Lornson v. Siddiqui

• Decision Date: 10 July 2007
• Docket Number: No. 2005AP2315.,2005AP2315.
• Citation: 735 N.W.2d 55,2007 WI 92
• Parties: Holly LORNSON, Individually, and as Successor Special Administrator of the Estate of Janice M. Sanders, and as Personal Representative of the Estate of Joseph D. Sanders, and Kim Hoertsch, Individually, and as Successor Special Administrator of the Estate of Janice M. Sanders, and as Personal Representative of the Estate of Joseph D. Sanders, Plaintiffs-Appellants, Tommy Thompson Secretary, Department of Health & Human Services, Involuntary-Plaintiff, v. Nadeem SIDDIQUI, M.D., Paul McAvoy, M.D., Matthew Williams, M.D., James E. Haine, M.D., John E. Almquist, M.D., Frederick W. Knoch, M.D., Affinity Medical Group/Affinity Health System, St. Elizabeth Hospital, Inc., The Medical Protective Company, Preferred Professional Insurance Company, and Wisconsin Patients Compensation Fund, Defendants-Respondents.
• Court: Wisconsin Supreme Court

735 N.W.2d 55

2007 WI 92

Holly LORNSON, Individually, and as Successor Special Administrator of the Estate of Janice M. Sanders, and as Personal Representative of the Estate of Joseph D. Sanders, and Kim Hoertsch, Individually, and as Successor Special Administrator of the Estate of Janice M. Sanders, and as Personal Representative of the Estate of Joseph D. Sanders, Plaintiffs-Appellants Tommy Thompson Secretary, Department of Health & Human Services, Involuntary-Plaintiff, v. Nadeem SIDDIQUI, M.D., Paul McAvoy, M.D., Matthew Williams, M.D., James E. Haine, M.D., John E. Almquist, M.D., Frederick W. Knoch, M.D., Affinity Medical Group/Affinity Health System, St. Elizabeth Hospital, Inc., The Medical Protective Company, Preferred Professional Insurance Company, and Wisconsin Patients Compensation Fund, Defendants-Respondents.

No. 2005AP2315.

Supreme Court of Wisconsin.

Argued October 11, 2006.

Decided July 10, 2007.

For the plaintiffs-appellants there were briefs by Lynn R. Laufenberg and Laufenberg & Hoefle, S.C., Milwaukee, and oral argument by Lynn R. Laufenberg.

For the defendants-respondents there was a brief by Michael P. Russart and Hinshaw & Culbertson LLP, Milwaukee; David Colwin and Sager, Colwin, Samuelsen & Associates, S.C., Fond du Lac; Terri L. Weber and Nash, Spindler, Grimstad & McCracken, LLP, Manitowoc; Peter J. Hickey and Everson, Whitney, Everson & Brehm, S.C., Green Bay, and oral argument by Michael P. Russart.

An amicus curiae brief was filed by Guy DuBeau and Axley Brynelson, LLP, Madison, on behalf of the Wisconsin Hospital Association, Inc. and the Wisconsin Medical Society, Inc.

An amicus curiae brief was filed by William C. Gleisner, III and Law Offices of William Gleisner, Milwaukee; D. James Weis and Habush, Habush & Rottier, S.C., Rhinelander, on behalf of the Wisconsin Academy of Trial Lawyers.

ON CERTIFICATION FROM THE COURT OF APPEALS

¶ 1 DAVID T. PROSSER, J

This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § 809.61 (2005-06).¹ Holly Lornson (Lornson) and Kim Hoertsch (Hoertsch) seek review of a circuit court order dismissing their wrongful death claims against Nadeem Siddiqui, M.D.; Paul McAvoy, M.D.; Matthew Williams, M.D.; James E. Haine, M.D.; John E. Almquist, M.D.; Frederick W. Knoch, M.D.; Affinity Medical Group/Affinity Health System; St. Elizabeth Hospital Inc.; The Medical Protective Company and the Preferred Professional Insurance Company (collectively, defendants).²

¶ 2 Lornson and Hoertsch are the adult daughters of Janice and Joseph Sanders, both deceased. They appear in this litigation in several capacities, but appear in this appeal as (1) personal representatives of their father's estate; and (2) individual claimants as adult children of their late mother.

¶ 3 During his lifetime, Joseph Sanders filed a wrongful death claim against the defendants for medical negligence in the death of his wife Janice. He died before his case could go to trial. His daughters, Lornson and Hoertsch, were appointed personal representatives for their father's estate, and, in that capacity, they pursued his wrongful death claim, citing Wis. Stat. § 895.01(1)(o). At the same time, in the alternative, they made their own individual claims for the wrongful death of their mother, citing Wis. Stat. § 895.04(2).

¶ 4 The circuit court dismissed these wrongful death claims on grounds that Lornson and Hoertsch lacked standing under the applicable statutes to maintain medical malpractice wrongful death claims. Lornson and Hoertsch appealed. The court of appeals certified the case to this court. After carefully reviewing the governing statutes and case law, we affirm. We hold that in wrongful death actions, an eligible claimant's cause of action does not survive the death of the claimant. Thus, Joseph Sanders' wrongful death claim does not survive. In a non-medical malpractice wrongful death case, under Wis. Stat. § 895.04(2), a new cause of action is available to the next claimant in the statutory hierarchy. In a medical malpractice wrongful death case, eligible claimants under Wis. Stat. § 655.007 are not subject to a statutory hierarchy like claimants under Wis. Stat. § 895.04(2). However, in a medical malpractice wrongful death case, adult children of the deceased (like Lornson and Hoertsch) are not listed as eligible claimants and are therefore not eligible because of the exclusivity of Wis. Stat. § 655.007, as interpreted in Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, 236 Wis.2d 316, 613 N.W.2d 120.

