Konkel v. Acuity

Decision Date11 August 2009
Docket NumberNo. 2008AP2156.,2008AP2156.
Citation775 N.W.2d 258,2009 WI App 132
PartiesLisa KONKEL and Kevin Konkel, Plaintiffs, United Healthcare of Wisconsin, Inc., Involuntary-Plaintiff, v. ACUITY, A Mutual Insurance Company and Nancy Lynch, Defendants-Third-Party Plaintiffs-Appellants,<SMALL><SUP>&#x2020;</SUP></SMALL> v. Midwest Neurosurgical Associates, S.C. and Dr. Arvind Ahuja, M.D., Third-Party Defendants-Respondents.
CourtWisconsin Court of Appeals

On behalf of the defendants-third-party plaintiffs-appellants, Acuity, a mutual insurance company, and Nancy Lynch, the cause was submitted on the briefs of Arthur P. Simpson and Christine M. Rice of Simpson & Deardorff, S.C., of Milwaukee, with oral argument by Arthur P. Simpson.

On behalf of the third-party defendants-respondents, the cause was submitted on the brief of Todd M. Weir and Jason J. Franckowiak of Otjen, Van Ert & Weir, S.C., of Milwaukee, with oral argument by Todd M. Weir.



Acuity, a Mutual Insurance Company, and its insured, Nancy Lynch (collectively referred to as Acuity unless otherwise specified) appeal from a summary judgment order dismissing their action against Midwest Neurosurgical Associates, S.C., and Arvind Ahuja, M.D. (collectively referred to as Dr. Ahuja unless otherwise specified). Acuity argues that it should be reimbursed for the expenses related to what it contends was an unnecessary surgery performed by Dr. Ahuja on Lisa Konkel.

¶ 2 At issue are the rights of an alleged tortfeasor, following Hanson v. American Family Mutual Insurance Co., 2006 WI 97, 294 Wis.2d 149, 716 N.W.2d 866, to recover in subrogation against a plaintiff's health care provider for unnecessary treatment. Pursuant to Hanson, if a plaintiff is injured in an accident, an alleged tortfeasor must pay for damages related to the plaintiff's unnecessary surgery if he or she exercised ordinary care in selecting the surgeon. Id., ¶ 27. Resolution of this appeal centers on whether the alleged tortfeasor can then seek subrogation from the health care provider for payment of damages related to the unnecessary medical treatment. We conclude that: Acuity's subrogation claim fails under WIS. STAT. ch. 655 (2007-08); "as applied" to Acuity, ch. 655 does not violate guarantees of equal protection; and public policy considerations support this determination.1 Accordingly, we affirm.


¶ 3 This appeal arises out of a motor vehicle accident on April 28, 2005, involving vehicles operated by Konkel and Lynch. Konkel and her husband filed a personal injury lawsuit against Lynch and Acuity alleging that Lynch's negligent operation of her vehicle caused them injuries.2 As relevant here, Konkel sought to recover damages related to a cervical decompression and arthrodesis surgery she claimed was necessitated by injuries she sustained in the accident. Konkel's surgery was performed by Dr. Ahuja of Midwest Neurosurgical Associates, S.C.

¶ 4 Acuity filed a third-party complaint against Dr. Ahuja and Midwest Neurosurgical Associates, S.C., alleging that the surgery performed on Konkel was medically unnecessary.3 In the event it was determined that Konkel exercised reasonable care in selecting Dr. Ahuja, but that the surgery was medically unnecessary, Acuity sought an award of indemnity from Dr. Ahuja and Midwest Neurosurgical Associates, S.C., for payment of all damages incurred because of the unnecessary surgery.

¶ 5 Dr. Ahuja moved for summary judgment, arguing: (1) that Acuity lacked standing to bring a medical malpractice action against a health care provider in Wisconsin; (2) that Acuity's third-party claim was at odds with the purpose behind WIS. STAT. ch. 655; and (3) that Acuity's third-party claim was barred on public policy grounds because it creates an inappropriate burden upon the physician-patient relationship. Dr. Ahuja has consistently denied that he was negligent in his treatment of Konkel, and in support of his summary judgment motion, Konkel provided an affidavit stating that she has "no complaints concerning the care and treatment Dr. Ahuja ... provided [her], and continues to provide [her], as [her] treating neurosurgeon."4

¶ 6 Acuity subsequently filed an amended third-party complaint adding a subrogation claim. Acuity asserted that it was both subrogated to the rights of Konkel and entitled to indemnity from Dr. Ahuja in the event it was determined that Konkel exercised reasonable care in selecting Dr. Ahuja, but that the surgery was medically unnecessary. Specifically, Acuity sought to recover "all damages [it] incur[s] because of the unnecessary medical surgery, including the charges for the surgery and all care related to the surgery, as well as any pain and suffering awarded by a jury because of the surgical procedure." In opposing Dr. Ahuja's summary judgment motion, Acuity submitted two expert reports concluding that the surgery performed by Dr. Ahuja was medically unnecessary. Prior to when Dr. Ahuja's answer to the amended third-party complaint was due, the trial court granted his summary judgment motion. Acuity now appeals.

A. Standards of Review.

¶ 7 We review de novo a trial court's rulings on summary judgment and apply the governing standards "just as the trial court applied those standards." Green Spring Farms v. Kersten, 136 Wis.2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment must be granted when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). A party that has the burden of proof at trial in connection with a claim has the burden to show that there are genuine issues of material fact that require a trial on that claim. Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis.2d 281, 290, 507 N.W.2d 136 (Ct.App.1993).

