Schuster v. Altenberg

Decision Date01 June 1988
Docket NumberNo. 87-0115,87-0115
Citation424 N.W.2d 159,144 Wis.2d 223
PartiesGwendolyn SCHUSTER and Robert Schuster, Plaintiffs-Appellants, v. Barry M. ALTENBERG, M.D., Chubb Insurance Group and Wisconsin Patient Compensation Fund, Defendants-Respondents.
CourtWisconsin Supreme Court

John Albert, Racine, argued, for plaintiffs-appellants; Gregory Van Remmen and Albert, Jude & Van Remmen, S.C., Racine, on brief.

James T. Murray, Jr., Milwaukee, argued, for defendants-respondents; Donald R. Peterson, Janet E. Kolar and Peterson, Johnson & Murray, S.C., Milwaukee, on brief.

CECI, Justice.

This case is before the court on certification from the court of appeals, pursuant to Section (Rule) 809.61, Stats. The appellants, Gwendolyn and Robert Schuster, appeal from a judgment of the trial court granting the motion of respondents, Barry M. Altenberg, M.D., Chubb Insurance Group, and the Wisconsin Patient Compensation Fund, for judgment on the pleadings.

Due to the fact that judgment on the pleadings was granted, the facts presented are sparse. Edith Schuster, the mother of Gwendolyn Schuster and the wife of Robert Schuster, was a patient of Dr. Altenberg, a psychiatrist. In the complaint, it was alleged:

"Dr. Altenberg was negligent in his management and care for Edith Schuster in failing to recognize or take appropriate actions in the face of her psychotic condition, including failing to seek her commitment, to modify her medication, to alert and warn the patient or her family of her condition or its dangerous implications.... 1" The appellants additionally asserted that Dr. Altenberg's negligence was a substantial contributing factor in causing an automobile accident that occurred on June 29, 1983, in which Gwendolyn Schuster was injured and Edith Schuster, who was driving, was fatally injured. Gwendolyn Schuster was paralyzed as a result of the accident and claimed damages associated with her paraplegia in the form of pain, suffering, disability, medical expense, and loss or impairment of earning capacity. Robert Schuster claimed damages resulting from his obligation to pay significant medical expenses of his daughter while she was a minor.

The negligence claim originated as a submission of controversy filed with the patients compensation panel. Subsequently, the patients compensation panel was abolished by 1985 Wisconsin act 340. On June 27, 1986, this action was commenced in the circuit court for Racine county, in accordance with the provisions of 1985 Wisconsin act 340, providing for the transfer of pending controversies. An amended complaint was filed on September 17, 1986. The respondents filed a motion for judgment on the pleadings on September 22, 1986, pursuant to Section 802.06(3), Stats. Toward the end of oral argument on the motion for judgment on the pleadings, the appellants requested the opportunity to replead. The trial court refused permission to replead and, on December 19, 1986, entered judgment granting the motion for judgment on the pleadings and dismissing the amended complaint.

Gwendolyn and Robert Schuster appealed from the judgment of dismissal. The court of appeals certified this case, and, on September 22, 1987, the certification of the appeal was accepted.

Motions made pursuant to section 802.06(3), Stats., for judgment on the pleadings are related to motions for summary judgment under section 802.08(2). Specifically, a motion for judgment on the pleadings will be converted to a motion for summary judgment if matters outside the pleadings are presented to the court. Section 802.06(3). Consequently, it has been observed that "a judgment on the pleadings is, in reality, a summary judgment minus affidavits and other supporting documents." Clausen & Lowe, The New Wisconsin Rules of Civil Procedure Chapters 801-803, 59 Marq.L.Rev. 1, 55-56 (1976). For this reason, in reviewing an order granting judgment on the pleadings, we follow the methodology for reviewing summary judgments set forth in Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). First, we examine the complaint to determine whether a claim for relief has been stated. In determining the legal sufficiency of the complaint, "the facts pleaded by the plaintiff, and all reasonable inferences therefrom, are accepted as true." Prah v. Maretti, 108 Wis.2d 223, 229, 321 N.W.2d 182 (1982). The complaint should be found legally insufficient only if " 'it is quite clear that under no circumstances can the plaintiff recover.' " Id. (quoting Clausen & Lowe, supra at 54). If a claim for relief has been stated, we then turn to the responsive pleadings to determine whether a material factual issue exists. Finally, if no genuine issue of material fact exists, the court may determine that the moving party is entitled to a judgment as a matter of law.

