Miller v. Luther

• Decision Date: 04 August 1992
• Docket Number: No. 91-2328,91-2328
• Citation: 489 N.W.2d 651,170 Wis.2d 429
• Parties: Elaine MILLER, Plaintiff-Respondent, d v. Thomas W. LUTHER, M.D., St. Paul Fire and Marine Insurance Co., Armenio Cordero, M.D., the Medical Protective Co. and Wisconsin Patients Compensation Fund, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 651

489 N.W.2d 651

170 Wis.2d 429

Elaine MILLER, Plaintiff-Respondent, ^d v. Thomas W. LUTHER, M.D., St. Paul Fire and Marine Insurance Co., Armenio Cordero, M.D., the Medical Protective Co. and Wisconsin Patients Compensation Fund, Defendants-Appellants.

No. 91-2328.

Court of Appeals of Wisconsin.

Submitted on Briefs July 1, 1992.

Opinion Released Aug. 4, 1992.

Opinion Filed Aug. 4, 1992.

[170 Wis.2d 433] On behalf of the defendants-appellants, Thomas W. Luther, M.D., St. Paul Fire & Marine Ins. Co. and Wisconsin Patients Compensation Fund, the cause was submitted on the briefs of Jonathan M. Menn of Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd. of Appleton.

On behalf of the defendants-appellants, Armenio Cordero, M.D. and The Medical Protective Co., the cause was submitted on the briefs of David Crist, Michael D. Golden and Nicholas J. Meeuwsen of Dempsey, Magnusen, Williamson & Lampe of Oshkosh.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Randall E. Reinhardt of Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, S.C. of Milwaukee.

On behalf of the Wisconsin Academy of Trial Lawyers, the cause was submitted on the amicus curiae brief of Virginia M. Antoine On behalf of the Civil Trial Counsel of Wisconsin, the cause was submitted on the amicus curiae brief of Peter J. Hickey of Everson, Whitney, Everson & Brehm, S.C. of Green Bay.

of Habush, Habush & Davis, S.C. of Milwaukee.

Before CANE, P.J., LaROCQUE and SULLIVAN, JJ.

CANE, Presiding Judge.

We granted Thomas Luther, M.D., St. Paul Fire & Marine Insurance Company, Wisconsin Patients Compensation Fund, Armenio Cordero, M.D., and The Medical Protective Company (collectively referred to as Luther) leave to appeal a nonfinal order denying their motion for summary judgment seeking to dismiss Elaine Miller's wrongful death action against them. Luther claims that Miller's action is barred by (1) the wrongful death entitlement statute, sec. 895.03, Stats., (2) the medical malpractice statute of limitation, sec. 893.55, and (3) res judicata. We conclude, pursuant to sec. 895.03, that Miller is not entitled to bring a wrongful death action against Luther because Lloyd Miller, her husband, had no cause of action against Luther at the time of his death. The order is reversed and the cause remanded with directions.

In May 1982, Luther examined and removed a mole from Lloyd Miller's back. The tissue was sent to Cordero who diagnosed it as skin cancer. In June, Luther removed the skin cancer and affected areas from Lloyd's back. Lloyd returned to Luther in April 1984, and Luther again submitted a tissue sample from Lloyd's back to Cordero who diagnosed malignant melanoma. Lloyd underwent surgery to excise the lesion/tumor. In April 1989, X-rays revealed that Lloyd had cancer in both of his lungs.

In 1990, Elaine and Lloyd Miller filed a medical malpractice action against Luther alleging that Drs. Luther and Cordero negligently diagnosed and treated Lloyd's cancer in May 1982. Lloyd Miller died on October 22, 1990. Miller filed a wrongful death action against Luther on November 23, 1990. On December 28, 1990, the trial court granted summary judgment in favor of Luther dismissing the Millers' medical malpractice action because it was barred by the medical malpractice statute of limitations, sec. 893.55, Stats. That dismissal was never appealed and, consequently, it is undisputed that Lloyd's action for damages anegedly caused by the malpractice is barred by the statute of limitations.

Luther then moved for summary judgment claiming that Miller's wrongful death action was barred by (1) the medical malpractice statute of limitation, sec. 893.55, Stats., (2) the wrongful death entitlement statute, sec. 895.03, Stats., and (3) res judicata. The trial court denied the motion because Miller's wrongful death action was filed within three years from her husband's death. We granted Luther's petition for leave to appeal.

We review summary judgments de novo. Grosskopf Oil v. Winter, 156 Wis.2d 575, 581, 457 N.W.2d 514, 517 (Ct.App.1990). The methodology for reviewing a summary judgment has been set forth many times, and it need not be repeated here. See Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980).

