Finnegan v. Patients Compensation Fund

• Decision Date: 08 July 2003
• Docket Number: No. 01-2911.,01-2911.
• Citation: 666 N.W.2d 797,263 Wis.2d 574,2003 WI 98
• Parties: Joseph FINNEGAN, Tanice Finnegan, Calvin Joseph Finnegan, Zachary Trevor Finnegan and Mikayla Fae Finnegan, by their Guardian ad Litem, David M. Skoglind, Plaintiffs-Respondents, MANITOWOC PUBLIC SCHOOLS SELF-INSURED, c/o Plan Administrators Humana Employers Health, Involuntary-Plaintiffs, v. WISCONSIN PATIENTS COMPENSATION FUND, Defendant-Co-Appellant, MANITOWOC CLINIC INCORPORATED and ABC Insurance Company, Defendants, AURORA MEDICAL GROUP, INC. d/b/a Manitowoc Clinic and Aurora Health Care, Inc., Defendants-Appellants.
• Court: Wisconsin Supreme Court

263 Wis.2d 574

2003 WI 98

666 N.W.2d 797

Joseph FINNEGAN, Tanice Finnegan, Calvin Joseph Finnegan, Zachary Trevor Finnegan and Mikayla Fae Finnegan, by their Guardian ad Litem, David M. Skoglind, Plaintiffs-Respondents, MANITOWOC PUBLIC SCHOOLS SELF-INSURED, c/o Plan Administrators Humana Employers Health, Involuntary-Plaintiffs, v. WISCONSIN PATIENTS COMPENSATION FUND, Defendant-Co-Appellant, MANITOWOC CLINIC INCORPORATED and ABC Insurance Company, Defendants, AURORA MEDICAL GROUP, INC. d/b/a Manitowoc Clinic and Aurora Health Care, Inc., Defendants-Appellants.

No. 01-2911.

Supreme Court of Wisconsin.

Oral argument December 4, 2002.

Decided July 8, 2003.

For the defendants-appellants there were briefs by Randal N. Arnold, David J. Hanus and Hinshaw & Culbertson, Milwaukee, and oral argument by Randal N. Arnold.

For the defendant-co-appellant there were briefs by R. George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, and oral argument by R. George Burnett. For the plaintiffs-respondents there was a brief by Timothy J. Aiken, James C. Gallanis, and Aiken & Scoptur, S.C., Milwaukee, and oral argument by Timothy J. Aiken.

An amicus curiae brief was filed by Martha H. Heidt and Doar, Drill & Skow, S.C., Baldwin, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. DIANE S. SYKES, J.

We have this case on certification from the court of appeals for resolution of two issues: 1) does Chapter 655 of the Wisconsin Statutes (1999-2000),¹ which exclusively governs medical malpractice claims in this state, permit a bystander claim for negligent infliction of emotional distress in a medical malpractice lawsuit; and 2) if such a claim is statutorily permitted, does a misdiagnosis leading to the patient's eventual death give rise to a claim for negligent infliction of emotional distress under Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), where the claimant witnessed the patient's physical deterioration but did not witness an injury-producing event or its immediate aftermath?

¶ 2. Three members of the court—Justice Wilcox, Justice Prosser and the author of this lead opinion— conclude that Chapter 655 does not permit bystander claims for negligent infliction of emotional distress in medical malpractice lawsuits. Two members of the court—Justice Bablitch and Justice Crooks—conclude that bystander claims for negligent infliction of emotional distress are derivative claims that fall within and are actionable under Chapter 655. One member of the court—Chief Justice Abrahamson—concludes that if a Bowen bystander claim is an independent cause of action, it can be brought outside Chapter 655. Justice Bradley takes no position on the statutory question, concluding instead that the second certified question is dispositive.

¶ 3. The second issue on certification is a common-law question regarding whether a bystander claim can be maintained under Bowen where the injury-producing event is somewhat attenuated from the physical manifestation of injury and death that was witnessed by the claimant. Three members of the court (Justice Wilcox, Justice Prosser, and I) have concluded that this claim is statutorily impermissible, and therefore we need not necessarily address the separate common-law attenuation question presented in the certification. However, because of the split vote on the threshold statutory question, Justice Wilcox, Justice Prosser, and I join Part II of Chief Justice Abrahamson's opinion, in which she addresses Bowen and concludes that its factors have not been met. Justice Bradley also joins Part II of the chief justice's opinion on this second issue, which constitutes the opinion of the court. Justice Bablitch and Justice Crooks conclude that the Bowen factors have been met.

I. FACTS AND PROCEDURAL HISTORY

¶ 4. Jared Finnegan was born on March 3, 1997. During the first week of August, 1997, Jared stayed with his grandparents while his parents, Tanice and Joseph Finnegan, spent their five-year anniversary in Florida. During that time, Jared developed a low-grade fever. When the Finnegans returned on August 4th, Jared was still running a slightly elevated temperature of about 99.5 degrees. Tanice gave him Tylenol to bring his temperature down. ¶ 5. The next day, Jared became increasingly fussy. By 10:00 p.m., his temperature was up to 103.1 and he continued to run high temperatures through the morning of August 6th. Alarmed by Jared's persistent, unexplained fever, Tanice took Jared to the Manitowoc Clinic, where he was seen by the Finnegans' pediatrician, Dr. Kevin Molteni. Dr. Molteni ordered a complete blood count ("CBC") and blood culture. When the CBC indicated that Jared's white blood cell count fell within the normal range, Dr. Molteni advised Tanice to take Jared home, and to alternate doses of Tylenol and Motrin to combat the fever.

