Flint v. O'CONNELL
| Decision Date | 11 April 2002 |
| Docket Number | No. 01-1021.,01-1021. |
| Citation | 2002 WI App 112,648 N.W.2d 7,254 Wis.2d 772 |
| Parties | Sarah FLINT and Wayne Spencer Frank, Plaintiffs-Appellants, v. Barbara A. O'CONNELL, M.D., Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Donald J. Jacquart, David P. Lowe, and Paul R. Jacquart of Jacquart & Lowe, S.C. of Milwaukee.
On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, Charles D. Hoornstra, assistant attorney general, and James McCambridge, assistant attorney general. Before Vergeront, P.J., Roggensack and Lundsten, JJ.
¶ 1.
Sarah Flint and Wayne Spencer Frank1 sued Dr. Barbara A. O'Connell for negligently failing to diagnose Flint's pregnancy in a timely fashion. Flint and Frank contend that O'Connell's negligence prevented Flint from electing to have an abortion which caused them damages associated with the pregnancy, its effects on Flint's health and the costs of raising the healthy child born to them as a result. Because we conclude that Flint and Frank have not made a showing sufficient to distinguish the public policy concerns underlying the supreme court's prohibition against recovery of the costs of raising a healthy child due to the failure to diagnose a pregnancy that are set out in Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 (1974), we affirm the judgment of the circuit court dismissing their claims for this type of damages. However, in regard to Flint's claims that O'Connell's failure to diagnose resulted in exacerbation of her chronic illness and associated consequences, we reverse the circuit court prior to a full public policy analysis of the remaining damages that were alleged and remand for further proceedings consistent with this opinion.
¶ 2. Flint was diagnosed with systemic lupus erythematosus in 1985. In 1994, for issues related to her lupus, Flint was referred to O'Connell, a licensed gynecologist. Flint subsequently informed O'Connell that she had had a positive pregnancy test and that she wished to undergo an abortion for personal and medical reasons.
¶ 3. In accordance with Flint's decision, O'Connell performed a procedure to abort a pregnancy in January 1995. However, it was later determined that Flint had not been pregnant. After this experience with Flint's "false positive" pregnancy test, O'Connell prescribed an oral contraceptive, but Flint never used it. At about the same time, O'Connell also diagnosed Flint as suffering from premature ovarian failure or "premature menopause."
¶ 4. Between mid-November 1997 and early January 1998, Flint made several telephone calls to O'Connell's office because of recurring periods of nausea, lower abdominal pain and vaginal bleeding. Based on their initial communication during this period, O'Connell adjusted the medication Flint was taking for ovarian failure. Because Flint continued to report abdominal pain and nausea, an examination was scheduled. When O'Connell examined Flint on January 12, 1998, she did not note an enlarged uterus, nor did she diagnose Flint's pregnancy, which was then on-going.
¶ 5. On March 3, 1998, Flint saw a rheumatologist whom she told that she felt movement within her pelvis. The rheumatologist ordered an ultrasound study which showed Flint was well into the second trimester of pregnancy. Flint sought the opinion of an obstetrician who specializes in high-risk pregnancies and continued with the pregnancy. She gave birth to a healthy baby boy on May 31, 1998.
¶ 6. After the diagnosis of her pregnancy, Flint discontinued some of the medication she had been taking for lupus. Subsequent to her son's birth, she experienced a decrease in kidney function, which eventually ended in renal failure and a kidney transplant. Flint contends that her kidney failure was a result of having stopped medication during pregnancy, which pregnancy she claimed to have learned of when it was too late to have an abortion.
¶ 7. In the second amended complaint, Flint and Frank allege that O'Connell provided negligent care by failing to inform Flint that she could become pregnant and by failing to diagnose the pregnancy in time to abort the fetus. O'Connell denied all material allegations, including the assertion that Flint learned of the pregnancy when it was too late for an abortion, and she moved for summary judgment of dismissal.
¶ 8. In deciding O'Connell's motion for summary judgment, the circuit court determined that public policy precludes recovery for all types of damages on the claim that O'Connell negligently failed to diagnose Flint's pregnancy. However, the court also concluded that if Flint proves that O'Connell negligently failed to inform her about the possibility of becoming pregnant, she could potentially recover the claimed damages, including expenses related to the kidney transplant and the costs of raising her healthy son to the age of majority.
