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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
cussion, among physicians knowledgeable in an area, of the quality of treatment rendered by other physicians.'" Braverman v. Columbia Hospital, Inc., 2001 WI App 106, , 244 Wis. 2d 98, 629 N.W.2d 66 (quoting State ex rel. Good Samaritan v. Moroney, 123 Wis. 2d 89, 98, 365 N.W.2d 887 (Ct. App. 1985)). The peer review contemplated by the statute is designed to aid physicians on the hospital staff in maintaining and improving the quality of their work. Id. (citing Moroney, 123 Wis. 2d at 98).
In analyzing this issue, the first question posed is whether Dr. Lindemann is a "health care provider," so that Dr. Worthington's letter might qualify as a "review or evaluation" of Dr. Lindemann's "services" in connection with treatment of Marlene. The term "health care provider" is not defined in the statute for the health care services review privilege. However, by virtue of § 146.38(1)(b), it "includes an ambulance service provider, as defined in s. 146.50(1)(c), an emergency medical technician, as defined in s. 146.50(1)(e), and a first responder, as defined in s. 146.50(1)(hm)." Significantly, none of these three categories would qualify as "health care providers" under the more limited definition found in Wis. Stat. ch. 655, which governs medical malpractice claims against health care providers.
Although it appears that the definition of "health care provider" under Wis. Stat. § 146.38(1m) is more expansive than the definition of "health care provider" under Wis. Stat. ch. 655, we need not definitely resolve the question. Instead, we determine that even if Dr. Lindemann is a "health care provider" under Wis. Stat. § 146.38(1m), the peer review privilege here does not apply because the letter was not part of the peer review evaluation process.
The parties dispute whether the information in Dr. Worthington's letter was "acquired in connection with such review or evaluation." In addressing this matter, we note that the party asserting the health care services review privilege bears the burden of establishing two conditions. First, the investigation must be part of a program organized and operated to improve the quality of health care at the hospital. Mallon v. Campbell, 178 Wis. 2d 278, 287, 504 N.W.2d 357 (Ct. App. 1993). Second, the person conducting the investigation must be acting on behalf of, or as part of a group with relatively constant membership, officers, a purpose and a set of regulations. Id.
We conclude that PIC cannot meet its burden. Here, the testimony of Patricia Kaldor, the vice-president in charge of patient services at St. Joseph's Hospital, established that any investigation conducted of Dr. Lindemann was initiated by the hospital. Moreover, Dr. Worthington confirmed that the hospital's peer review committee was not convened to review Dr. Lindemann's case. Thus, we are satisfied that the investigation of Dr. Lindemann was initiated to report a problem to Dr. Cruikshank, the supervisor of the residency program in which Dr. Lindemann was enrolled, and not to improve the quality of health care at the hospital. Accordingly, we determine that Wis. Stat. § 146.38 does not apply to this case.
VI.
Finally, we consider the applicability of the cap on non-economic damages imposed by Wis. Stat. § 893.55(4)(b). PIC argues that the damage limitations provided in Wis. Stat. § 893.55(4) apply to unlicensed first-year medical residents. Meanwhile, the Phelpses contend that the damage limitations do not apply to unlicensed first-year residents who are not covered by Wis. Stat. ch. 655.
Wisconsin Stat. § 893.55 has two parts. Subsections (1)-(3) set forth the statutes of limitations for actions to recover damages for inju
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