Significant Recent Medical Malpractice Appellate Decisions

WDC Journal Edition: May 2002
By: Mark E. Larson - Gutglass, Erickson, Bonville, Seibel & Falkner, S.C.

Filing "too soon" Deprives Circuit Court of Subject Matter Jurisdiction (maybe)
In a decision that has exposed a number of plaintiffs' attorneys to potential legal malpractice claims, the Court of Appeals in Ocasio v. Froedtert, 2001 WI App 264, held the circuit court lacked subject matter jurisdiction to hear a medical malpractice action because the plaintiff failed to wait until the statutorily defined "mediation period" had expired before filing the circuit court action. Id. at ¶ 20. The plaintiff had requested mediation and then filed an otherwise proper circuit court action before the 93 day mediation period as defined by Wis. Stat. s. 655.465(7) had expired. Id. at ¶ 2-3. The decision added insult to injury to the plaintiff and her attorney by holding that the lack of subject matter jurisdiction made the circuit court action a "nullity" which could not be amended and, implicitly, did not toll the statute of limitations which had run after the circuit court action had been filed. Id. at ¶ 21, 24.

The court of appeals also rejected the plaintiff's argument that the jurisdictional defense had been waived by the defendants litigating the case six months before raising any objection. Id. at ¶ 25-28. Expressly stating that a lack of subject matter jurisdiction cannot be waived or consented to, unlike personal jurisdiction, and stated, "A court not only has the power to dismiss when it becomes aware of its lack of subject-matter jurisdiction but has the duty to sua sponte to do so." Id. at ¶ 28, quoting Achtor v. Pewaukee Lake Sanitary Dist., 88 Wis. 2d 658, 664, 277 N.W.2d 778 (1979).

In reaching its conclusions, the court of appeals distinguished the process under Wis. Stat. s. 655.44(5) of first making a request for mediation and then filing a circuit court action from the procedure set forth in Wis. Stat. s. 655.445(1) to permits the filing of a circuit court action before requesting mediation. Failure to follow the latter process, i.e., filing the court action but failing to request mediation within fifteen days, has been held not to deprive a circuit court of its competency to hear the matter. Eby v. Kozarek, 153 Wis. 2d 75, 81, 450 N.W.2d 249 (1990). Eby provided that the plaintiff be directed to request mediation and left open the imposition of other sanctions but held that dismissal would not be appropriate. Id. at ¶ 83. The court of appeals in Ocasio acknowledged Eby but found the language of s. 655.44(5) was "mandatory" rather than "directory" which the supreme court determined s. 655.445(1) to be. 2001 WI App at ¶ 19-20.

It should be noted that in a recent unpublished decision, the court of appeals has upheld dismissals of actions where the plaintiff refused to comply with s. 655.455(1). Mains v. St. Mary's Hosp. of Superior, Appeal No. 00-3160, Nov. 27, 2001. In that case the plaintiff timely filed a circuit court action but failed to request mediation as required by s. 655.445(1) despite being advised of the requirement. Id. at 2. At the motion to dismiss, the plaintiff requested that the parties submitted to mediation in lieu of dismissal. Id. at ¶ 9. Finding there was no "justifiable excuse" for the fail to request mediation, the court of appeals upheld the trial court's discretionary decision to dismiss the case rather than simply compelling the plaintiff to request mediation. Id. The court of appeals had interpreted Eby to permit dismissal as a sanction if the dilatory conduct of the plaintiff warranted it. Id. at ¶ 8.

It should be noted that the Wisconsin Supreme Court has accepted a petition to review Ocasio.

No Captain of the Ship Liability-Still True
As reported last year, the court of appeals held physicians are not vicariously liable for the negligence of nurses or other operating-room personnel not employed or selected by the physician. Lewis v. Seldera, 2000 WI App 95 5. The Wisconsin Supreme Court reviewed and affirmed that decision, expressly rejecting as outdated the concept that a physician is liable for the actions of others as "the captain of the ship." 2001 WI 60.

Statutes of Repose tolled by Request for Mediation
In Landis v. Physicians Ins. Co. of WI, Inc., 2001 WI 86, the supreme court held the filing of a request for mediation under s. 655.44(5) does toll the 5 year statute of repose set forth in Wis. Stat. s. 895.55(1)(b) as well as the statute of limitations found in the same statue, reversing the published court of appeals decision of Landis v. Physicians Ins. Co. of WI, Inc., 2000 WI App 164.

Attempt to Distinguish Neiman on the Retroactive Application of Wrongful Death Cap in Medical Malpractice Cases Rejected by Court of Appeals but Supreme Court to Review
In recently published decision, the court of appeals rejected arguments the wrongful death limits could constitutionally be retroactively increased in medical malpractice actions. Schultz v. Natwick, 2001 WI App 281. The plaintiffs, who had been personally instrumental in lobbying the Legislature to increase the limits, argued that the balancing test applied by the supreme court in Neiman v. American Nat'l. Prop. Cas. Co., 2000 WI 83, must be applied on a case by case basis. Schultz, 2001 WI App 281 at ¶ 17. This argument was rejected by the court of appeals and the appellate court further found that Neiman was controlling. 2001 WI App 281 at 19.

On February 19, 2002, the supreme court did accept a petition to review the court of appeals decision. Given the court of appeals essentially said the supreme court had already decided the issue, it will be very interesting to see why the supreme court accepted review and what their decision will be in light of their Neiman decision.