Pierce v. Physicians Ins. Co. of Wisconsin, Inc.

• Decision Date: 17 February 2005
• Docket Number: No. 01-2710.,01-2710.
• Citation: 692 N.W.2d 558,278 Wis.2d 82,2005 WI 14
• Parties: Bonnie PIERCE, Plaintiff-Appellant-Petitioner, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., Frederick J. Bartizal, Jr., M.D., OHIC Insurance Company, and Theda Clark Regional Medical Center, Wisconsin Patients Compensation Fund, Defendants-Respondents.
• Court: Wisconsin Supreme Court

278 Wis.2d 82

2005 WI 14

692 N.W.2d 558

Bonnie PIERCE, Plaintiff-Appellant-Petitioner, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., Frederick J. Bartizal, Jr., M.D., OHIC Insurance Company, and Theda Clark Regional Medical Center, Wisconsin Patients Compensation Fund, Defendants-Respondents.

No. 01-2710.

Supreme Court of Wisconsin.

Oral argument April 28, , 2004.

Decided February 17, 2005.

For the plaintiff-appellant-petitioner there were briefs by Jolene D. Schneider and Peterson, Berk & Cross, S.C., Appleton, and oral argument by Jolene D. Schneider and Avram D. Berk.

For the defendants-respondents Physicians Insurance Company of Wisconsin, Inc. and Frederick J. Bartizal, M.D., there were briefs by Michael B. VanSicklen, John C. Schaak, Naikang Tsao and Foley & Lardner LLP, Madison, and oral argument by Michael B. VanSicklen. For the defendants-respondents Theda Clark Regional Medical Center and OHIC Insurance Company there were briefs by Todd M. Weir, Milwaukee, Patricia Sommer, Madison, and Otjen, Van Ert, Lieb & Weir, S.C., and oral argument by Patricia Sommer.

For the defendant-respondent Wisconsin Patients Compensation Fund there were briefs by R. George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, and oral argument by R. George Burnett.

Amicus curiae briefs were filed by Charles J. Crueger, Julie M. Rusczek and Michael Best & Friedrich LLP, Milwaukee, on behalf of Wisconsin Medical Society and Wisconsin Hospital Association, Inc.

Amicus curiae briefs were filed by Martha H. Heidt and Doar, Drill & Skow, S.C., Baldwin, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. N. PATRICK CROOKS, J

Petitioner Bonnie Pierce (Pierce) seeks review of an unpublished per curiam decision of the court of appeals, which affirmed the circuit court's grant of summary judgment. This case presents the narrow issue of whether a mother who suffers the stillbirth of her infant as a result of medical malpractice has a personal injury claim involving negligent infliction of emotional distress, which includes the distress arising from the injuries and stillbirth of her daughter, in addition to her derivative claim for wrongful death of the infant. In these unusual circumstances, we conclude that the mother may recover as a parent, for the wrongful death of the stillborn infant; and as a patient, for her personal injuries including the negligent infliction of emotional distress. We also conclude the stipulation of the parties did not waive this claim. Accordingly, we reverse the decision of the court of appeals that affirmed the circuit court's order, which dismissed that portion of the mother's personal injury claim for negligent infliction of emotional distress arising from the injuries and stillbirth of her daughter.

I

¶ 2. The relevant facts of this case are undisputed. Bonnie Pierce was nearly 35 weeks pregnant when she arrived for an appointment with her obstetrician, Dr. Frederick Bartizal, Jr., (Bartizal) on November 18, 1996. Bartizal examined Pierce and determined that she was four centimeters dilated. She was subsequently admitted to Theda Clark Regional Medical Center (Theda Clark) for care.

¶ 3. Later that day, while at Theda Clark, Pierce noticed her fetal monitor flashing. A nurse explained to Pierce that her baby's heart rate was declining because the umbilical cord was wrapped around the baby's neck. The nurse repositioned Pierce, apparently believing that the problem would be solved. At 6:00 p.m., Bartizal visited Pierce to examine her and the fetal monitor readings. Bartizal examined Pierce for about 10 to 15 minutes and informed her that she was five centimeters dilated. He explained to her that if she did not go into labor that night, he would induce labor the next morning.

¶ 4. Pierce fell asleep at approximately 12:45 a.m. without going into labor. At 1:30 a.m., she awoke as a nurse searched for the baby's heartbeat. After the first nurse was unable to find a heartbeat, a second nurse attempted to do so. The second nurse was also unable to detect a fetal heartbeat. In Bartizal's absence, the nurses called on Dr. Darr, who examined Pierce and performed an ultrasound. Doctor Darr informed Pierce that he was not able to detect the baby's heartbeat or any fetal activity. Shortly thereafter, Bartizal returned to the hospital to inform Pierce that her baby would be stillborn. Pierce was treated with an epidural and IV fluids before her baby, named Brianna, was delivered vaginally by vacuum extraction. Pierce kept Brianna with her for approximately 10 hours while she and family members had photographs taken with Brianna.

