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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
ahendr Kochar, testified about MCWAH's nature and function. MCW provides funding to MCWAH for administrative and clerical services. The residents selected to serve at the 14 affiliated hospitals sign contracts with MCWAH, and each of the affiliated hospitals contributes to MCWAH in order to fund the residents' salaries and benefits. In effect, "MCWAH simply takes funds provided by hospitals to pay the resident, deposits it into an account, and then issues a check to the resident." Dr. Kochar testified that MCWAH had no control of the residents at the various hospitals where they are placed. This is pursuant to agreements with the hospitals and in keeping with the original intent of the creation of MCWAH in 1980. MCWAH is, in essence a conduit to facilitate payments, and has no supervisory or control role over the residents.
The circuit court agreed when it granted partial summary judgment dismissing MCWAH from the case: "MCWAH did not control the performance of Dr. Lindemann's duties as a resident physician."
Having briefly delineated the general employment status of medical residents in the MCW program, I turn to the question of the applicability of chapter 655 and the medical malpractice damage caps to Dr. Lindemann. The majority opinion adopts the part of the court of appeals' decision remanding the cause "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)." Majority op., . Both the majority and the court of appeals ignore the fact that the circuit court has already ruled on this issue twice. Both times, the circuit court determined that Dr. Lindemann was not an employee, and therefore not covered by the damage caps.
This issue arose for the first time as a result of the plaintiffs' motion for declaratory judgment as to the applicability of chapter 655 to the case. The defendants, in a brief opposing the plaintiffs' motion, argued that chapter 655 applied because Lindemann was a "de facto employee or agent of a hospital or a borrowed employee of the attending physician . . . . " See Wis. Stat. § 655.005. The defendants' argument on this point was nearly six pages in length, extensively discussing the applicable legal standards. The circuit court summarily dismissed these arguments in a decision letter. The court simply stated that it was "not persuaded that defendant Lindemann is entitled to the protection of Chapter 655 of the statutes . . . ." The court relied on the fact that Lindemann was not a "physician" as that term is defined in chapter 655; the decision letter never mentioned the defendants' argument that Lindemann was an "employee" of a health care provider, and therefore covered by chapter 655.
The defendants brought a motion for reconsideration, and again briefed and argued the "employee" issue to the court. In a one-sentence response to these arguments, the circuit court wrote, "Defendants' motion to reconsider the court's July 18, 2000 decision holding that Chapter 655 does not apply in this case is denied."
The court of appeals has held that whether MCWAH residents are employees of the hospitals at which they serve is a "factual issue." Estate of Hegarty v. Beauchaine, 2001 WI App 300, , 249 Wis. 2d 142, 638 N.W.2d 355. As such, " he trier of fact must determine whether [MCWAH] intended to relinquish control to the hospital, the attending physician, or someone else." Id., .
We defer to the circuit court's findings of fact unless they are "clearly erroneous." See, e.g., Schreiber v. Physicians Ins. Co. of Wis., 223 Wis. 2d 417, 426, 588 N.W.2d 26 (199
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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