¶ 8 This appeal involves the interpretation and application of various statutory provisions found within WIS. STAT. ch. 655. Because statutory interpretation presents questions of law, our review is de novo. Lornson v. Siddiqui, 2007 WI 92, ¶ 14, 302 Wis.2d 519, 735 N.W.2d 55. We begin with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. That language is given its common, ordinary, and accepted meaning. Id. We interpret language in the context in which it is used, in relation to the language of surrounding or closely related statutes, and in a way that avoids absurd results. Id., ¶ 46. We also consider the purpose of the statute so far as the purpose is shown in the text and structure of the statute. Id., ¶ 48.

¶ 9 As part of our analysis, we will address whether the application of WIS. STAT. ch. 655 to Acuity's claim violates equal protection guarantees. "The constitutionality of a statute is a question of law we review without deference to the [trial] court." State v. Quintana, 2007 WI App 29, ¶ 19, 299 Wis.2d 234, 729 N.W.2d 776. Similarly, whether public policy considerations preclude liability is a question of law subject to our independent determination. Gould v. American Family Mut. Ins. Co., 198 Wis.2d 450, 461, 543 N.W.2d 282 (1996).

B. WISCONSIN STAT. ch. 655 precludes Acuity's claim against Dr. Ahuja.

¶ 10 As an initial matter, we note that based on the record before us, Acuity has abandoned its claim for indemnification, and instead pursues only its subrogation claim. See Reiman Assocs., Inc. v. R/A Adver., Inc., 102 Wis.2d 305, 306 n. 1, 306 N.W.2d 292 (Ct.App.1981) (issues not briefed are deemed abandoned). To assert a valid subrogation claim, Acuity was required to make a payment to Konkel, and there is no evidence of payment in the appellate record.5 See Muchow v. Goding, 198 Wis.2d 609, 626, 544 N.W.2d 218 (Ct. App.1995) ("Payment is the sine qua non for subrogation."). Citing WIS. STAT. § 803.05(1), however, Acuity argues that Wisconsin law supports contingent third-party claims such as the one it asserts in this matter. Because we address the issues raised by Acuity as if it had made the requisite payment to support a valid subrogation claim, we need not resolve whether § 803.05 allows Acuity to circumvent the payment requirement. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (unnecessary to decide nondispositive issues).6

1. Acuity's subrogation claim is no longer valid.

¶ 11 Acuity contends that its subrogation claim in this matter has been recognized by the common law and that it is not abolished by WIS. STAT. ch. 655. As such, Acuity contends that it has the right to "stand in the shoes" of Konkel and seek reimbursement for her allegedly unnecessary care. See Wilmot v. Racine County, 136 Wis.2d 57, 63, 400 N.W.2d 917 (1987) ("[A] subrogee is one who steps into the shoes of the subrogor to the extent it has made payment as a result of the actionable event."). In support of its position, Acuity relies exclusively on cases predating the enactment of WIS. STAT. ch. 655.7 See, e.g., Hartley v. St. Francis Hosp., 24 Wis.2d 396, 129 N.W.2d 235 (1964), modified by 24 Wis.2d 396, 130 N.W.2d 1 (1964); Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919 (1951); Noll v. Nugent, 214 Wis. 204, 252 N.W. 574 (1934); Retelle v. Sullivan, 191 Wis. 576, 211 N.W. 756 (1927); Fisher v. Milwaukee Elec. Ry. & Light Co., 173 Wis. 57, 180 N.W. 269 (1920). Acuity argues that the aforementioned cases were not affected by the enactment of ch. 655. We disagree.

¶ 12 We conclude that WIS. STAT. ch. 655 extinguished Acuity's subrogation claim. See State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 509, 261 N.W.2d 434 (1978) ("Like the Workmen's Compensation Act, Chapter 655, Stats., was enacted in response to a perceived economic and social crisis. Like the Workmen's Compensation Act, it applies only to a limited class of injured persons. Both laws modify the common law procedures for redress of personal injuries."). The legislature is presumed to have been aware of the...

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3 cases
  • State v. Hirsch
    • United States
    • Wisconsin Court of Appeals
    • March 12, 2014
    ... ... , equal protection is violated only if the classification rests upon grounds wholly irrelevant to the achievement of the state's objective.” Konkel v. Acuity, 2009 WI App 132, ¶ 27, 321 Wis.2d 306, 775 N.W.2d 258 (quoting State v. Smet, 2005 WI App 263, ¶ 21, 288 Wis.2d 525, 709 N.W.2d 474). In ... ...
  • Rivers v. B Braun Interventional Sys.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • October 31, 2023
    ...v. Acuity, 2009 WI.App. 132, 321 Wis.2d 306, 775 N.W.2d 258, is distinguishable. Nancy Lynch injured Lisa Konkel in a motor vehicle accident. Id. at ¶ 3. Konkel treatment for her injuries from Dr. Arvind Ahuja. Id. Acuity, Lynch's insurer, alleged that Ahuja's treatments were unnecessary an......
  • State v. Klotz, 2011AP2802–CR.
    • United States
    • Wisconsin Court of Appeals
    • June 19, 2013
    ...violated only if the classification rests upon grounds that are wholly irrelevant to the achievement of the State's objectives. Konkel v. Acuity, 2009 WI App 132, ¶ 27, 321 Wis.2d 306, 775 N.W.2d 258. ¶ 9 Here, we are satisfied that the Magnuson rule does not violate Klotz's right to equal ......

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