Hofflander v. St. Catherine's Hospital, Inc.

• Decision Date: 08 August 2001
• Docket Number: No. 00-2467.,00-2467.
• Citation: 635 N.W.2d 13,247 Wis.2d 636,2001 WI App 204
• Parties: Lori HOFFLANDER, Plaintiff-Appellant, MILWAUKEE COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff-Co-Appellant, v. ST. CATHERINE'S HOSPITAL, INC., Sentry Insurance, a Mutual Company, Patients Compensation Fund, Horizon Mental Health Management, Inc. and Columbia Casualty Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

247 Wis.2d 636

2001 WI App 204

635 N.W.2d 13

Lori HOFFLANDER, Plaintiff-Appellant,¹ MILWAUKEE COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff-Co-Appellant, v. ST. CATHERINE'S HOSPITAL, INC., Sentry Insurance, a Mutual Company, Patients Compensation Fund, Horizon Mental Health Management, Inc. and Columbia Casualty Company, Defendants-Respondents.²

No. 00-2467.

Court of Appeals of Wisconsin.

Submitted on briefs June 6, 2001.

Decided August 8, 2001.

On behalf of the plaintiff-appellant Lori Hofflander, the cause was submitted on the briefs of Jerome A. Hierseman of Gray & End, L.L.P. of Milwaukee.

On behalf of the plaintiff-co-appellant Milwaukee County Department of Human Services, the cause was submitted on the brief of Louis Edward Elder, principal assistant corporation counsel.

On behalf of the defendants-respondents St. Catherine's Hospital, Inc., Sentry Insurance, and Patients Compensation Fund, the cause was submitted on the briefs of John A. Nelson and Timothy W. Feeley of von Briesen, Purtell & Roper, S.C. of Milwaukee. On behalf of the defendants-respondents Horizon Mental Health Management, Inc., and Columbia Casualty Company, the cause was submitted on the briefs of John K. Hughes of Gessler, Hughes & Socol, Ltd. of Chicago, Illinios.

Before Nettesheim, P.J., Brown and Snyder, JJ.

¶ 1. BROWN, J.

Lori Hofflander brought negligence and safe place claims against St. Catherine's Hospital, Inc. and its insurer, Sentry Insurance (St. Catherine's) for injuries she sustained when she fell from a third-floor window of a locked psychiatric unit. The other defendants in this case are Horizon Mental Health Management, Inc. and its insurer, Columbia Casualty Company (Horizon). The trial court granted summary judgment in favor of St. Catherine's and Horizon, ruling that the "custody and control" rule enunciated in Jankee v. Clark County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297, did not apply to Hofflander because the health care providers could not have foreseen the particular manner in which she injured herself. The trial court then found that Hofflander's negligence exceeded the negligence of the health care providers as a matter of law. We determine, however, that the Jankee foreseeability prong requires only that the risk of elopement be foreseeable, not the manner of the elopement. Moreover, our independent review of the record reveals that the facts and the reasonable inferences to be drawn from them regarding the foreseeability of Hofflander's elopement are in dispute and therefore summary judgment is not appropriate. We further determine that there are disputed material facts regarding whether an unsafe condition existed in the hospital at the time these events commenced, rendering this issue also inappropriate for summary judgment. ¶ 2. Hofflander also challenges a pretrial order barring discovery of certain hospital records. We affirm the trial court's determination that the records are privileged peer review documents under WIS. STAT. § 146.38 (1999-2000).³

Facts

¶ 3. On December 28, 1996, City of Kenosha police responded to a call regarding a suicidal person. Family and friends identified the person as Hofflander and informed the officers of their concern for her safety. Hofflander's friend, Pam Stewart, indicated that Hofflander had threatened to kill herself by taking an overdose of Valium, that she had been distraught over losing custody of her children and her drunk driving convictions, and that she desperately needed help. Hofflander's former husband indicated that Hofflander had called him threatening to kill herself in one hour. The police observed that Hofflander was uncooperative and had erratic mood swings. The officers took Hofflander into custody and transported her to St. Catherine's, where she was involuntarily admitted pursuant to WIS. STAT. ch. 51. ¶ 4. Dr. Ligay Ilagan-Newman completed a history and physical examination report the next day. Ilagan-Newman's impression included dysthymia⁴ and borderline personality disorder. She noted that "suicide precaution initially ordered, now discontinued." She further noted that "[t]he patient at this time is anxious to leave the facility because she wants to relocate herself into a smaller apartment for financial reasons."

