during the minority of an injured child." Id. at 396, 225 N.W.2d at 497. With this qualification in mind, the court concluded that "a parent may maintain an action for loss of aid, comfort, society and companionship of an injured minor child against a negligent tort-feasor provided, and on condition, that the parent's cause of action is combined with that of the child for the child's personal injuries." Id. at 404, 225 N.W.2d at 501 (emphasis added).

Theama was a negligence action that addressed the issue of whether a minor child may recover for the loss of society and companionship caused by negligent injury to the parent. Theama, 117 Wis.2d at 511, 344 N.W.2d at 514. Robert Theama was injured while driving on a road maintained by the city of Kenosha. His injury resulted in permanent brain damage as well as a litany of other serious injuries. Id. at 509, 344 N.W.2d at 513. Theama subsequently brought suit against the city of Kenosha, alleging in part that his children were deprived of the care, society, companionship, protection, training, and guidance of their father because of the city's negligence.

The supreme court concluded that where a child can establish negligence on the part of the defendant which resulted in injury to the parent, "the child may bring a cause of action for the loss of a parent's society and companionship resulting from another's negligence." Id. at 527, 344 N.W.2d at 522. The court, however, noted in closing that it was limiting the "recovery under this cause of action to the child's minority, because the minor is one whose relationship is most likely to be severely affected by a negligent injury to the parent." Id.

Finally, in Rineck, one of the issues examined by the supreme court was whether a minor child has a separate cause of action for loss of society and companionship when medical malpractice causes the death of one parent and the decedent is survived by his or her spouse. The Rineck case concerned negligence on the part of a nurse anesthetist who failed to properly supply Mrs. Rineck with an adequate supply of oxygen during an emergency cesarean section. Mrs. Rineck subsequently died but her child survived, albeit in a profoundly retarded condition. At trial, the child's claim for the...