Hofflander v. St. Catherine's Hospital, Inc., Sentry Insurance, 2003 WI 77 (Wis. 7/1/2003), No. 00-2467.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtDavid T. Prosser
Citation2003 WI 77
PartiesLori Hofflander, Plaintiff-Appellant Cross Petitioner, 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 Petitioners.
Decision Date01 July 2003
Docket NumberNo. 00-2467.

Page 1

2003 WI 77
Lori Hofflander, Plaintiff-Appellant Cross Petitioner, 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 Petitioners.
No. 00-2467.
Supreme Court of Wisconsin.
Opinion Filed: July 1, 2003.

REVIEW of a decision of the Court of Appeals. Affirmed in part and reversed in part and cause remanded. 2001 WI App 204 Reported at: 247 Wis. 2d 636, 635 N.W.2d 13 (Published)

For the defendants-respondents-petitioners St. Catherine's Hospital, Inc., Sentry Insurance Company and Patients Compensation Fund, there were briefs by John A. Nelson, Timothy W. Feeley and von Briesen, Purtell & Roper, S.C., Milwaukee and oral argument by John A. Nelson.

For the defendants-respondents-petitioners Horizon Mental Health Management, Inc. and Columbia Casualty Company, there were briefs by John K. Hughes and Gessler, Hughes, Socol, Piers, Resnick & Dym, Ltd., Chicago, Illinois, and oral argument by John K. Hughes.

For the plaintiff-appellant-cross petitioner, there were briefs by Jerome A. Hierseman and Gray & End, L.L.P., Milwaukee and oral argument by Jerome A. Hierseman.

For the plaintiff-co-appellant, there was a brief by Louis Edward Elder, principal assistant corporation counsel.

An amicus curiae brief was filed by Timothy J. Aiken, David M. Skoglind and Aiken & Scoptur, S.C., Milwaukee for Wisconsin Academy of Trial Lawyers, with oral argument by Timothy J. Aiken.

DAVID T. PROSSER, J.


¶ 1 This is a review of a published decision of the court of appeals.1 We are asked to address multiple issues related to injuries sustained by Lori Hofflander (Hofflander) during her December 1996 stay in the Behavioral Services Unit of St. Catherine's Hospital in Kenosha.

¶ 2 Hofflander was involuntarily committed to the hospital as a suicide precaution. Two days later, she attempted to escape through a third-floor window in another patient's room, after ripping a loose air conditioner out of its window mounting. As Hofflander climbed out of the window, she lost her grip and fell to the ground, sustaining severe injuries.

¶ 3 Hofflander sued the hospital and other named defendants to recover damages for these injuries.2 The Circuit Court for Kenosha County, Mary Kay Wagner-Malloy, Judge, granted the defendants' motions for summary judgment on all of Hofflander's substantive claims. The court of appeals reversed on her claims of negligence and safe place violations and remanded the action for jury trial. We granted the defendants' petition for review.

¶ 4 In Jankee v. Clark County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297, we reaffirmed the rule that a person with mental disability has a duty to exercise ordinary care. Such a person may be found contributorily negligent for his or her own injuries when the person fails to exercise ordinary care for his or her own safety.3 We also recognized, however, that a health care institution takes on a heightened duty of care when it assumes custody and control of a person with a mental disability. In these circumstances, the institution may lose its affirmative defense of contributory negligence even though the mentally disabled person caused her own injury.

¶ 5 The primary issue in this case is how the "custody and control rule" of Jankee, as applied to specific facts, affects the defendants' affirmative defense of contributory negligence. In determining this issue, we are urged to clarify and restate the applicable principles of tort law that we attempted to articulate in Jankee.

¶ 6 We reach the following conclusions. First, genuine issues of material fact exist whether St. Catherine's Hospital and Horizon Mental Health Management knew or should have foreseen Lori Hofflander's risk of elopement from the hospital. The resolution of these disputed factual issues affects the respective defendants' duty of care and thus precludes the entry of summary judgment.

¶ 7 Second, if Lori Hofflander is able to establish that (1) the defendants assumed a special relationship with her that required a heightened duty of care; (2) the defendants should have known or foreseen her risk of elopement from the hospital; and (3) there is some evidence of the defendants' failure to exercise their heightened duty of care, then Hofflander's contributory negligence should be measured under a subjective duty of self-care. This subjective duty of care requires the trier of fact to weigh Hofflander's mental state at the time of her accident, including her capacity to appreciate her own conduct.