¶ 5. Hofflander was placed in room 307 on the third floor of St. Catherine's psychiatric unit. St. Catherine's contracts with Horizon to manage that unit. In other words, Horizon managers supervise St. Catherine's staff and develop and implement policies and procedures pertaining to the unit. Some of the safety policies included patient rounds on an hourly basis during the day and every half hour at night, special suicide and elopement precautions, and an environmental round on every shift to check for unsafe conditions. Windows were fitted with Lexon coverings to prevent patient access, and air conditioning units were affixed with safety screws.

¶ 6. During the course of Hofflander's two-day admission to St. Catherine's, she exhibited volatile and uncooperative behavior. Examples of this behavior are reflected in nurses' notes contained in the medical record and will be discussed in more detail later in this opinion. The parties do not dispute that at some point during Hofflander's stay at St. Catherine's, she made a decision to escape. Because of the relevant nature of these events, we will now describe in detail the circumstances just prior to Hofflander's attempted elopement. ¶ 7. At approximately 5:15 p.m. on December 30, 1996, Dr. Ashok Shah interviewed Hofflander. Shah found her to be alert with labile affect, irritable and sarcastic. She denied having drug and alcohol problems despite a positive drug screening. Shah did not believe she had suicidal ideation. The interview ended at about 5:45 p.m., at which time he entered a note of his plan to decrease her Valium, continue Prozac and allow Hofflander to sign for voluntary outpatient treatment once stable. Shah then asked nurse Cathy Witheril to check on Hofflander because she was irritable.

¶ 8. At Shah's request, Witheril went to Hofflander's room and discovered her putting on her high-top black shoes with laces she had made by tearing strips from a bed sheet.⁵ Witheril removed the shoes and laces, observing that otherwise Hofflander's room looked undisturbed. Five minutes later, Hofflander appeared at the nurses' station asking for her make-up. Shah directed the nurses not to give Hofflander any glass objects and the make-up was dispensed into a medicine cup. The nurses observed Hofflander taking phone numbers from her purse and going to the telephone lounge.

¶ 9. According to Hofflander, she had telephoned Stewart to bring her car to the hospital because she was planning to escape. She then went to room 309 because a patient, not the occupant of that room, had told her there was a loose air conditioning unit in the window. She pulled the air conditioner toward her and it crashed to the floor. Hofflander testified that at that point she panicked, thinking she might get caught, so she peeked out the door to see if anyone was coming. She saw no one. She then tied some bed sheets together, affixing one end to the corner of the window. As she attempted to exit the window and climb down, she lost her grip and fell from the third-story window. Apparently, Hofflander attempted to elope within fifteen to twenty minutes of her conversation with Shah.⁶ Nurses who found her testified that she had a bed sheet tied around her ankle. She suffered multiple injuries, including a ruptured spleen and fractures to her ribs, pelvis and arm.

¶ 10. Hofflander filed suit against St. Catherine's and Horizon, alleging negligence and safe place violations. Following discovery, St. Catherine's and Horizon filed motions for summary judgment asserting that Hofflander's negligence precluded her from recovery as a matter of law and that the safe place statute was inapplicable in this case. Initially, the trial court granted Horizon's motion on the safe place issue only. After the supreme court issued its ruling in Jankee, Horizon and St. Catherine's renewed their motions for summary judgment. Hofflander moved for partial summary judgment asserting that the "custody and control" rule set forth in Jankee applied to her, thereby expunging contributory negligence as a defense. After a hearing, the trial court granted the motions of the health care providers, concluding that Hofflander's conduct was not foreseeable and therefore the "custody and control" rule did not apply. It further determined that Hofflander's negligence exceeded the health care providers' negligence as a matter of law. Finally, the trial court determined that the safe place statute was inapplicable because Hofflander was a trespasser at the time of her escape attempt and, in addition, the statute does not encompass a person's negligent acts.

[1, 2]

¶ 11. The review of a summary judgment motion is a question of law that we consider de novo. Jankee, 2000 WI 64 at ¶ 48. WISCONSIN STAT. § 802.08(2) provides that summary judgment shall be rendered when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. We will reverse a summary judgment if a review of the record reveals that disputed material facts exist or undisputed material facts exist from which reasonable alternative inferences may be drawn. See Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980).

Application of the Jankee "Custody and Control" Rule

¶ 12. The pivotal issue here is whether the "custody and control" rule set forth in Jankee can apply to these facts, thereby eliminating Hofflander's contributory negligence as an affirmative defense. We begin our analysis with a discussion of that recent case.

¶ 13. Emil Jankee was admitted to a locked, long-term care facility on the basis of a domestic violence incident. Jankee, 2000 WI 64 at ¶ 17. Shortly after his admission, he...