Fanshaw v. Medical Protective Ass'n of Fort Wayne, Ind., s. 134

• Decision Date: 05 October 1971
• Docket Number: 135,Nos. 134,s. 134
• Citation: 52 Wis.2d 234,190 N.W.2d 155
• Parties: John FANSHAW, Admr. of the Estates of Mary Ellen Fanshaw and Baby Boy Fanshaw, Appellant, v. MEDICAL PROTECTIVE ASSN. OF FORT WAYNE, IND., et al., Respondents. John FANSHAW, individually and as Special Admr. of the Estate of Mary Ellen Fanshaw, Appellant, v. MEDICAL PROTECTIVE ASSN. OF FORT WAYNE, IND., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 155

190 N.W.2d 155

52 Wis.2d 234

John FANSHAW, Admr. of the Estates of Mary Ellen Fanshaw and Baby Boy Fanshaw, Appellant, v. MEDICAL PROTECTIVE ASSN. OF FORT WAYNE, IND., et al., Respondents.

John FANSHAW, individually and as Special Admr. of the Estate of Mary Ellen Fanshaw, Appellant, v. MEDICAL PROTECTIVE ASSN. OF FORT WAYNE, IND., et al., Respondents.

Nos. 134, 135.

Supreme Court of Wisconsin.

Oct. 5, 1971.

Mary Ellen Fanshaw, a nurse employed by St. Joseph's Hospital of Beaver Dam, Wisconsin, entered respondent Lutheran Hospital, Beaver Dam, Wisconsin, on December 4, 1969, in connection with her eighth pregnancy and the bleeding complications which had developed. Her doctor, Dr. C. L. Qualls, examined her and x-rays were taken. It was determined that the fetus was partially transverse. After Dr. Qualls left the hospital, Mrs. Fanshaw began having contractions. She was given a drug injection and, some time later, was found in a knee-chest position, in pain. She died a short time later; and the fetus expired in the uterus. On autopsy it was determined that the cause of death was amniotic fluid embolism.

Appellant commenced an action against Dr. Qualls by service of summons and started discovery proceedings to enable him to plead. The summons has been amended four times to add additional parties. Although 15 depositions or adverse examinations have been taken, no complaint has yet been filed. This appeal is taken from a number of orders which limit or otherwise affect the discovery proceedings.

S. A. Schapiro, Milwaukee, for appellants.

Hart, Wightman & Thurow, Madison, for Medical Prot. Assn. and Dr. Qualls.

Fulton, Menn & Nehs, Appleton, Peter S. Nelson, Appleton, of counsel, for Lutheran Hosp. Assn. and St. Paul F & M Ins. Co.

Wells & Boyle, Beaver Dam, for St. Joseph's Hosp. of Beaver Dam.

HANLEY, Justice.

Three issues are presented on appeal:

(1) Whether the court erred in refusing to impose the penalities provided for in sec. 269.57(4), Stats., for the refusal of record custodians to permit inspection of hospital records upon presentation of an authorization signed by the beneficiary of an insurance policy on the life of the deceased;

(2) Whether the court erred in denying appellant's motion to compel the signing of a deposition; and

(3) Whether the court abused its discretion in denying various motions made by appellant.

Denial of Penalties Under Sec. 269.57(4), Stats.

On December 13, 1969, appellant's counsel appeared at Lutheran Hospital and requested to be allowed to inspect and copy the hospital records relating to the treatment of Mrs. Fanshaw. He had with him an authorization signed by appellant. Although the appellant was the beneficiary of two life insurance policies covering Mrs. Fanshaw, the authorization made no mention of this fact. The administrator of the hospital refused to allow counsel to inspect the records on the grounds that they were not yet completed. Thereafter, appellant moved for an order directing production of the records and for the imposition of a $50 penalty against the custodian of the records, as provided for by sec. 269.57(4), Stats. The trial court denied this motion, basing its decision on the fact that the authorization did not reveal the fact that appellant was entitled to the records as a beneficiary of a policy on the life of the deceased.

Respondent questions the appealability of this order. The order appealed from had two facets. First, it denied the motion for the production of the hospital records. This would be appealable under sec. 274.33(3), Stats., as an order denying a provisional remedy. Second, the order denied the motion for the imposition of a penalty against the hospital and the custodian of the records. Since the motion for the imposition of a penalty under sec. 269.57(4), Stats., could be considered a special proceeding, we think the order denying that motion can be appealed under sec. 274.33(2)(a).

Whether or not appellant was entitled to the penalties provided for by sec. 269.57(4), Stats., depends upon whether he was entitled to inspect the records in the first instance and whether the refusal to permit inspection was wrongful. Sec. 269.57(4), Stats., states:

'Upon receipt of written authorization and consent signed by a person who has been the subject of medical care or treatment, or in case of the death of such person signed by his personal representative or by the beneficiary of an insurance policy on his life, the physician, surgeon or other person having custody of any medical or hospital reports, photographs, records, papers and writings concerning such care or treatment, shall forthwith permit the person designated in such authorization to inspect and copy such records. * * *'

It is admitted that the authorization did not reveal that appellant was either the beneficiary of an insurance policy on the life of the deceased or the personal representative of her estate. We conclude that if the authorization does not reveal the status of the person requesting the information, the record custodian is within his rights to refuse inspection. Consequently, the trial court properly denied appellant's motion for imposition of penalties.

Refusal to Compel Signing of Deposition.

Appellant subpoenaed Ruth Fischer, an employee of Lutheran Hospital, for the purpose of taking her deposition. Such deposition was taken, but the deponent refused to sign it, alleging that it contained errors. Appellant moved the court to order Ruth Fischer to sign the deposition without making the corrections she felt necessary. This the court refused to do, but rather allowed the deponent to rectify whatever portions of her testimony she felt were in error.

The order merely regulates the procedure of taking a deposition. Such an order is not appealable. Hyslop v. Hyslop (1940), 234 Wis. 430, 291 N.W. 337; Quality Outfitters, Inc., v. Risko (1958), 4 Wis.2d 341, 90 N.W.2d 638.

Even if the order were appealable, it would not be error for the court to allow corrections to be made in the deposition. As was stated in Baltzer v. Chicago, Madison & Northern R. Co. (1895), 89 Wis. 257, 263, 60 N.W. 716, 717, with respect to allowing a witness at trial to amend his deposition:

'* * * This, as we understand it, was the correction of his own testimony, and that was proper. That should not be denied to any witness. * * *'

Abuse of Discretion.

Appellant contends that the lower court abused its discretion in limiting or denying discovery. The appellant has the burden of showing that the court did abuse its discretion; and this court will not reverse unless abuse is clearly shown. Shier v. Freedman (1970), 49 Wis.2d 41, 181 N.W.2d 400. With this principle in mind, we examine the individual allegations of abuse of discretion.

Appellant's first contention is that the trial court abused its discretion in refusing to make original records of the board of directors and the tissue committee available to the appellant. By order dated March 16, 1970, the trial court ordered Lutheran Hospital to make copies of the records and minutes of the board of directors and tissue committee meetings available to appellant. This order was complied with. After examining...