Phelps v. Physicians Ins. Co. of Wisconsin

Decision Date04 December 2007
Docket NumberNo. 2006AP2599.,2006AP2599.
Citation744 N.W.2d 880,2008 WI App 6
PartiesGregory PHELPS, Marlene L. Phelps, Estate of Adam Phelps, Deceased, by his Special Administrator, Gregory G. Phelps, Caroline Phelps and Kyle Phelps, minors, by their Guardian ad Litem, William M. Cannon, Plaintiffs-Respondents-Cross-Appellants v. PHYSICIANS INSURANCE CO. OF WISCONSIN, INC., a Wisconsin insurance corporation, Matthew Lindemann, M.D., Defendants-Appellants-Cross-Respondents.
CourtWisconsin Court of Appeals

On behalf of the defendants-appellants-cross-respondents, the cause was submitted on the briefs of Michael B. Van Sicklen, Mark L. Langenfeld, and Matthew D. Lee of Foley & Lardner, LLP, of Milwaukee, with oral argument by Michael B. Van Sicklen.

On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of William M. Cannon, Sarah F. Kaas and Edward E. Robinson of Cannon & Dunphy, S.C., of Brookfield, with oral argument by William M. Cannon.



Physicians Insurance Company of Wisconsin, Inc. and Matthew Lindemann, M.D. (collectively referred to as PIC), appeal the trial court's order reinstating the $200,000 award to Gregory Phelps (Gregory) for his emotional distress and permanent injuries caused as a result of witnessing the birth of his son, Adam, who died due to the negligence of Dr. Lindemann and St. Joseph's Hospital, as determined in a bench trial.1 Gregory, Marlene, Caroline Adam's estate and Kyle Phelps cross-appeal the trial court's order finding that Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital. Because Dr. Lindemann was not a "borrowed employee" and the award for emotional distress was properly reinstated because the caps on damages contained in WIS. STAT. ch. 655 (1997-98) do not cover Dr. Lindemann's negligence, we affirm the reinstatement of emotional distress damages and reverse the ruling that Dr. Lindemann is a "borrowed employee."2


¶ 2 This appeal follows a remand from the supreme court to the trial court. The relevant facts found in the supreme court decision are set forth in this opinion. See Phelps v. Physicians Ins. Co. of Wis., 2005 WI 85, ¶¶ 5-13, 282 Wis.2d 69, 698 N.W.2d 643 (Phelps II).

¶ 3 Marlene Phelps (Marlene) discovered that she was pregnant with twins in June 1998. Soon thereafter, she started bleeding and was successfully treated at St. Joseph's Hospital in Milwaukee. After that episode, she was placed on strict home bed rest.

¶ 4 Marlene's pregnancy progressed without incident until October 18, 1998, when another bleeding episode occurred. She was admitted to St. Joseph's Hospital and continued her program of bed rest. Two days later, an ultrasound revealed that one of the twins was a breech presentation (legs first). Based on this finding, Marlene was deemed a high-risk patient who required a c-section for delivery of the twins.

¶ 5 In the early morning of November 24, 1998, Marlene was awakened with constant suprapubic pain. The on-call resident, Dr. Matthew Lindemann, was contacted. Dr. Lindemann was an unlicensed first-year resident and, according to the trial court's findings of facts, was an employee of the Medical College of Wisconsin Affiliated Hospital (MCWAH). His primary duty was to assess and report findings and differential diagnoses to an upper-level senior resident or to the attending obstetrician. He had no authority, however, to provide primary obstetrical care or perform a c-section on Marlene.

¶ 6 Dr. Lindemann ordered lactated ringers to be administered at 2:40 a.m. for suspected contractions. They did not alleviate Marlene's pain. At 3:00 a.m., Dr. Lindemann reached a differential diagnosis of pubic symphysis pain, bladder pain, labor or placental abruption. Accordingly, he ordered a foley catheter to determine if Marlene had a bladder infection. The urinalysis returned at 3:50 a.m. indicated that she did not.

¶ 7 Due to the continued pain she was experiencing, Marlene requested at 4:15 a.m. that the attending nurse call Dr. Lindemann again. Fetal heart monitoring and an ultrasound established that the twins' heart rates were within normal ranges. Dr. Lindemann informed Marlene that he would take a picture of the ultrasound so that he could consult with an upper-level senior resident.

¶ 8 After this examination, Dr. Lindemann ordered a potent narcotic, Demerol, to be administered to Marlene at 4:50 a.m. and 5:20 a.m. Dr. Lindemann never satisfactorily explained his whereabouts between 4:15 a.m. and 6:00 a.m. However, there is no evidence that he ever contacted an upper-level senior resident to discuss Marlene's case.

¶ 9 Marlene remained in pain when Dr. Lindemann examined her again at 6:00 a.m. At 6:45 a.m., her husband Gregory arrived, at the hospital. Marlene informed Gregory that she felt the need to defecate and asked for assistance to get to the commode. At 7:00 a.m., while sitting on the commode, she reached down and felt toes extending from her.

