Lewis v. Physicians Ins. Co.

• Decision Date: 13 June 2001
• Docket Number: No. 99-0001.,99-0001.
• Citation: 2001 WI 60,627 N.W.2d 484,243 Wis.2d 648
• Parties: Norvin LEWIS and Delores Lewis, Plaintiffs-Respondents-Petitioners, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, Jay Seldera, M.D. and Wisconsin Patients Compensation Fund, Defendants-Appellants, LAKELAND MEDICAL CENTER, The Dean Health Plan, Inc. and Donna Shalala, Defendants.
• Court: Wisconsin Supreme Court

243 Wis.2d 648

2001 WI 60

627 N.W.2d 484

Norvin LEWIS and Delores Lewis, Plaintiffs-Respondents-Petitioners, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, Jay Seldera, M.D. and Wisconsin Patients Compensation Fund, Defendants-Appellants, LAKELAND MEDICAL CENTER, The Dean Health Plan, Inc. and Donna Shalala, Defendants.

No. 99-0001.

Supreme Court of Wisconsin.

Oral argument January 4, 2001.

Decided June 13, 2001.

For the plaintiffs-respondents-petitioners there was a brief by Timothy J. Aiken, James C. Gallanis and Aiken & Scoptur, S.C., Milwaukee, and oral argument by Timothy J. Aiken.

For the defendants-appellants there was a brief by Christopher P. Riordan, Marianne Morris Belke and Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, and oral argument by Christopher P. Riordan.

¶ 1. JON P. WILCOX, J.

The issue in this case is whether a surgeon can be vicariously liable for the negligence of two hospital nurses who failed to count accurately the sponges used in a surgical procedure. Because the plaintiff has not presented a viable doctrine for imposing vicarious liability on the surgeon under existing Wisconsin law and because we decline to adopt the "captain of the ship" theory for Wisconsin, we conclude that the surgeon cannot be held vicariously liable for the negligence of the two hospital nurses.

¶ 2. The plaintiff in this case, Norvin Lewis (Lewis), asserted that the defendant, Jay Seldera, M.D. (Seldera), was vicariously liable for the failure of two hospital nurses, employed by Lakeland Medical Center (Lakeland) in Elkhorn, Wisconsin, to count accurately the number of sponges used in Lewis' gallbladder surgery. As a result of their inaccurate count, a sponge was left in Lewis' abdomen. Lewis stipulated to the fact that Seldera was not negligent. The Circuit Court for Milwaukee County, Michael D. Goulee, Judge, awarded Lewis $150,000, set off by $50,000 from his settlement with Lakeland. The court of appeals reversed the circuit court's decision. For the following reasons, we now affirm the court of appeals' ruling.

I

¶ 3. The parties have stipulated to the relevant facts. Seldera removed Lewis' gallbladder at Lakeland on November 8, 1993. During the surgery, Seldera packed off the gallbladder with laparotomy¹ pads (sponges). Nurses Patricia Vickery (Vickery) and Ellen Chapman (Chapman) were in charge of counting the sponges. Under Lakeland's procedures, the nurses, not Seldera, were responsible for counting the sponges and overseeing the counting of the sponges. Indeed, Chapman, the "circulating nurse" assigned to the operation, had an independent duty delineated in the administrative code to count the sponges. See Wis. Admin. Code § HFS 124.13(7) (Oct., 2000) (the "`circulating nurse'" is "a registered nurse who is present during an operation. . .who, before the surgical procedure. . .is completed,. . .ensures that the sponge, needle and instrument counts have been done according to hospital policy"). Both Vickery and Chapman were employed by Lakeland, not Seldera. According to the medical records from the surgery, Vickery and Chapman counted the number of sponges used on four occasions and they thought that the correct number of sponges had been collected at the end.

¶ 4. However, Lewis began to have problems and Seldera operated again on January 30, 1994. During this second surgery, a retained sponge was discovered. After this sponge was removed, Lewis recovered. He then brought suit against Lakeland and Seldera.

¶ 5. Prior to trial, Lakeland agreed that it was responsible for the actions of its employees, Vickery and Chapman. Because Lakeland was a county-owned hospital at the time of the surgery, its liability for the negligence of Vickery and Chapman was limited to $50,000. See Wis. Stat. § 893.80(3) (1993-94).² After settling with Lakeland for the maximum amount allowed under § 893.80(3), Lewis pursued this case against Seldera. In consideration for Seldera's stipulation to the above facts, Lewis dropped all claims except for the allegation that Seldera could be held vicariously liable for Vickery and Chapman's negligence. Both parties moved for summary judgment on the issue of whether Seldera could be so held liable.

¶ 6. The circuit court issued an oral decision, finding "as a matter of law, that [Seldera] is, in fact, responsible and liable for the actions of the parties that were in the operating room with him and working under his supervision." The circuit court maintained that the "doctor is the captain of the ship. That the doctor is responsible for everything." Seldera appealed.