¶ 5 In addition, we hold that our interpretation of Wis. Stat. § 655.007 in conjunction with Wis. Stat. §§ 895.01(1)(o) and 895.04(2) does not deprive Joseph Sanders or his estate of a vested property right without due process or violate equal protection of the law. We remand the case to the circuit court for further proceedings on the separate claim of the estate of Janice M. Sanders.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 6 This appeal arises out of a medical malpractice wrongful death/survival action. On November 11, 2002, Janice Sanders died from complications of a large paraesophageal hiatal hernia. On October 22, 2003, Joseph Sanders filed a complaint against the defendants on behalf of himself individually and as special administrator of the estate of his deceased wife. In his complaint, Joseph Sanders alleged that defendants acted negligently by failing to timely diagnose and treat Janice Sanders' paraesophageal hernia. He alleged that the defendants' negligence led to Mrs. Sanders' excessive vomiting, aspiration, cardiopulmonary arrest, resuscitation, coma, and eventual death.

¶ 7 Joseph Sanders sought compensatory damages on behalf of his wife's estate for Mrs. Sanders' conscious pain and suffering before her death. He also sought compensatory damages on behalf of himself for the loss of society, companionship, and consortium of his wife; pecuniary loss of his wife's services; and medical, funeral, and burial expenses.

¶ 8 After initial discovery but before trial, Joseph Sanders died. On April 26, 2005, Joseph Sanders' counsel filed a motion for substitution of plaintiffs and for leave to file a supplemental complaint. The motion asked the court for three things: (1) an order substituting Lornson and Hoertsch for Joseph Sanders as successor special administrators of the estate of Janice Sanders; (2) an order appointing Lornson and Hoertsch as personal representatives of the estate of Joseph Sanders; and (3) an order allowing Lornson and Hoertsch to file a supplemental complaint. The court issued two orders, one that appointed Lornson and Hoertsch as personal representatives of their father's estate and one that appointed Lornson and Hoertsch as successor administrators of their mother's estate. By consent of the parties, a supplemental complaint was filed on May 3, 2005.

¶ 9 Lornson and Hoertsch sought compensatory damages under three theories of recovery: (1) on behalf of the estate of Janice Sanders in their capacities as special administrators; (2) on behalf of the estate of Joseph Sanders in their capacities as personal representatives; and (3) alternative to the second theory, on behalf of themselves in their individual capacities as the surviving daughters and lineal heirs of Janice Sanders.

¶ 10 All defendants joined in a motion to dismiss the wrongful death claim asserted on behalf of Joseph Sanders' estate, and in the alternative, on behalf of Lornson and Hoertsch individually. The defendants asserted Lornson and Hoertsch lacked standing to bring a wrongful death claim in their capacities as personal representatives of their father's estate or as individuals. The defendants argued that the wrongful death claim did not survive the death of Joseph Sanders and that Lornson and Hoertsch, in their individual capacities, were not eligible to make a medical malpractice wrongful death claim under Wis. Stat. § 655.007. The defendants conceded that the survival claim by the special administrators on behalf of Janice Sanders' estate was unaffected by Joseph Sanders' death.

¶ 11 The parties submitted their briefs, and on July 21, 2005, the Honorable Robert A. Hawley, judge of the Winnebago County Circuit Court, heard oral argument. The circuit court granted the defendants' motions to dismiss the wrongful death claims. The court reasoned that Wis. Stat. § 655.007 provided the exclusive list of claimants eligible to bring a medical malpractice action. It concluded that because the list in § 655.007 did not include adult children or a spouse's representative, the legislature did not intend for adult children or the spouse's representative to bring a wrongful death claim. The court also refused to apply the general provisions of the wrongful death statute in a medical malpractice case because those general provisions were not incorporated by reference into Chapter 655.

¶ 12 Lornson and Hoertsch filed a notice of appeal of the wrongful death dismissal, and the parties agreed to adjourn the trial of the estate's survival claim pending the resolution of this appeal. On May 17, 2006, the court of appeals certified the case to this court, asking us to address the issue of whether "a surviving spouse's wrongful death claim in a medical malpractice action survive[s] his or her own death such that his or her personal representatives have standing to pursue that claim." This court accepted certification on June 14, 2006. We also address the individual wrongful death claims of Mrs. Sanders' adult children.

II. STANDARD OF REVIEW

¶ 13 This case comes to us on review of a motion to dismiss. We address whether Lornson and Hoertsch (hereinafter Lornson) assert claims upon which relief can be granted. See Brew City Redevelopment Group, LLC v. Ferchill Group, 2006 WI 128, ¶ 15, 297 Wis.2d 606, 724 N.W.2d 879. This presents a question of law that we review de novo, benefiting from the certification memorandum and the...