¶ 10 Her husband rushed to the nurses' desk where he found another doctor, who delivered Adam Phelps (Adam) at 7:20 a.m. Adam was immediately rushed to the neonatal intensive care unit where resuscitation efforts began. The efforts proved unsuccessful, and he was pronounced dead at 7:36 a.m. Adam's death was caused from a combination of asphyxia due to cord entrapment and placental abruption, which impaired his oxygen supply.

¶ 11 During this time, Marlene was rushed from her room to the operating room whore anesthesia was administered at 7:30 a.m. The second twin, Kyle, was delivered at 7:43 a.m. Afterward, the treating physicians questioned Dr. Lindemann about his decisions, his whereabouts and his diagnosis. Dr. Lindemann's responses were primarily that he did not know or remember.

¶ 12 Marlene, Gregory and their two surviving children (the Phelpses) filed suit against Dr. Lindemann and his insurer, PIC. PIC filed an answer and demanded a jury trial. PIC, however, failed to pay the jury fee within the time required by the scheduling order. PIC sought to enlarge the time to pay the jury fee. The Phelpses opposed PIC's motion. The trial court refused to extend the time for the payment of the jury fees and the trial court held a bench trial.

¶ 13 At the conclusion of the lengthy trial, the trial court found that Dr. Lindemann and St. Joseph's Hospital were both causally negligent. Prior to trial, the trial court explained that because Dr. Lindemann was a first-year resident and unlicensed to practice medicine, he did not fall within the definition of a physician found in WIS. STAT. § 655.001(10m),3 and he was not entitled to the protection of chapter 655 of the statutes. As noted by this court in an earlier appeal, "The legislature has unambiguously declared that the cap on noneconomic damages in WIS. STAT. § 893.55(4)(b) applies only to those who are health-care providers under WIS. STAT. ch. 655, and to `employees of health care providers' as the phrase is further limited by § 893.55(4)(b)." Phelps v. Physicians Ins. Co. of Wis., 2004 WI App 91, ¶ 45, 273 Wis.2d 667, 681 N.W.2d 571 (Phelps I), rev'd on other grounds by Phelps II, 282 Wis.2d 69, 698 N.W.2d 643.

¶ 14 The trial court concluded that Dr. Lindemann was negligent in his care and treatment of Marlene and Adam under both the standard of care applicable to a first-year resident and the standard of care of a practicing physician. Specifically, as a first-year resident, the trial court found that his actions fell below the standard of care of a first-year resident because he failed to contact an upper-level senior resident or the attending physician concerning Marlene's and Adam's care.4 The trial court also found that St. Joseph's was negligent in its implementation of the residency program. The trial court divided the negligence and assessed Dr. Lindemann 80% negligent and St. Joseph's 20% negligent

¶ 15 As a result of the trial court's findings, the court awarded Gregory and Marlene $500,000 for the wrongful death of Adam. It awarded the surviving children, Caroline and Kyle, $45,000 each for their loss of society and companionship of their mother until age eighteen. As relevant to this appeal, the trial court awarded $200,000 each to Gregory and Marlene for their emotional distress and permanent injuries.5

¶ 16 Following the trial, PIC appealed and this court reversed the trial court's decision to refuse to permit the late payment of the jury fee and remanded the matter to the trial court for a new trial. Phelps I, 273 Wis.2d 667, ¶ 2, 681 N.W.2d 571. Following this court's decision, the supreme court granted both the Phelpses' and PIC's petitions for review. Eventually the supreme court reversed this court, reinstating the trial court's decision. Phelps II, 282 Wis.2d 69, ¶ 4, 698 N.W.2d 643. However, the supreme court remanded the matter to the trial court to determine whether Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital. Id. The supreme court observed that, "[i]n doing so, we are mindful that this may ultimately be dispositive of our discussion of the cap on noneconomic damages." Id., ¶ 4 n. 4. If Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital, he would then fall within the statutory protection of WIS. STAT. ch. 655, which provides a compensation fund for victims of medical malpractice and caps the recoverable amount of damages that can be awarded to victims of medical malpractice.

¶ 17 After the matter was remanded to the trial court, the parties stipulated that the trial court could make its determination as to whether Dr. Lindemann was a "borrowed employee" on the basis of the existing record and no additional testimony was taken. The issue was extensively briefed. Ultimately, the trial court (a different judge than the one who heard the trial) determined that Dr. Lindemann was a "borrowed employee" of St. Joseph's...

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1 cases
  • Phelps v. Physicians Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • July 10, 2009
    ...I); Phelps v. Physicians Ins. Co. of Wis., Inc., 2005 WI 85, ¶¶ 5-13, 282 Wis.2d 69, 698 N.W.2d 643 (Phelps II); Phelps v. Physicians Ins. Co. of Wis., Inc., 2008 WI App 6, ¶¶ 2-11, 307 Wis.2d 184, 744 N.W.2d 880 (Phelps III). Our summary of the relevant facts here largely restates the fact......
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