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Suchomel v. University of Wisconsin Hospital & Clinics10/20/2005
Before Dykman, Deininger and Higginbotham, JJ.
Dr. Daniel Resnick appeals a judgment entered following a jury verdict in favor of Karen Suchomel and Dennis Suchomel in their medical malpractice action against Resnick, Dr. John Sandin, University of Wisconsin Hospital and Clinics (UWHC), St. Paul Fire & Marine Insurance Company and the Wisconsin Patients Compensation Fund. Resnick argues the trial court erroneously exercised its discretion in giving a res ipsa loquitur jury instruction because the instrumentality causing Karen's injuries was not in Resnick's exclusive control. Resnick asserts three surgeons participated in the surgery, including Resnick, Sandin and Dr. Michael Schurr, a general surgeon. However, according to Resnick, Schurr's name was not included in the jury instruction, thus one of the two standards for giving the jury instruction was not met. Resnick further argues the trial court erroneously exercised its discretion by permitting the Suchomels to amend their pleadings to include a claim for Dennis's share of Karen's medical expenses and costs and by awarding those damages to him.
We conclude Resnick waived his objection to the res ipsa loquitur instruction by failing to raise it in a motion after verdict. We also conclude the trial court properly allowed the Suchomels to amend their pleadings and by awarding damages to Dennis. Accordingly, we affirm the judgment against Resnick.
The Suchomels cross-appeal, arguing the trial court erred by dismissing its claim that Resnick was an ostensible agent of UWHC based on its interpretation of WIS. STAT.§ 233.17(2)(b) (2003-04). We conclude, based on the plain and unambiguous language of § 233.17(2)(b), that Resnick was not an agent of UWHC, ostensible or otherwise. We therefore affirm the trial court's dismissal of this claim.
FACTS
Karen Suchomel underwent spine surgery to address intractable back pain and lumbar instability at the L4-L5 region of her spine. The operation performed is described as an anterior lumbar inner body fusion at L4-L5 with BAK instrumentation and autograft. During the surgery, a complication arose where Karen suffered vascular injuries to her vena cava and iliac veins. As a result, Karen has since required extensive medical treatment. In addition, Karen will require lifelong medical care and will likely require graft replacement and/or revision.
Resnick was the attending neurosurgeon responsible for the spine surgery and was assisted by his resident, Dr. John Sandin. Schurr performed the first portion of the surgery known as the approach (i.e. the opening of the abdomen). Schurr was assisted by his resident, Dr. Jon Gould.
The Suchomels sued Resnick, Sandin, Schurr and Gould for the injuries Karen sustained during her surgery on the theories of negligence, failure to obtain informed consent and res ipsa loquitur. All four defendants testified in deposition that nothing Schurr or Gould did would have caused this injury. Consequently, Schurr and Gould were dismissed from the action. The Suchomels further alleged UWHC was legally responsible for Resnick's negligence under the theory of ostensible agency.
Prior to trial, Resnick and Sandin moved in limine to preclude the Suchomels from advancing their claim related to ostensible agency. Based on its reading of WIS. STAT.§ 233.17(2)(b), the trial court granted this motion.
At trial, Resnick and Sandin argued Schurr was responsible for Karen's injury. During the jury instruction conference, Resnick argued Schurr should be included in the res ipsa loquitur instruction because the question remained over who had exclusive control over the instrume
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