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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
of whether first-year residents should be held to the same standard of care as licensed physicians, and the results appear somewhat mixed. Compare, e.g., Rush v. Akron Gen. Hosp., 171 N.E.2d 378, 381 (Ohio Ct. App. 1957) (" hat is required in the case of an [unlicensed] intern is that he shall possess such skill and use such care and diligence in the handling of emergency cases as capable medical college graduates serving hospitals as interns ordinarily possess under similar circumstances . . . .") with Centman v. Cobb, 581 N.E.2d 1286, 1288 (Ind. Ct. App. 1991) (" e conclude that such [a first-year resident] is a practitioner of medicine required to exercise the same standard of skill as a physician with an unlimited license to practice medicine.").
Answering this question now, we determine that physicians like Dr. Lindemann should be held to the standard of care applicable to an unlicensed first-year resident based on the unique restrictions described above. Although we anticipate this new standard of care to be lower than that of an average licensed physician in some cases, we do not expect that it will become a grant of immunity. After all, unlicensed first-year residents are graduates of a medical school who provide sophisticated health care services appropriate to their "in training" status. Therefore, unlicensed residents could still be found negligent if, for example, they undertook to treat outside the scope of their authority and expertise, or they failed to consult with someone more skilled and experienced when the standard of care required it.
In the present case, the circuit court found Dr. Lindemann to be causally negligent under both standards of care. That is, it found him to be negligent under the standard applicable to a first-year resident as well as under the standard applicable to an average physician treating an obstetrical patient. The circuit court then apportioned 80% of the causal negligence to Dr. Lindemann and 20% to St. Joseph's Hospital. The court of appeals questioned this conclusion, noting that the percentages of comparative negligence allocated to Dr. Lindemann and St. Joseph's presumably may be influenced by a change in the standards by which their relative conduct was measured. Phelps, 273 Wis. 2d 667, .
The apportionment of comparative negligence is a matter left to the trier of fact. Voight v. Riesterer, 187 Wis. 2d 459, 467, 523 N.W.2d 133 (Ct. App. 1994). Where more than one reasonable inference can be drawn from the evidence, appellate courts will accept the inference drawn by the trier of fact. Id. (citing Brain v. Mann, 129 Wis. 2d 447, 452, 385 N.W.2d 227 (Ct. App. 1986)). Appellate courts will sustain the apportionment of comparative negligence unless the circuit court's determination was clearly erroneous. Id. (citing Wis. Stat. ยง 805.17(2)). Examining the record in the present case, we are satisfied that the circuit court's exercise of discretion was not clearly erroneous.
Here, the circuit court's factual findings and conclusions of law specifically delineate the ways in which Dr. Lindemann violated both standards of care. From these findings and conclusions emerge two primary faults that are equally applicable to unlicensed first-year residents and average physicians treating an obstetrical patient: (1) the failure to consult with another physician, whether an upper level resident or an attending obstetrician; and (2) the failure to move Marlene to the Labor and Delivery section of the hospital. The court's decision states in relevant part:
* At 4:15 a.m. "The standard of care applicable to a first year resident and the standard determined by this court in its letter decision [of an average physician
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Wisconsin Personal Injury Attorneys
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