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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
hat Lindemann was St. Joseph's "employee" means that medical residents are effectively the only workers in a hospital not covered by the damage caps, despite the fact that as new doctors, they are perhaps most in need of the protections in chapter 655. The Legislature could not have intended such a restrictive definition of "employee" in this context.
I conclude that the circuit court's initial decision that chapter 655 did not apply, and its denial of the defendants' motion for reconsideration, effectively means that it found that Lindemann was not St. Joseph's employee. The decision therefore implicitly contained both a clearly erroneous finding of fact (that MCWAH did not relinquish control of Lindemann to St. Joseph's) and an incorrect conclusion of law (that Lindemann was not St. Joseph's "borrowed employee"). I would reverse the circuit court's decision on this issue, and hold as a matter of law that Lindemann is subject to chapter 655 because he is an "employee" of a health care provider, St. Joseph's Hospital. See Wis. Stat. ยงยง 655.005, 655.017, 893.55(4)(b).
Alternatively, to the extent the circuit court's rulings on this issue were discretionary decisions, they should also be reversed. In my view, the circuit court did not exercise any discretion at all. This court has often written that "discretion 'is not the equivalent of unfettered decision-making.'" Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, , 253 Wis.2d 238, 646 N.W.2d 19 (citing Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981)). As we have explained,
"A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law." Hartung, 102 Wis. 2d at 66. In Howard v. Duersten, the court stated: "The trial court must undertake a reasonable inquiry and examination of the facts as the basis of its decision. The exercise of discretion must depend on facts that are of record or that are reasonably derived by inference from the record and the basis [of that] exercise of discretion should be set forth." Howard v. Duersten, 81 Wis.2d 301, 305, 260 N.W.2d 274 (1977) (emphasis added). As the Hartung court put it, " discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Hartung, 102 Wis.2d at 66 (emphasis added). In reviewing these discretionary determinations, an appellate court should not be expected to read the mind of the trial judge.
Split Rock Hardwoods, 253 Wis. 2d 238, .
The circuit court's conclusory rulings on this issue do not satisfy this test, and should be vacated. Upon remand, the circuit court should not simply rely on its prior rulings in this regard because those rulings reflect a complete absence of any exercise of discretion. Instead, on remand, the circuit court should apply the facts and arguments described above to determine whether Lindemann qualified for cap protection as a "borrowed employee" of St. Joseph's under the standards described above.
III.
Finally, I question whether the circuit court's award of $200,000 to Gregory Phelps, the father, for negligent infliction of emotional distress is warranted under our decision in Pierce. In that case, we allowed a mother of a stillborn to raise such a claim based on the mother's unique status as both "a participant, and a victim of the actionable conduct----medical malpractice----that gave rise to her claim." Pierce, 278 Wis. 2d 82, , 15.
The majority choose
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