WRONGFUL DEATH ACTION

A wrongful death action, created by statute in Wisconsin in sec. 12, of ch. 135, of the Revised Statutes of 1858, allows a person to recover his or her own damages sustained because of the wrongful death of another. Terbush v. Boyle, 217 Wis. 636, 638, 259 N.W. 859, 860 (1935). It is based on the death loss act of the English statute, 9 & 10 Vict. 93, commonly referred to as "Lord Campbell's Act." Brown v. Chicago & N.W. Ry., 102 Wis. 137, 140, 77 N.W. 748, 749 (1899). A wrongful death action is a cause of action for the benefit of certain designated classes of surviving relatives, enabling them by statute to recover their own damages caused by the wrongful death of the decedent. Id. It is not an action that survives the decedent's death; it is a new action brought for the benefit of the statutory beneficiaries. Id. Further, a wrongful death action accrues at the time of the decedent's death. Terbush, 217 Wis. at 640, 259 N.W. at 861.

A wrongful death action should not be confused with an action brought on behalf of the decedent for the decedent's damages. By statute, a decedent's personal injury action survives his death. Brown, 102 Wis. at 141, 77 N.W. at 749; see also sec. 895.01, Stats. Such an action is vested with a decedent's personal representative and brought for the benefit of the decedent's estate. Brown, 102 Wis. at 140-42, 77 N.W. at 749-50.

A cause of action for wrongful death did not exist at common law. Wangen v. Ford Motor Co., 97 Wis.2d 260, 312, 294 N.W.2d 437, 463 (1980). It is a purely statutory remedy. Id. As such, it only exists and is actionable under the terms and conditions specified in the statutes, London Guar. & Acc. Co. v. Wisconsin PSC, 228 Wis. 441, 446, 279 N.W. 76, 78 (1938), and case law interpreting those statutes. Delvaux v. Vanden Langenberg, 130 Wis.2d 464, 493-94, 387 N.W.2d 751, 764 (1986). Sections 895.03 and 895.04, Stats., govern wrongful death actions.

Section 895.03, Stats., "Recovery for death by wrongful act," provides:

Whenever the death of a person shall be caused by a wrongful act ... and the act ... is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured.... (Emphasis added).

Section 895.03 is the wrongful death entitlement statute because it specifies the requirements entitling a person to bring a wrongful death action. See Delvaux, 130 Wis.2d at 494-96, 387 N.W.2d at 764-65. On the other hand, sec. 895.04, Stats., "Plaintiff in wrongful death action," specifies, among other things, who can bring the wrongful death action, what damages can be recovered and the maximum amount of damages for the beneficiary's loss of society and companionship.

Section 895.03, Stats., provides that an action for wrongful death may be brought only if the decedent's death was caused by a wrongful act and the act would have entitled the decedent to maintain an action and recover damages if death had not ensued. The requirement that the decedent have a cause of action for damages if death had not ensued is a condition that must exist in order for a beneficiary to bring a wrongful death action. See Waube v. Warrington, 216 Wis. 603, 605, 258 N.W. 497, 497 (1935). If that condition does not exist, the beneficiary cannot bring a wrongful death action. See id. at 605-15, 258 N.W. at 497-501.

Our supreme court has held that under sec. 895.03, Stats., where a decedent had no cause of action for his damages, the decedent's beneficiary is not entitled to bring a wrongful death action. In Waube, 216 Wis. at 605-13, 258 N.W. at 497-501, a husband was not entitled to bring a wrongful death action because his wife, had she lived, had no cause of action for emotional distress for the reason that she was not in the zone of danger. Also, where a decedent, if death had not ensued, had no cause of action against the defendant county because of municipal immunity, his spouse was not entitled to bring a wrongful death cause of action. See Mormon v. Douglas County, 224 Wis. 29, 271 N.W. 362 (1937). Further, in Demge v. Feierstein, 222 Wis. 199, 268 N.W. 210 (1936), overruled on other grounds in Sorensen v. Jarvis, 119 Wis.2d 627, 640 n. 10, 350 N.W.2d 108, 115 n. 10 (1984), (establishing a cause of action for vendor liability) a wrongful death action was not allowed where the decedent had no cause of action against a liquor vendor for injuries caused by an intoxicated vendee.

Also, there are cases where a wrongful death action was precluded under sec. 895.03, Stats., because the decedent was not entitled to recover damages had he lived. Where the decedent had a cause of action, but could not have recovered damages had he lived because his negligence exceeded the defendant's negligence, the beneficiary was barred from maintaining a wrongful death action. See Haase v. Employers Mut. Liab. Ins. Co., 250 Wis. 422, 432-33, 27 N.W.2d 468, 473 (1947); see also Delvaux, 130 Wis.2d at 492-96, 387 N.W.2d at 764-65.

Here, the alleged wrongful acts of Drs. Luther and Cordero are claimed to have caused Lloyd's death. Thus, Miller is entitled to maintain a wrongful death action against Luther only if her husband could have maintained an action and recovered damages had his death not ensued. At the time of the alleged wrongful act, Lloyd could have maintained an action for damages. However, at the time of his death, he could not have maintained an action for damages because he was barred by the medical...