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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
tion for reconsideration.
Additionally, the circuit court could have considered the plaintiffs' pretrial brief in support of a motion for declaratory judgment, in which the plaintiffs convincingly argued that Lindemann "was an employee or actual agent of St. Joseph's." As the plaintiffs noted in that filing, the following facts are undisputed: (1) St. Joseph's fully reimbursed MCWAH for Lindemann's stipends, costs, expenses, and other benefits; (2) Lindemann was required to comply with the policies and procedures of St. Joseph's; (3) Lindemann testified that St. Joseph's had the right to control his day-to-day activities at the hospital; and (4) St. Joseph's provided its residents with free meals, free parking, free laundry services, discounts in the cafeteria, use of the hospital's scrub outfits, use of a room to rest in, and funding for educational conferences.
This argument was consistent with the plaintiffs' earlier filings. In their original complaint, filed September 30, 1999, the plaintiffs named the Patients Compensation Fund as a defendant and alleged that the Fund is a mandatory health care liability risk sharing plan created by Chapter 655 . . . whose obligations and responsibilities include making payments in excess of underlying insurance limits on behalf of negligent health care providers in the State of Wisconsin, including . . . any individual acting with real or apparent authority of St. Joseph's Hospital of Franciscan Sisters, Milwaukee, Inc. including, but not limited to, Matthew Lindemann, M.D. . . .
(Emphasis added.)
The plaintiffs also indicated their intent to file a medical mediation request "pursuant to Chapter 655 of the Wisconsin Statutes . . . ." The plaintiffs reiterated the claim that Lindemann was an "agent, servant, and/or employee" of St. Joseph's no less than nine times in the complaint.
The plaintiffs filed an amended summons and complaint April 14, 2000. In the amended complaint, the plaintiffs named as additional defendants the Medical College of Wisconsin Affiliated Hospital (MCWAH), its insurer, Physicians Insurance Company of Wisconsin (PIC), and Lindemann, as an individual. The amended complaint alleged that chapter 655 did not apply to Lindemann, but continued to name the Fund as a defendant. While now alleging that "MCWAH was the employer of the defendant, Matthew Lindemann, M.D.," the Phelpses repeatedly alleged that Lindemann was an "agent, servant, and/or employee" of St. Joseph's, or alternatively an "individual over whom St. Joseph's had supervisory control and responsibility with respect to medical care provided to patients . . . ."
In a response to interrogatories dated May 31, 2000, MCWAH admitted both that "[MCWAH] was the employer of Matthew Lindemann on November 24, 1998" and that "St. Joseph's Hospital of Franciscan Sisters, Milwaukee, Inc. was the de facto employer of Matthew Lindemann on November 24, 1998." In a separate response, St. Joseph's admitted that MCWAH was Lindemann's employer, but denied that St. Joseph's was Lindemann's de facto employer.
In time, the circuit court recognized that, "MCWAH did not control the performance of Dr. Lindemann's duties as a resident physician." Accordingly, MCWAH could not be held liable under the doctrine of respondeat superior, and the circuit court granted its motion for summary judgment on November 14, 2000.
Given all these facts and both sides' arguments, it is hard to imagine how Lindemann does not qualify as St. Joseph's "employee." St. Joseph's self-serving argument that it was not Lindemann's de facto employer is difficult to square with the realities of the situation. The absence of a finding t
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