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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
s not to address the impact of Pierce, because "such issues were not briefed or argued by the parties." Majority op., n.6. It should be noted that by letter dated March 30, 2004, Dr. Lindemann asked the court of appeals to delay its decision, pending this court's resolution of Pierce and Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866. Phelps, 273 Wis. 2d 667, n.11. The court declined to do so, but allowed that, " lthough the Pierce decision may impact this case, its application vel non will depend on the facts adduced at the trial on remand." Id.
Because of this court's decision, there will be no trial on remand. However, Dr. Lindemann will be permitted to argue that he qualified as an employee of a health care provider, and therefore is entitled to the benefits of chapter 655. He should also be allowed to argue the Pierce issue, as the court of appeals envisioned.
If the circuit court's award to Gregory Phelps stands, it represents a dramatic expansion of the scope of delivery room "bystander" claims in Wisconsin. Gregory was not a "participant" in the medical malpractice, as was the plaintiff in Pierce. However, the issue involves questions of fact not briefed to us, perhaps because the parties believed that (pursuant to the court of appeals' opinion) they would have the opportunity to argue the issue on remand. I would allow both sides to do so.
For the foregoing reasons, I respectfully concur in part and dissent in part.
I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this opinion.
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