¶ 9. In response to the court's ruling, the parties reached a stipulation whereby they agreed to conditionally dismiss the claim that O'Connell failed to inform Flint that she could become pregnant.2 The circuit court accepted the stipulation and entered final judgment in favor of O'Connell. Flint appeals.
Standard of Review.
[1]
¶ 10. We review summary judgment decisions de novo, applying the same standards employed by the circuit court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375, 376 (Ct. App. 1998). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute that entitle the opposing party to a trial. Id.
[2]
¶ 11. Here, the question presented is whether public policy precludes recovery of damages based on O'Connell's alleged negligence in failing to diagnose Flint's pregnancy.3 Whether public policy considerations preclude the recovery of damages for a defendant's negligence in a given case is a question of law that we review de novo. Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 635, 654, 517 N.W.2d 432, 435, 443 (1994) ().
Public Policy.
[3-5]
¶ 12. In Wisconsin, one is obligated to exercise reasonable care such that one does not cause foreseeable harm to another. Marciniak v. Lundborg, 153 Wis. 2d 59, 64, 450 N.W.2d 243, 245 (1990). However, even when negligence has been proved, public policy considerations may preclude recovery of damages. Therefore, "negligence plus an unbroken sequence of events establishing cause-in-fact does not always and necessarily lead to a determination that a defendant is liable for the plaintiffs injuries." Id. at 65, 450 N.W.2d at 245. A defendant may be relieved of liability for public policy reasons if any one of the following six factors is present:
(1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden (in the case before us, upon physicians and obstetricians); or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point.
Rieck, 64 Wis. 2d at 517-18, 219 N.W.2d at 244.
[6]
¶ 13. Generally, public policy determinations proceed on a case-by-case basis because claim-specific facts are often relevant to the analysis. Bowen, 183 Wis. 2d at 660, 517 N.W.2d at 445-46. In some cases, the pleadings may present a question of public policy that can be resolved on a motion to dismiss or a motion for summary judgment. Id. at 654-55, 517 N.W.2d at 443. In other cases, a full trial may be desirable prior to the court's public policy determination. Id.
¶ 14. Flint alleges that O'Connell negligently failed to diagnose her pregnancy. She alleges this negligence caused her to give birth to her son because when she subsequently learned she was pregnant, it was too late to have an abortion. The economic damages sought include lost wages, medical costs associated with the pregnancy, the birth and Flint's kidney failure, as well as the costs associated with raising her son. Flint also claims non-economic damages related to the stresses of the pregnancy and her later kidney failure. Therefore, the question presented is whether, assuming arguendo that Flint has proved all the elements of her negligence claim, public policy nevertheless precludes recovery of some or all of the claimed damages.
¶ 15. In Rieck, the supreme court applied a public policy analysis to damages sought for negligence based on a physician's alleged failure to diagnose a pregnancy. Because O'Connell contends that Rieck controls the public policy issue presented by Flint's claim and because Flint claims that Rieck can be distinguished on its facts, we begin our discussion with Rieck. There, plaintiffs alleged that: (1) an examining physician negligently failed to diagnose a pregnancy; (2) by the time the pregnancy was diagnosed, it was too late to abort the fetus; and (3) if the first physician had timely diagnosed the pregnancy, the...
To continue reading
Request your trial
-
Cole v. Hubanks, 02-1416.
...660 (1979)). A determination that any one of the factors applies to the case at hand is sufficient to preclude liability. Flint v. O'Connell, 2002 WI App 112, ¶ 12, 254 Wis. 2d 772, 648 N.W.2d 7. Generally, the application of public policy factors proceeds on a case-by-case basis because cl......
-
Nell v. Froedtert & Cmty. Health
...¶ 5 We review de novo the circuit court's decision on summary judgment, employing the same methodology as the circuit court. Flint v. O'Connell, 2002 WI App 112, ¶ 10, 254 Wis.2d 772, 648 N.W.2d 7 . We first review the complaint to see if it states a claim, then review the answer to see if......