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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
ightly stating its view of the law.
Moreover, we cannot know how application of the correct standard would have altered the court's apportionment of damages. The court decided that Dr. Lindemann was 80 percent responsible and St. Joseph's was 20 percent responsible for the incident. Had the circuit court proceeded under the appropriate standard of care, it might have decided that St. Joseph's had a higher degree of culpability given its responsibility to supervise Dr. Lindemann. The degree of supervision expected of a hospital in its relationship with an unlicensed first-year resident is likely quite different from the degree of supervision expected of the same hospital in its relationship with an experienced physician.
In a trial to the court, all the participants should understand the rules of engagement. See State v. Watkins, 2002 WI 101, , 255 Wis. 2d 265, 647 N.W.2d 244. In the absence of a jury, the circuit court must provide a "clear analysis of its thinking on the legal issues" in the case. Id. Because the court did not do so in this case, the parties deserve another trial at which the applicable standard of care is clear.
II.
The majority concludes that Dr. Lindemann is not a health care provider, is not covered by chapter 655, is not covered by the Patients Compensation Fund, and is not subject to the medical malpractice damage caps. In so holding, the majority accepts the plaintiff's contention that "the non-economic damage cap in § 655.017, as implemented through § 893.55(4), does not apply to a first-year unlicensed medical resident who is not covered by Chapter 655." I do not dispute that residents are not "health care providers" under a stringent interpretation of Wis. Stat. § 655.002. However, unlike the majority, I would hold that the circuit court's two rulings that Lindemann was not St. Joseph's "employee" were clearly erroneous findings of fact. Based on the facts in the record, I would hold that Lindemann was St. Joseph's "employee" as a matter of law.
Alternatively, to the extent that the circuit court's rulings could be considered discretionary decisions applying the facts of this case to the appropriate legal standard, I would hold that the two rulings were erroneous exercises of discretion because they reflect a complete absence of discretionary decision-making. See Hess v. Fernandez, 2005 WI 19, , 278 Wis. 2d 283, 692 N.W.2d 655 ("A court misused its discretion if the court failed to exercise its discretion, the facts do not support the court's decision, or the court applied the wrong legal standard.").
Prior to discussing the circuit court's determinations, it is essential to review the peculiar employment status of medical residents.
The employment status of medical residents is somewhat unusual. For purposes of analysis, the Medical College of Wisconsin (MCW) presently offers 83 residency and fellowship programs. The doctors serving in these programs did not necessarily attend medical school at MCW; graduates of any medical school may apply for an MCW residency position. Residents selected for one of these programs generally rotate through two or three of the Medical College's 14 affiliated hospitals. For instance, in the Obstetrics & Gynecology program, residents rotate through three institutions: Froedtert Hospital, St. Joseph's Hospital, and Columbia-St. Mary's Hospital.
To simplify the administration of these programs, the 14 affiliated hospitals formed The Medical College of Wisconsin Affiliated Hospitals (MCWAH), a nonprofit, charitable corporation exempt from federal income tax under § 501(c)(3) of the Internal Revenue Code. MCWAH's Executive Director, Dr. M
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