For the purposes of addressing the legal sufficiency of the complaint, we have categorized the allegations as follows:

(1) Negligent diagnosis and treatment;

(2) Failure to warn the patient's family of her condition and its dangerous implications; and

(3) Failure to seek the commitment of the patient.


It is well established in Wisconsin that a medical practitioner, "be he a general practitioner or a specialist, should be subject to liability in an action for negligence if he fails to exercise that degree of care and skill which is exercised by the average practitioner in the class to which he belongs, acting in the same or similar circumstances." Shier v. Freedman, 58 Wis.2d 269, 283-84, 60 Wis.2d 152, 206 N.W.2d 166, 208 N.W.2d 328 (1973). Liability will not be imposed under this negligence standard for mere errors in judgment:

"The law governing this case is well settled. A doctor is not an insurer or guarantor of the correctness of his diagnosis; the requirement is that he use proper care and skill. Knief v. Sargent, 40 Wis.2d 4, 8, 161 N.W.2d 232 (1968). The question is not whether the physician made a mistake in diagnosis, but rather whether he failed to conform to the accepted standard of care. Francois v. Mokrohisky, 67 Wis.2d 196, 201, 226 N.W.2d 470 (1975)." Christianson v. Downs, 90 Wis.2d 332, 338, 279 N.W.2d 918 (1979).

We can conceive of no reason why a psychiatrist, as a specialist in the practice of medicine, should not be compelled, as are all other practitioners, to meet the accepted standard of care established by other practitioners in the same class. See Gordon v. Milwaukee County, 125 Wis.2d 62, 370 N.W.2d 803 (Ct.App.1985). Accordingly, liberally construed, the complaint at the very least asserts a claim for negligent treatment and diagnosis.

The only distinction between the allegations of negligent treatment and diagnosis in the present case and those which constitute most malpractice claims is the type of harm which resulted. However, a negligent failure to diagnose or properly treat a psychiatric condition may constitute the cause-in-fact of harm to the patient and third parties if it can be established that with proper diagnosis and treatment the patient's condition and behavior could have been corrected or controlled. In a related matter, the court in Stokes v. Leung, 651 S.W.2d 704 (Tenn.Ct.App.1982), recognized a claim asserting that failure to prescribe proper medication was a factor causal in a patient's act of committing suicide. Moreover, under the allegation that Dr. Altenberg failed to warn Edith Schuster of the dangerous implications of her disease, it might be established that with proper diagnosis, the patient would have been warned not to drive until her condition was corrected. Warning a patient of risks associated with a condition and advising the patient as to appropriate conduct constitutes treatment as to which the physician must exercise ordinary care. See generally Annotation, Liability of Physician, for Injury to or Death of Third Party, Due to Failure to Disclose Driving-Related Impediment, 43 A.L.R.4th 153, section 4(b) (1986). For example, in Duvall v. Goldin, 139 Mich.App. 342, 352, 362 N.W.2d 275, 279 (Ct.App.1984), the court found that it was "foreseeable that a doctor's failure to diagnose or properly treat an epileptic condition may create a risk of harm to a third party." More specifically, the court noted that it was foreseeable that such failure to diagnose and treat, including the failure to warn a patient not to operate a motor vehicle, could result in an automobile accident. Id. See also Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973). Finally, expert testimony might explain that the only proper course of treatment for Edith Schuster was confinement, which, if accomplished, would have prevented her from driving and, consequently, would have avoided the accident. Whether Dr. Altenberg was in fact negligent in diagnosing and treating Edith Schuster and whether such misdiagnosis and improper treatment was a substantial factor in causing the accident and consequential injuries are issues for the jury to resolve.

Directly related to the issue of improper diagnosis and treatment is the issue of the alleged failure to warn the patient of the side effects or risks associated with the medication prescribed. This allegation, specifically argued on appeal, is not immediately apparent from the allegations in the complaint. However, liberally construed, the complaint and the submission of controversy attached thereto support this allegation.

This court has not previously addressed precisely the issue of liability of a psychiatrist to third parties for failure to warn a patient of a medication's side effects. But see Trogun v. Fruchtman, 58 Wis.2d 569, 604, 207 N.W.2d 297 (1973) (recognizing cause of action in negligence for failure to inform patient of risk information in connection with contemplated treatment). However, other courts which have addressed the issue have found such a failure to warn to constitute a basis upon which a psychiatrist could be held liable to a third party....

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