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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
and depriving them of the right to a jury trial.
In this case, the jury trial fee was paid 11 days late but more than 15 months before trial. Although such minimal delay did not appear to prejudice any party's preparation for trial, the circuit court chose not to retroactively extend the time for filing. Appellate courts will normally uphold the circuit court's ruling in the enforcement of local rules. See Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, , 275 Wis. 2d 1, 683 N.W.2d 58. I reluctantly concur in the majority's decision to do so in this case.
B. Standard of Care
In any negligence case, the plaintiff must prove that the defendant breached a duty of care to the plaintiff. See, e.g., Morden v. Cont'l AG, 2000 WI 51, , 235 Wis. 2d 325, 611 N.W.2d 659. In a medical malpractice case, the plaintiff must provide expert testimony to establish the defendant's breach of the appropriate standard. Olfe v. Gordon, 93 Wis. 2d 173, 180, 286 N.W.2d 573 (1980).
The circuit court's pretrial ruling in this case appeared to obviate the need for proof as to the applicable standard of care. In a letter to counsel for both sides, Judge Sullivan stated: "During [the time in question, Dr. Lindemann] assumed the mantle of a physician treating an obstetrical patient. Therefore, that must be the standard to which he is held." However, in the circuit court's "Conclusions of Law," Judge Sullivan wrote "the defendant, Dr. Matthew Lindemann was negligent in his care and treatment of Marlene Phelps and Adam Phelps under both the standard of care applicable to a first year resident and the standard of care determined to be applicable by this court in its decision dated November 27, 2002."
In a holding I fully join, the majority determines that the circuit court's initial decision was incorrect. Majority op., -47. Instead of adopting a "treating physician" standard, the circuit court should have used the standard of care applicable to an unlicensed first-year resident. Id., . The majority opinion focuses on affirming the circuit court's findings that show "the ways in which Dr. Lindemann violated both standards of care." Majority op., . It reinforces the court's action with the conclusory comment that "To the extent the circuit court erred in applying the standard of care applicable to an average physician treating an obstetrical patient, we deem that error harmless." Majority op., n.13.
I strongly disagree. The majority relies on the circuit court's post-hoc rationalization that Lindemann was negligent under either standard of care. It ignores the fact that the conduct of the trial would have been different if the circuit court's original ruling had favored the standard of care applicable to an unlicensed first-year resident----the same standard the majority now recognizes as the proper one----instead of the standard applicable to an average physician treating an obstetrical patient.
The following examples illustrate the point. Dr. Dennis Worthington was one of Lindemann's supervisors in the obstetrics department at St. Joseph's. During his testimony at trial on December 5, 2002, Dr. Worthington had the following exchange with the plaintiffs' counsel:
Q: . . . id you reach a conclusion on whether or not Dr. Lindemann failed to meet the standard of care required of him at St. Joseph's Hospital?
A: Yeah----I'm not sure that there is a definitive standard of care for----for interns that is----in terms of standard of care it----
At that point, the plaintiffs' counsel cut off the answer, saying "Doctor, maybe I can help you. The court has set what the standard is----." Defense counsel
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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