Recent Medical Malpractice Appellate Decisions

WDC Journal Edition: Fall 2003
By: Mark E. Larson

Hofflander: JCAHO materials protected - No Safe Place claim for Mental Health Patient - Patient may be held to subjective standard for contributory negligence

On July 1, 2003, the Wisconsin Supreme Court issued a decision in Hofflander v. St. Catherine’s Hospital, 2003 WI 77, ___ Wis. 2d ___, ___ N.W.2d ___, which affirmed in part and reversed in part a published Court of Appeals decision at 2001 WI App 204, 247 Wis. 2d 636, 635 N.W.2d 13. The case involved an involuntarily committed mental health patient who removed an air conditioning unit and attempted to escape from the third floor of the hospital but fell and suffered significant injuries.

In its decision, the Supreme Court held that if the patient establishes that the hospital a special relationship as discussed in Jankee v. Clark County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297, that her elopement attempt was forseeable and there was evidence of the hospital failing to exercise their “heightened” duty of care, the plaintiff’s contributory negligence would be measured by a subjective rather than objective standard of self-care. If the plaintiff fails to establish all of these elements, her conduct will be judged by an objective “reasonable person” standard.
The Supreme Court also held that even though the air conditioner was loose, the plaintiff was barred from making a Safe Place claim because it was her conduct rather than the air conditioner that caused her injury. Although not dispositive of the issue, the Supreme Court had that the “traditional” analysis of determining whether a person is a trespasser applies even to an involuntarily committed patient to a locked psychiatric unit.
Finally, the issue that probably has the most wide application is the Supreme Court’s determination that materials generated by site surveys of the Joint Commission on Hospital Accreditation of Healthcare Organizations (JCAHO) are protected from discovery under Wis. Stat. s. 146.38. The Supreme Court held that permitting discovery of such materials would “subvert the central purpose” of the peer review statutes, i.e., to encourage hospitals to perform quality control reviews for purpose of prospectively improving services.

Schultz: There is no exception for medical malpractice cases from the Neiman decision that retroactively increased wrongful death limits are unconstitutional.

The Supreme Court in Schultz v. Natwick, 2002 WI 125, 257 Wis.2d 19, 653 N.W.2d 266, rejected an argument that medical malpractice cases were not subject to the Supreme Court’s decision in Neiman v. American Nat’l Property & Cas. Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160, that the retroactively increased wrongful death caps were unconstitutional. The Supreme Court also held that the Martin balancing test to determine whether retroactive legislation is constitutional is not to be applied on a case by case basis.

Maurin: Are wrongful death limits constitutional? Can the wrongful death and non-economic caps be stacked?

This case has been pending before the Court of Appeals since January, 2003 but was stayed pending resolution of several issues by the Supreme Court and Court of Appeals in cases already pending, e.g., Neiman v. American Nat’l Property & Cas. Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160, Guzman v. St. Francis Hospital, Inc., 2001 WI App. 21, 240 Wis. 2d 559, 623 N.W.2d 776 and Schultz v. Natwick, 2002 WI 125, 257 Wis. 2d 19, 653 N.W.2d 266. Still at issue is whether wrongful death are themselves constitutional. Arising out of a tragic factual scenario in which a 5 year old girl died as result of undiagnosed diabetes, Judge Waddick ruled in motions after verdict that Wisconsin’s long-standing wrongful death statutes (Wis. Stat. ss. 895.03 and 895.04), are unconstitutional. The basis for his ruling was a Massachusetts decision cited by plaintiffs’ counsel, Gaudette v. Webb, 284 N.E.2d 222 (Mass. 1972), which held that a wrongful death claim did, in fact, exist at common law and is therefore not a statutorily created right, contrary to 200 plus years of American Jurisprudence. Id. at 229. Judge Waddick concluded that any statutory limit violated the plaintiffs’ constitutional rights and therefore was invalid.

Not argued before the trial court because Judge Waddick’s ruling rendered the issue moot, the defense has asked the Court of Appeals to resolve the issue of whether the non-economic damage cap under Wis. Stat. s. 893.55(4)(d) can be stacked on top of the wrongful death cap under s. 895.04(4), and incorporated by Wis. Stat. s. 893.55(4)(f).

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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, residential facilities, educational institutions and other providers of professional services.