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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
cap on non-economic damages would appear to render it superfluous. Moreover, how would courts apply Wis. Stat. § 893.55(4)(b), which references the Fund's payment limit, and Wis. Stat. § 893.55(4)(e) and (5), which expressly reference damages awarded "under ch. 655"? These cannot be applied to a non-chapter 655 case or non-chapter 655 health care provider. As a result, these provisions become conflicting and meaningless as applied to non-chapter 655 health care providers.
PIC's construction of "health care provider" in Wis. Stat. § 893.55 would also lead to absurd results. See Strenke v. Hogner, 2005 WI 25, , __ Wis. 2d __, 694 N.W.2d 296 ("Laws must be interpreted, considering the legal and practical consequences, to avoid unreasonable and absurd results."). The history behind the creation of Wis. Stat. ch. 655 in 1975 and the non-economic damage cap in Wis. Stat. §§ 655.017 and 893.55(4) in 1985 was in response to a perceived medical malpractice liability insurance crisis. Yet, PIC would have us give any entity that professionally provides health care services (e.g., optometrists, chiropractors, dentists, etc.) the benefit of limited liability as well as Fund coverage, despite the fact that these entities do not pay into the Fund. This we decline to do. Such an expansion is best left to the legislature.
In the end, we view the provisions in Wis. Stat. § 893.55 regulating the award of non-economic damages and Wis. Stat. ch. 655 as inextricably intertwined. Recognizing this interplay, the court of appeals observed: " he legislature has unambiguously declared that the cap on non-economic damages in WIS. STAT. § 893.55(4)(b) applies only to those who are health-care providers under WIS. STAT. ch. 655, and to 'employees of health care providers' as the phrase is further limited by § 893.55(4)(b)." Phelps, 273 Wis. 2d 667, . We agree with this conclusion. Thus, because Dr. Lindemann was not a "health care provider" as the term is defined by Wis. Stat. ch. 655, we determine that the cap on non-economic damages imposed by Wis. Stat. § 893.55(4)(b) does not apply.
VII.
In sum, we conclude that (1) the cross-petitioners waived their right to a jury trial by not timely paying the jury fee, and the circuit court properly denied their motion to extend time for paying the fee; (2) Dr. Lindemann should be held to the standard of care applicable to an unlicensed first-year resident; (3) the health care services review privilege found in Wis. Stat. § 146.38 does not apply to this case; and (4) the cap on non-economic damages imposed by Wis. Stat. § 893.55(4)(b) does not apply to Dr. Lindemann under the facts presented. However, we remand the matter to the circuit court for a determination of whether Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital and therefore entitled to the cap protection as an "employee" of a health care provider under Wis. Stat. § 893.55(4)(b). Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings.
By the Court.--The decision of the court of appeals is reversed and the cause is remanded to the circuit court.
JON P. WILCOX, J. did not participate.
DAVID T. PROSSER, J. (concurring in part, dissenting in part). Practically speaking, medical residents "provide health care." Yet the majority concludes that medical residents are not "health care providers" by applying a strict interpretation of the definitions in Wis. Stat. ch. 655 to the term "health care provider" in Wis. Stat. § 893.55(4)(b).
However "anomalous" this determination might be, it would be tolerable if the majority simultaneously recognized that the legi
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