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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
slature has for years extended the coverage of chapter 655 and Wis. Stat. § 893.55(4)(c) and (f) to an "employee of a health care provider," see Wis. Stat. §§ 655.005, 655.017, and 893.55(4)(b), and that Dr. Matthew Lindemann was indisputably an "employee" of some health care provider whose status would trigger his coverage under the relevant statute. Instead, the majority ducks the issue. The majority remands to the circuit court the question whether Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital, majority op., , ignoring the fact that the circuit court has implicitly made two previous findings that Dr. Lindemann was not such an employee. The majority's remand, without a word of criticism or guidance, is a tacit approval of those two findings, which means that the circuit court is likely to reinstate its two prior determinations.
The conclusion that a medical resident rendering medical care to a hospital's patients within the scope of the resident's duties is not an "employee" of the hospital or any other applicable "health care provider," and thus is not covered by chapter 655 or the Patients Compensation Fund, is more than "anomalous." It defies common sense.
Although I agree with some parts of the majority opinion----such as the applicable standard of care and the health care services review privilege----I write separately largely to discuss points of disagreement.
My concurrence/dissent is divided into three parts. In part I, I reluctantly join the majority's conclusion that the circuit court did not erroneously exercise its discretion in ruling that the defendants waived the right to a jury trial because they did not pay the jury fee on time under the local rule. In this connection, I address two important subtopics: (A) The lack of uniformity among local rules on jury fee payment, and (B) The circuit court's obfuscation of the applicable standard of care, which would not have been permitted if there had been a jury trial. In part II, I dissent from the majority's decision that the damage caps in Wis. Stat. § 893.55(4) do not apply to medical residents. In part III, I comment on the circuit court's award of damages to Gregory Phelps for negligent infliction of emotional distress, in light of this court's recent decision in Pierce v. Physicians Insurance Co., 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558.
I.
I reluctantly agree with the majority's conclusion that the circuit judge did not erroneously exercise his discretion in holding that the defendants waived their statutory right to a jury trial. Because the circuit court did not employ the proper standard of "excusable neglect," this court's decision must rest entirely on the facts in the record, and specifically the fact that the defendant, more than 15 months before trial, paid the jury fee 11 days late. The defendants did not comply with the applicable Milwaukee County Circuit Court rule regarding payment of the jury fee and, as a consequence, they did not get a jury. See majority op., -35. Our affirmance of the court's ruling sets an extremely high bar to reverse excusable neglect determinations in future cases. Nonetheless, I would affirm and take this opportunity to discuss the disparity among local rules governing the payment of jury fees.
A. Local Rules
Wisconsin Stat. § 805.01 preserves the right to a jury trial in civil cases, so long as the right is not waived. The statute makes no mention of the timing of payment of jury fees. Accordingly, that detail is left to local rules.
A circuit court has the authority to "adopt and amend rules governing practice in that court," so long as the rules are "consistent with rul
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
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