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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
t findings and differential diagnoses to an upper level senior resident or to the attending obstetrician. He had no authority, however, to provide primary obstetrical care or perform a c-section on Marlene.
Dr. Lindemann ordered lactated ringers to be administered at 2:40 a.m. for suspected contractions. They did not alleviate Marlene's pain. At 3:00 a.m., Dr. Lindemann reached a differential diagnosis of pubic symphysis pain, bladder pain, labor or placental abruption. Accordingly, he ordered a foley catheter to determine if Marlene had a bladder infection. The urinalysis returned at 3:50 a.m. indicated that she did not.
Due to the continued pain she was experiencing, Marlene requested at 4:15 a.m. that the attending nurse call Dr. Lindemann again. Fetal heart monitoring and an ultrasound established that the twins' heart rates were within normal ranges. Dr. Lindemann informed Marlene that he would take a picture of the ultrasound so that he could consult an upper level senior resident.
After this examination, Dr. Lindemann ordered a potent narcotic, Demerol, to be administered to Marlene at 4:50 a.m. and 5:20 a.m. Dr. Lindemann never satisfactorily explained his whereabouts between 4:15 a.m. and 6:00 a.m. However, there is no evidence that he ever contacted an upper level senior resident to discuss Marlene's case.
Marlene remained in pain when Dr. Lindemann examined her again at 6:00 a.m. At 6:45 a.m., her husband Gregory Phelps (hereinafter "Gregory") arrived at the hospital. Marlene informed Gregory that she felt the need to defecate and asked for assistance to get to the commode. At 7:00 a.m., while sitting on the commode, she reached down and felt toes extending from her.
Her husband rushed to the nurses' desk where he found another doctor, who delivered Adam Phelps (hereinafter "Adam") at 7:20 a.m. Adam was immediately rushed to the neonatal intensive care unit where resuscitation efforts began. The efforts proved unsuccessful, and he was pronounced dead at 7:36 a.m. Adam's death was caused from a combination of asphyxia due to cord entrapment and placental abruption, which impaired his oxygen supply.
During this time, Marlene was rushed from her room to the operating room where anesthesia was administered at 7:30 a.m. The second twin, Kyle, was delivered at 7:43 a.m. Afterward, the treating physicians questioned Dr. Lindemann about his decisions, his whereabouts, and his diagnosis. Dr. Lindemann's responses were primarily that he did not know or remember.
Marlene, Gregory, and their two children Caroline and Kyle (collectively, "the Phelpses") subsequently brought suit on the ground of negligence. On April 14, 2000, they filed an amended summons and complaint, naming Dr. Lindemann and his insurer, Physicians Insurance Company of Wisconsin, Inc. (collectively, "PIC"). PIC filed an answer on May 30, 2000, and demanded a trial by jury.
On July 10, 2001, the trial court entered a standard scheduling order, which provided as material to the jury-trial issue: "Jury fees must be paid in accordance with Local Rule #371 on or before 9-1-01 or the jury shall be deemed waived." PIC missed this deadline, paying the $72 jury fee by letter dated September 12, 2001, which was then filed by the clerk of circuit court on September 13, 2001. PIC did not send a copy of the late payment letter to the Phelpses' counsel.
Assuming that the jury fee had been paid on time, on September 11, 2002, counsel for the Phelpses and PIC filed with the trial court a "stipulation to amend scheduling order," which, among other things, set a "12 person Jury Trial" for December 4, 2002. They later filed their r
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