 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
mount or the limit under s. 895.04(4).
(5) Every award of damages under ch. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of injury to the date of award and for the period after the date of award, without regard to the limit under sub. (4) (d) . . .
(Emphasis added.)
As noted above, the subdivision at issue is Wis. Stat. § 893.55(4)(b). Within that subdivision, the parties dispute the meaning of the term "health care provider." The term "health care provider" is used elsewhere in Wis. Stat. § 893.55, in subsections (1) and (2). Typically, a term used in multiple subsections within a statute is given the same meaning. General Castings Corp. v. Winstead, 156 Wis. 2d 752, 759, 457 N.W.2d 557 (Ct. App. 1990). However, as the court of appeals recognized, " his is one of those rare instances where it does not." Phelps, 273 Wis. 2d 667, .
In Clark v. Erdmann, 161 Wis. 2d 428, 468 N.W.2d 18 (1991), this court considered whether the medical malpractice statute of limitations found in Wis. Stat. § 893.55(1) applied to podiatrists. It concluded that it did, reasoning that the term "plainly applies to anyone who professionally provides health care to others. Podiatrists do exactly that: they provide health care to others; and, like other professional health care providers, they are licensed to practice by the state medical examining board pursuant to ch. 448, Stats." Id. at 438-39. The Clark decision is distinguishable from the present case, however, as it addressed Wis. Stat. § 893.55(1) dealing with the statute of limitations. There was no issue before it regarding Wis. Stat. ch. 655 or the non-economic damage cap in Wis. Stat. § 893.55(4).
Since Clark, the court of appeals has extended this broad reading of "health care provider" to other health professions. See, e.g., Webb v. Ocularra Holding, Inc., 2000 WI App 25, -15, 232 Wis. 2d 495, 501-09, 606 N.W.2d 552 (optometrists), overruled on other grounds, Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860; Arenz v. Bronston, 224 Wis. 2d 507, 512-15, 592 N.W.2d 295 (Ct. App. 1999) (chiropractors); and Ritt v. Dental Care Associates, 199 Wis. 2d 48, 60-64, 543 N.W.2d 852, (Ct. App. 1995) (dentists). Again though, these cases considered only the applicability of Wis. Stat. § 895.55's statutes of limitation. None of them held that the medical malpractice non-economic damage cap in Wis. Stat. § 893.55(4) applied to health care providers who are not subject to Wis. Stat. ch. 655.
Relying on the above cases, PIC maintains that Dr. Lindemann should also be considered a "health care provider" under Wis. Stat. § 893.55, as he professionally provided health care to Marlene as an unlicensed first-year resident. The problem with this argument, of course, is that it ignores the context in which the term "health care provider" is used. This case does not involve subsections (1)-(3) and the applicable statutes of limitations. Rather, it involves subsections (4)-(5) and the cap on non-economic damages. This is significant, for subsections (4)-(5) specifically reference Wis. Stat. ch. 655 and/or the patients compensation fund. Likewise, Wis. Stat. § 655.017, which sets forth the cap on non-economic damages in medical malpractice actions, specifically references Wis. Stat. § 893.55(4).
If we were to accept PIC's argument and hold the cap in Wis. Stat. § 893.55(4) applicable to all health care providers, regardless of whether they fell outside Wis. Stat. ch. 655, troubling questions emerge. For example, what would the purpose of Wis. Stat. § 655.017 be? PIC's reading of Wis. Stat. § 893.55(4) as an independent
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|