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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
3, 113 N.W.2d 820 (1962) (counsel's failure to move for an enlargement of time until 14 weeks after a deadline passed is not excusable neglect). As a result, we uphold the circuit court's decision to deny PIC's motion for enlargement of time.
IV.
The next issue we must address is the proper standard of care for Dr. Lindemann, a then unlicensed first-year resident. PIC maintains that Dr. Lindemann should have been held to the standard of care applicable to an unlicensed first-year resident. The Phelpses, on the other hand, assert that the standard of care should be that of an average, fully licensed physician who provides obstetrical care.
A leading case in Wisconsin regarding the standard of care for physicians is Johnson v. Agoncillo, 183 Wis. 2d 143, 515 N.W.2d 508 (Ct. App. 1994). There, Dr. Agoncillo, a family practitioner with a general medical practice, undertook to treat a high-risk obstetrical patient. The child was born early and suffered complications stemming from his prematurity. The Johnsons alleged that Dr. Agoncillo was negligent because he did not fulfill the standard of care applicable to physicians who specialize in treating high-risk obstetrical patients. Accordingly, they argued that the circuit court erred by not instructing the jury that Dr. Agoncillo should be held to the standard of care applicable to those specialists.
The court of appeals rejected the Johnsons' claim. In doing so, it explained that the fact "that Dr. Agoncillo chose to care for and treat Ms. Johnson during her high-risk pregnancy did not transform his 'class' of physician to that of those who treat high-risk obstetrical patients." Id. at 152. As a result, the court of appeals concluded that Dr. Agoncillo "was and he remained a general family practitioner who treated obstetrical patients and, as instructed by the trial court, he was thus 'required to use the degree of care, skill, and judgment which is usually exercised in the same or similar circumstances' by the average physician in that class."
Id.
The pattern jury instructions on medical negligence reflect the two competing standards of care at issue in Johnson: one for general physicians and one for specialists. Wis JI----Civil 1023 provides in relevant part:
In (treating) (diagnosing) (plaintiff)'s (injuries) (condition), (doctor) was required to use the degree of care, skill, and judgment which reasonable (doctors who are in the general practice) (specialists who practice the specialty which (doctor) practices) would exercise in the same or similar circumstances, having due regard for the state of medical science at the time (plaintiff) was (treated) (diagnosed). A doctor who fails to conform to this standard is negligent. The burden is on (plaintiff) to prove that (doctor) was negligent.
The problem, of course, with Johnson and Wis JI----Civil 1023 is that both ignore the unique status of an unlicensed first-year resident. As an unlicensed first-year resident, Dr. Lindemann's authority was limited. Although he could refer to himself as an "M.D.," his freedom of action was more restricted than that of a licensed physician. Indeed, the circuit court found that Dr. Lindemann "had no authority or privileges to provide primary obstetrical care," and "was not supposed to act as the primary attending physician." Rather, " is primary duty was to assess and report findings and differential diagnoses to an upper level senior resident or to the attending obstetrician."
This court has not previously addressed the peculiar status of unlicensed first-year residents in the context of medical malpractice. Only a few states have addressed the question
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