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Hess v. Fernandez2/25/2005
medical malpractice claims, finding that Fernandez had negligently treated Joan Hess and failed to obtain informed consent for her treatment. The jury awarded plaintiffs $861,538.46 in damages, including $450,000 for Joan Hess. The remainder was awarded to her husband and children for derivative claims.
. After the verdict, Hess moved to amend the pleadings to recover costs and reasonable actual attorney fees under Wis. Stat. § 51.61(7)(a). Hess alleged that because Fernandez denied her "prompt and adequate treatment," as guaranteed under § 51.61(1)(f), they qualified to receive payment under § 51.61(7)(a). Although their original pleadings did not include a claim under § 51.61, the circuit court granted the motion, concluding that Fernandez had violated Joan Hess's right to adequate treatment based on the jury's finding of negligence. However, the amount of costs and fees was to be determined at a later date.
. After the circuit court granted the post-verdict motion, it awarded Hess $911,409.81 in reasonable actual attorney fees under Wis. Stat. § 51.61(7)(a), reducing the request by the time Hess's attorneys spent on derivative claims and other matters. The court also awarded Hess costs in the amount of $295,567.43, minus statutory costs that had already been paid. The court instructed the parties either to determine the actual amounts based on the decision or to mediate. Ultimately, the court entered a judgment on the § 51.61(7)(a) claim for Hess in the amount of $1,250,576.73, which included the costs and reasonable actual attorney fees in pursuing the post-verdict motion to amend.
. Fernandez and the Fund were unsuccessful in motions for reconsideration. The court of appeals certified the issues to this court. We accepted certification of all issues raised in the certification from the court of appeals, and we now reverse for the reasons set forth herein.
II.
. The first issue that we address is whether the circuit court erred in allowing Hess to amend the original pleadings to include a claim for costs and reasonable actual attorney fees under Wis. Stat. § 51.61(7)(a). Such a decision by the circuit court to grant leave to amend a complaint is discretionary. Finley v. Culligan, 201 Wis. 2d 611, 626, 548 N.W.2d 854 (Ct. App. 1996). A court misused its discretion if the court failed to exercise its discretion, the facts do not support the court's decision, or the court applied the wrong legal standard. Id. On review, we will not upset a discretionary decision unless such discretion was erroneously exercised. Stanhope v. Brown County, 90 Wis. 2d 823, 834, 280 N.W.2d 711 (1979). A circuit court has properly exercised its discretion when it has "examined the relevant facts, applied a proper legal standard, and, using a demonstrated rational process, reached a reasonable conclusion." Martindale v. Ripp, 2001 WI 113, , 246 Wis. 2d 67, 629 N.W.2d 698 (citations omitted).
. When reviewing the legal standard in this case, we look first to Wis. Stat. § 802.09(2). This subsection, along with § 802.09(1), sets forth the applicable standards for the circuit court to apply in deciding if an amendment conforms to the evidence:
If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is
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