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Kaul v. St. Mary's Hospital - Ozaukee8/31/2005
Before Anderson, P.J., Nettesheim and Snyder, JJ.
St. Mary's Hospital-Ozaukee, d/b/a Cedar Mills Medical Group, appeals from a medical malpractice judgment in favor of Timothy and Susan Kaul, and their son, Sean Kaul. The first jury trial resulted in a no causation verdict. Cedar Mills claims that the circuit court erred in granting the Kauls a new trial on the issue of causation because of confusion caused by the jury instructions and verdict direction. Cedar Mills also contends that the amount of past medical expenses paid by a collateral source should not be included in the judgment. The Kauls cross-appeal and challenge the amount of post-verdict interest, the constitutionality of the cap on non-economic damages under WIS. STAT.§§ 655.017 and 893.55(4) (2003-04), and the constitutionality of the requirement in WIS. STAT. § 655.015 that future medical expense damages in excess of $100,000 be paid to the Wisconsin Patients Compensation Fund and paid out in periodic payments. We affirm the circuit court's ruling that a new trial was warranted and conclude that the new trial on causation did not violate the five-sixths verdict rule. In accordance with Lagerstrom v. Myrtle Werth Hospital-Mayo Health System, 2005 WI 124, ___ Wis. 2d ___, 700 N.W.2d 201, we uphold the inclusion of the subrogated past medical expenses in the judgment. We also conclude that post-verdict interest runs from the first jury verdict and reverse that portion of the judgment. We also reverse that portion of the judgment reducing non-economic damages by the statutory cap in § 655.017 because the cap was held unconstitutional in Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, , ___ Wis. 2d ___, 701 N.W.2d 440. No relief is afforded on the other issue raised in the cross-appeal.
Sean was born on January 3, 1997, at St. Mary's Hospital-Ozaukee. On the morning of January 6, 1997, the Kauls contacted the Cedar Mills clinic to report concerns they had about a change in Sean's feeding. At 12:30 p.m. that same day, the Kauls again contacted the clinic about Sean's condition. The clinic's triage nurse made an appointment for Sean to be seen later that afternoon. When Sean was examined later that day he was lethargic and hypoglycemic (abnormally low blood glucose). He was immediately transported to the Children's Hospital of Wisconsin in Milwaukee. It was determined that Sean had suffered a brain hemorrhage. Sean was rendered profoundly mentally and physically disabled as a result of the brain injury.
The Kauls commenced this action against Cedar Mills alleging that the clinic's nursing staff was negligent in not arranging for Sean to be seen immediately for examination in response to the Kauls' phone calls on January 6, 1997. At trial, the Kauls' experts testified that Sean developed hypoglycemia and hypovolemia (decreased volume of circulating blood) during the morning of January 6 and that had Sean been evaluated for treatment earlier in the day, he would not have suffered devastating brain damage. The defense experts opined that Sean's brain injury occurred prior to January 6, possibly in utero.
The special verdict asked the jury to determine if Cedar Mills was negligent and, if so, whether such negligence was a substantial factor in causing Sean's injuries. The verdict directed the jury to answer the damage questions regardless of how the negligence and causation questions were answered. During deliberations the jury asked the circuit court whether the answers to the damage questions should reflect the percentage of liability for which Cedar Mills is responsible or the total amount of damages sustained by the Kauls. The jury wrote that "confusion stems from contradictory interpreta
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