¶ 5. On November 16, 1999, Pierce filed a claim in the Outagamie County Circuit Court alleging that Bartizal, Theda Clark, and their respective insurers were liable for wrongful death and the negligent infliction of emotional distress. On the wrongful death claim, the defendants stipulated to their causal negligence and settled the claim. The other claim, negligent infliction of emotional distress, alleged that the defendants negligently caused Brianna's death and stillbirth, and that experiencing the baby's stillbirth caused Pierce physical injury and severe emotional distress.

¶ 6. The defendants filed a motion for summary judgment on Pierce's claim for negligent infliction of emotional distress. The circuit court, Judge James T. Bayorgeon presiding, granted the motion in part. Judge Bayorgeon relied on both Wis. Stat. ch. 655 and Wis. Stat. § 893.55,¹ as well as Kwaterski v. State Farm Mutual Automobile Insurance Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967), to dismiss that portion of Pierce's claim for the negligent infliction of emotional distress arising from the injuries and stillbirth of her daughter. The court held that the plaintiff could only recover for the emotional pain and suffering damages that resulted from her own injuries. Subsequently, the parties agreed to a stipulation that Bartizal and Theda Clark were negligent in the management of labor, and that such negligence caused the death of Brianna. The stipulation provided that the defendants would pay damages for loss of society and companionship and for funeral expenses. Based on a second stipulation, the other claims were dismissed, with the exception of the claims that were dismissed by the court pursuant to the court's order of August 20, 2001, which claims were before the court on the motion for partial summary judgment.

¶ 7. On October 11, 2003, the court of appeals affirmed the circuit court's grant of summary judgment. The court of appeals relied on Finnegan v. Patients Compensation Fund, 2003 WI 98, 263 Wis. 2d 574, 666 N.W.2d 797, and Bowen v. Lumbermens Mutual Casualty Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), to determine that Pierce did not satisfy the legal standard for recovery of emotional damages related to Brianna's stillbirth. The court of appeals concluded that Pierce did not satisfy the three-prong test of Bowen, which had recently been applied to plaintiffs' claim in Finnegan.² Specifically, the court held that while Pierce observed her daughter suffering, she did not witness the extraordinary event that caused her daughter's suffering—the umbilical cord wrapped around Brianna's neck. Additionally, the court noted that while Pierce's physician may have been negligent in waiting to induce labor, he did not cause the umbilical cord to wrap around the baby's neck. In response, Pierce filed a motion for reconsideration that the court denied on December 4, 2003.

¶ 8. This court granted Pierce's petition for review. Oral arguments were held on April 28, 2004. On June 16, 2004, we ordered the parties to file supplemental briefs addressing the following issues:

1. Was the Circuit Court mistaken in its reliance on the case of Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967) for its conclusion that: "A mother's injuries do not include the injury to or death of a child as part of her own injuries?"

2. Is it appropriate, under relevant case law, to separate or compartmentalize Bonnie Pierce's claimed emotional injury into what is related to her own pain and suffering (including emotional distress) resulting directly from the physical discomfort of child birth, as against her pain and suffering (including emotional distress) resulting from the medical malpractice that caused the death and stillbirth of her child, Briana Lynn Marcks?

3. Did the Stipulation which resulted in the Circuit Court's Order of October 3, 2001, in effect waive either claim referenced in question number 2 that Bonnie Pierce had for her own pain and suffering, including her own claimed emotional injury?

¶ 9. Additional oral arguments were heard on November 3, 2004.

II

[1]

¶ 10. The focus of this case is on whether Pierce may bring a claim which includes the negligent infliction of emotional distress arising from the injuries and stillbirth of her daughter, under the undisputed factual circumstances. This is a question of law that we review de novo, independently of the reasoning of the circuit court and the court of appeals, but benefiting from their analyses. See, e.g., Beloit Liquidating Trust v. Grade, 2004 WI 39, ¶ 17, 270 Wis. 2d 356, 677 N.W.2d 298

(question of law whether complaint states a claim); see also State v. Lombard, 2004 WI 95, ¶ 17, 273 Wis. 2d 538, 684 N.W.2d 103 (statutory interpretation is a question of law, subject to de novo appellate review).

¶ 11. Wisconsin Stat. ch. 655 governs claims in the event of medical malpractice. According to Wis. Stat. § 655.007, "any patient or . . . any . . . parent . . . of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter." Wisconsin Stat. § 655.017³ limits the noneconomic damages recoverable to those individuals listed in Wis. Stat. § 893.55(4). Section 893.55(4)(a) caps noneconomic damages, defined in part as "pain and suffering; . ....