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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
l, the circuit court found that Dr. Lindemann negligently caused Adam's death. In its decision, the circuit court determined Dr. Lindemann to be causally negligent in his care and treatment under both the standard of care applicable to a first-year resident and the standard of care of a physician treating an obstetrical patient. It then apportioned 80% of the causal negligence to Dr. Lindemann and 20% to St. Joseph's Hospital. Gregory and Marlene were awarded $901,015, while their children Caroline and Kyle Phelps were each awarded $45,000. PIC appealed.
The court of appeals reversed and remanded for a jury trial, concluding that the circuit court had failed to apply the proper analysis with regard to the late payment of the jury fee, and that the defense counsel's late payment was caused by excusable neglect. Phelps v. Physicians Ins. Co., 2004 WI App 91, -13, 273 Wis. 2d 667, 681 N.W.2d 571. The court of appeals also held that as a first-year resident, Dr. Lindemann was not a licensed physician and should have been held to the standard of care "applicable to his class." Id., .
In addressing Dr. Worthington's letter concerning Dr. Lindemann's care of Marlene, the court of appeals determined that Dr. Lindemann was a "health care provider" for purposes of Wis. Stat. § 146.38 and set forth factual inquiries to be made on remand for determining the applicability of the privilege. Id., , 40. Finally, the court of appeals ruled that the cap on non-economic damages imposed by Wis. Stat. § 893.55(4)(b) did not apply to Dr. Lindemann. Id., . Both the Phelpses and PIC petitioned this court for review.
II.
This case presents us with several issues. Initially, we must determine whether PIC waived its right to a jury trial by failing to timely pay the jury fee, and if so, whether the circuit court properly exercised its discretion when it denied PIC's request to enlarge the time on the basis of excusable neglect. The decision to forgive late payment of a jury fee is within the circuit court's discretion. Chitwood v. A.O. Smith Harvestore Prods., Inc., 170 Wis. 2d 622, 628, 489 N.W.2d 697 (Ct. App. 1992). Accordingly, we review the decision of the circuit court to determine if it erroneously exercised its discretion.
Additionally, we must address the proper standard of care for Dr. Lindemann, a then unlicensed first-year medical resident. This presents a question of law subject to independent appellate review. See Taft v. Derricks, 2000 WI App 103, , 235 Wis. 2d 22, 613 N.W.2d 190. Finally, we must resolve the applicability of two statutes to this case: the health care services review privilege found in Wis. Stat. § 146.38, and the cap on non-economic damages imposed by Wis. Stat. § 893.55(4)(b). The interpretation and application of these statutes also present questions of law subject to independent appellate review. Dunn County v. Judy K., 2002 WI 87, , 254 Wis. 2d 383, 647 N.W.2d 799 (citing Waukesha County v. Steven H., 2000 WI 28, , 233 Wis. 2d 344, 607 N.W.2d 607).
III.
We turn first to the issue of whether PIC waived its right to a jury trial by failing to timely pay the jury fee, and, if so, whether the circuit court properly exercised its discretion when it denied PIC's motion to enlarge the time on the basis of excusable neglect. PIC submits that the answer to both of these questions is "no." It maintains that late payment of a jury fee is not a basis for finding waiver of the right to trial by jury. Additionally, it asserts that the circuit court erroneously exercised its discretion by denying its motion to extend the time for paying the jury fee. As such, PIC asks that we uphold the decision of the court of ap
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