Professional Liability Committee Report: Bowen Claims Limited in Medical Malpractice Actions

WDC Journal Edition: Spring 2004
By: Mark E. Larson - Gutglass, Erickson, Bonville, Seibel & Falkner, S.C.

In an unusually structured decision, the Wisconsin Supreme Court in Finnegan v. Wisconsin Patients Compensation Fund, 2003 WI 98, 263 Wis.2d 574, 666 N.W.2d 797, held that a Bowen “bystander” claim could not be maintained in a medical malpractice claim based on misdiagnosis. The case involved a claim for the negligent infliction of emotional distress by the parents of a child who died from a bacterial infection which was not timely diagnosed despite a laboratory report of a positive blood culture being communicated to an on-call physician for the child’s pediatrician. ¶¶8-9. The mother had accompanied the child to all relevant medical visits, essentially fulfilling the Bowen requirements of being a close family member witnessing the events causing death or coming upon the aftermath soon afterward. ¶8-10. A majority of the supreme court held that a bystander claim based on the failure to diagnosis/misdiagnosis fails to satisfy the Bowen requirements and is therefore barred. ¶14.

The decision is comprised of four separate opinions of different combinations of justices. The first part of the decision was written by Justice Sykes and joined by Justices Wilcox and Prosser, and held that bystanders’ claims are simply not permitted under Wis. Stat. C. 655, but this was not the majority opinion. Chief Justice Abrahamson, writing separately concurred in the result but believed that bystander claims are not categorically barred under C. 655. CJ Abrahamson concurred in the result because she believes a claim based upon misdiagnosis fails to meet the Bowen requirement that the plaintiff have observed an extraordinary event causing death or severe injury or coming upon the scene shortly afterward. ¶ 55.

In her opinion, she stated, “[I]n the present case, as in many cases, the failure to make the proper medical diagnosis is not an event that itself is perceived by a family member. To extend Bowen to an injury caused by an improper diagnosis when the plaintiff observes the suffering of the victim and not the event that causes that suffering conflicts with the historical foundations for negligent infliction of emotional distress and would be a significant broadening of the Bowen rule.” (Emphasis added). Id. She therefore voted that the parents could not pursue their emotional distress claim. ¶56. Justices Sykes, Wilcox, Prosser and Bradley joined in that portion of her opinion, forming a clear majority.

Justices Bablitch and Crooks dissented from this majority view, believing that the claim fulfilled the requirements of Bowen and that such claims are permissible under C. 655.

The Finnegans’ counsel, Tim Aiken, reported at a recent seminar that the majority of the supreme court was very concerned about the application of Bowen in obstetrical cases. Based on CJ Abrahamson’s opinion in Finnegan and Attorney Aiken’s comments about oral argument, it would appear that a bystander claim would require an affirmative negligent act that could be appreciated at the time by a parent, spouse or other appropriate family member that results in death or severe injury.

Update on Maurin. In follow up to the Maurin appeal discussed in the Fall 2003 edition of the Wisconsin Civil Trial Journal, the court of appeals on October 28, 2003 certified to the supreme court the questions of whether the wrongful death caps under Wis. Stat. s. 895.04(4) are constitutional, and if so, are plaintiffs in medical malpractice cases entitled to “stacking” the wrongful death cap and the non-economic damage cap under Wis. Stat. s. 893.55(4)(d)?

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Mark E. Larson is a shareholder in the insurance defense firm of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C. He is currently chairperson of the CTCW Professional Liability Committee. He has practiced primarily in the area of insurance defense since graduating in 1986 from Marquette Law School, with a focus on defending health care providers and other providers of professional services.