¶ 8 Third, Lori Hofflander's claim under Wisconsin's safe place statute is barred because her own negligent conduct, rather than a loose air conditioning unit, caused her injury. Hofflander is barred from recovery under this theory, irrespective of whether she is deemed a trespasser at the time of her injury. However, contrary to the court of appeals, we hold that a person involuntarily committed to a locked psychiatric unit may be deemed a trespasser under the traditional analysis for determining trespasser status in Wisconsin.

¶ 9 Finally, materials produced by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) while conducting site surveys of St. Catherine's Behavioral Services Unit were properly excluded from discovery based on the privilege granted under Wis. Stat. § 146.38 (1999-2000).4

I. FACTUAL BACKGROUND

¶ 10 Late in the evening of Saturday, December 28, 1996, Lori Hofflander was involuntarily committed to the Behavioral Services Unit (Unit) at St. Catherine's Hospital in Kenosha, under an emergency detention.5 She was taken to the hospital after Kenosha police had been dispatched to her apartment in response to reports that Hofflander was threatening suicide. At the apartment, officers encountered Carol Underwood, Hofflander's mother, and Pam Stewart, one of Hofflander's friends, who had hurried to the apartment because Hofflander had made at least two suicide threats earlier in the evening. Both women said that they had spoken to Hofflander's former husband, who said he had received a telephone call from Hofflander saying that she would be dead in one hour. Police observed that Hofflander was uncooperative and had erratic mood swings. She was also under the influence of alcohol and Valium, which is the drug that she had told Stewart she would use to kill herself. Stewart advised police that Hofflander used cocaine and heroin; and at the hospital, a St. Catherine's security officer found some drug paraphernalia in a trash can in a bathroom used by Hofflander.

¶ 11 In written statements, Underwood and Stewart declared that Hofflander had indicated on previous occasions that she wanted to kill herself, but Underwood noted: "I never called the police before." Both women said that Hofflander desperately needed help. Stewart also explained that Hofflander had been distraught about losing custody of her children and about some recent brushes with the law, including at least one alcohol-related traffic arrest. At the hospital, Hofflander was interviewed by an adult crisis counselor who advised that Hofflander was a good candidate for emergency detention.

¶ 12 The following day, December 29, Dr. Ligay Ilagan-Newman completed a history and physical examination of Hofflander at St. Catherine's. She diagnosed Hofflander with dysthymia6 and borderline personality disorder. Dr. Ilagan-Newman determined that the suicide precaution initially ordered for Hofflander be discontinued. She also noted that Hofflander was anxious to leave the facility because she wanted to move promptly into a different, less expensive apartment. Hofflander was placed in Room 307B of the hospital's locked psychiatric unit, which is located on one wing of the hospital's third floor.

¶ 13 According to hospital records, Pam Stewart notified the Unit that Sunday morning about Hofflander having called and threatened her, saying: "When I get out of here I'll get even." A second entry that morning indicates that another patient reported that Hofflander claimed she had a plastic glove and planned to kill herself with it. A nurse subsequently found the glove on Hofflander's bed.7 According to the entry, Hofflander told the nurse: "If I want to kill myself I will. I could break out of here if I want."

¶ 14 On Monday, December 30, there was an entry at 10:30 a.m., indicating that Hofflander denied suicidal ideation but acknowledged a plan "to flee as [she] has 5 warrants in Ill. for DUI, driving . . . revocation, failure to appear, etc." At 2:40 p.m., a social worker noted that "She is very concerned about the apartment she is living in, and is supposed to vacate before Jan. 1."

¶ 15 At approximately 5:15 p.m. that day, Dr. Ashokkumar Shah, Hofflander's attending psychiatrist, interviewed Hofflander after reviewing Dr. Ilagan-Newman's assessment and all patient records prepared since Hofflander's admission. Shah found Hofflander to be alert with labile affect, mildly irritable, and sarcastic. Hofflander denied having drug and alcohol problems despite a positive drug screening and statements from her family and Stewart that she had been using controlled substances. Dr. Shah determined that Hofflander did not have suicidal ideation or psychotic features. The interview reportedly concluded at about 5:40 p.m., at which time Dr. Shah went to the Unit's nurses' station and began entering a notation of his plan to decrease her Valium, continue Prozac, and allow Hofflander to sign for voluntary outpatient treatment "once stable."8 Dr. Shah also requested that Nurse Cathy Witheril check on Hofflander to see if she was okay, because Hofflander had been irritable during the interview.

¶ 16 Following Dr. Shah's request, Witheril went to Hofflander's room and discovered her putting on her high-top shoes...

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