¶ 6. After the Finnegans returned home from the Manitowoc clinic, Jared's temperature spiked to 104 degrees, but came down somewhat after Tanice gave him the Tylenol and Motrin. Throughout the day, Jared continued to be very irritable. That evening he had episodes of vomiting, and Tanice called Dr. Molteni at home to report on his condition. Dr. Molteni advised Tanice to discontinue the Tylenol and to either phone the on-call physician or go to the emergency department if Jared got worse. Jared eventually fell asleep.

¶ 7. When Jared awoke at approximately 7:00 a.m. on August 7, 1997, he was moaning and appeared lethargic. The Finnegans took Jared back to the Manitowoc Clinic at 8:30 a.m. Dr. Molteni noted that the results of Jared's blood culture showed bacteria in Jared's blood, and he told the Finnegans to immediately take Jared to the hospital for a lumbar puncture. Dr. Molteni indicated that the lumbar puncture would tell them whether the bacteria had entered Jared's spinal fluid. The Finnegans then drove Jared to Holy Family Hospital in Manitowoc, about five-to-ten minutes away.

¶ 8. The night before, on August 6, 1997, the laboratory had called Dr. Anne Schuette, who was on-call for Dr. Molteni. The lab advised Dr. Schuette that Jared's blood culture, ordered earlier that day by Dr. Molteni, had come back positive for bacteria. Dr. Schuette, however, failed to relate this information to either Dr. Molteni or the Finnegans themselves. It was not until Tanice returned with Jared to the Manitowoc Clinic the next morning that Dr. Molteni reviewed the test results.

¶ 9. Upon arriving at the hospital, Joseph Finnegan dropped Tanice and Jared off at the front door and Tanice took Jared up the elevator to the pediatric ward. Jared stopped breathing on the elevator. When Tanice entered the pediatric ward, she immediately called for the nurse's attention and the nurse motioned for her to take Jared into a room. Noting that Jared wasn't breathing, the nurse called a "code blue" and several hospital staff members rushed to help.

¶ 10. Tanice remained with Jared throughout and was asked to leave the room only when Dr. Molteni arrived to do the lumbar puncture. After performing the procedure, Dr. Molteni came out to Tanice and informed her that Jared's spinal fluid was cloudy and that a flight team was on its way from Children's Hospital in Milwaukee. When the flight team arrived, Jared was stabilized and prepared for the flight to Milwaukee. The Finnegans followed the helicopter by car. By the time Jared got to Children's Hospital, however, his infection had progressed too far and the doctors were unable to save his life. Jared died at Children's Hospital on August 7, 1997.

¶ 11. The Finnegans initially filed an action for wrongful death in Manitowoc County Circuit Court, alleging medical malpractice on the part of Dr. Schuette, Aurora Medical Group's on-call physician, based upon her failure to act upon the August 6th laboratory results. The Finnegans and Aurora Medical Group have settled the wrongful death claim for an undisclosed amount.

¶ 12. The Finnegans amended their complaint to assert an additional claim for negligent infliction of emotional distress under Bowen, arising out of the malpractice. This is the only remaining claim in the lawsuit.

¶ 13. Aurora moved for summary judgment to dismiss the negligent infliction of emotional distress claim, asserting that: 1) Bowen-type claims for emotional distress are not cognizable in actions arising from medical malpractice, which are governed exclusively by Chapter 655; and 2) even if bystander claims for emotional distress are statutorily permitted, Bowen itself precludes the Finnegans' claim.

¶ 14. The circuit court, the Honorable Fred H. Hazlewood, denied Aurora's motion for summary judgment, concluding that Chapter 655 recognizes Bowen claims for negligent infliction of emotional distress and that the Finnegans' claim for negligent infliction of emotional distress was not precluded by Bowen itself. The court of appeals granted Aurora's petition for interlocutory appeal, and certified the case to this court. We granted the certification to determine whether the Finnegans' bystander mental distress claim is permitted by Chapter 655, and if so, whether the claim is cognizable under Bowen itself. We now reverse.

II. STANDARD OF REVIEW

[1]

¶ 15. The first certified issue is whether Chapter 655 permits bystander claims for negligent infliction of emotional distress in medical malpractice actions. This is a question of statutory interpretation, subject to de novo appellate review. Czapinski v. St. Francis Hosp., 2000 WI 80, ¶ 12, 236 Wis. 2d 316, 613 N.W.2d 120 (citing Burks v. St. Joseph's Hosp., 227 Wis. 2d 811, 824, 596 N.W.2d 391 (1999)).

III. DISCUSSION

¶ 16. Wisconsin common law has "historically distrusted emotion" as the sole basis for a compensable tort claim. Bowen, 183 Wis. 2d at 638. For many years, courts treated the tort of negligent infliction of emotional distress with skepticism, devising "various criteria to balance a plaintiff's...