¶ 7. The court of appeals reversed the circuit court's ruling. Lewis v. Physicians Ins. of Wisconsin, 2000 WI App 95, ¶ 14, 235 Wis. 2d 198, 612 N.W.2d 389. Judge Fine, writing for the court, rejected the argument that Seldera could be liable for the negligence of the nurses by distinguishing our decision in Fehrman v. Smirl, 25 Wis. 2d 645, 131 N.W.2d 314 (1964) (Fehrman II)³, which held that two doctors could be held liable for a single injury. Judge Fine further observed that "[n]o appellate court in Wisconsin has used the `captain of the ship' doctrine to impose liability in a medical malpractice case, and the doctrine has generally lapsed into disuse elsewhere with the passage of time." Lewis, 2000 WI App 95, ¶ 13. Therefore, the court of appeals declined to apply that doctrine to the present case. Id.

¶ 8. Lewis subsequently appealed and this court accepted his petition for review.

II

[1]

¶ 9. This case is before us on a grant of summary judgment. Because the parties have stipulated to the facts, this appeal only raises a question of law, which we review de novo. L.L.N. v. Clauder, 209 Wis. 2d 674, 682, 563 N.W.2d 434 (1997).

¶ 10. At the outset, we note that Lewis is not contending that Vickery and Chapman were employed by Seldera or that Vickery and Chapman were "borrowed servants."⁴ Nor is Lewis contending that Seldera was responsible for counting the sponges. Instead, this case turns on whether Seldera is vicariously liable for the negligence of Vickery and Chapman under our holding in Fehrman II or whether we adopt the "captain of the ship" doctrine.

[2-4]

¶ 11. It is a basic principle of law, as well as common sense, that one is typically liable only for his or her own acts, not the acts of others.⁵ Nevertheless, the law in certain circumstances will impose "vicarious liability" on a non-negligent party. Vicarious liability is "[l]iability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties." Black's Law Dictionary 927 (7th ed. 1999). There is a tension, then, between the basic principle of individual responsibility under the law on the one hand and the imposition of vicarious liability on an innocent party for a tortfeasor's acts on the other hand. Because vicarious liability is a severe exception to the basic principle that one is only responsible for his or her own acts, we proceed with caution when asked to impose vicarious liability on an innocent party, doing so only in accordance with well-settled law.

[5, 6]

¶ 12. One well-settled doctrine for imposing vicarious liability is respondeat superior, which allows a non-negligent employer to be held liable for an employee's actions. See Shannon v. City of Milwaukee, 94 Wis. 2d 364, 370, 289 N.W.2d 564 (1980) ("Under the doctrine of respondeat superior an employer can be held vicariously liable for the negligent acts of his employees while they are acting within the scope of their employment."). Respondeat superior is perhaps the most familiar context in which vicarious liability is imposed. It arises due to the employer's control or right of control over the employee; because of this control or right of control, the negligence of the employee is imputed to the employer in certain circumstances. Arsand v. City of Franklin, 83 Wis. 2d 40, 46, 264 N.W.2d 579 (1978); Wis JI—Civil 4030 (1994). Indeed, in the present case, the hospital admitted that it could be held vicariously liable for the negligence of the two nurses under the doctrine of respondeat superior. Lewis, however, does not argue that Seldera is vicariously liable for the negligence of Vickery and Chapman under the doctrine of respondeat superior; instead, he contends that Seldera is vicariously liable under our holding in Fehrman II or alternatively, under the "captain of the ship" doctrine. We examine each of his theories for imposing vicarious liability on Seldera in turn.

¶ 13. In Fehrman v. Smirl, 20 Wis. 2d 1, 6-7, 121 N.W.2d 255 (1963) (Fehrman I), the plaintiff's surgeon, Smirl, asked another surgeon, McDonnell, to assist with treating the defendant after Smirl had removed the defendant's prostate gland. The plaintiff was injured during the course of this treatment and filed an action against Smirl. Id. at 1-9. During the jury's deliberations, it raised a question regarding Smirl's responsibility relative to McDonnell's responsibility. Fehrman II, 25 Wis. 2d at 654. The circuit court responded that Smirl "would be responsible for any failure upon the part of Dr. McDonnell to exercise such care and skill" and Smirl objected on the ground that this response may have led the jury to impose liability on him for negligence committed by McDonnell. Id. at 654-55. Justice Gordon, writing for the majority of this court, but not agreeing with it on this issue, stated the majority's holding as such: "under the circumstances of this case, Dr. Smirl either was in charge of the patient or was acting jointly with Dr. McDonnell." Id. at 656. Therefore, this court upheld the circuit court's response to the jury's question. Id. Lewis characterizes our holding in Fehrman II as imposing vicarious liability on a doctor whenever the doctor continues to actively care for and participate in the treatment of the patient. His reading is too...