Estate of Hegarty Ex Rel. Hegarty v. Beauchaine

of Sarah M. Hegarty, deceased, Jer Estate Hegarty, Special emiah J. Administrator, and Jer Hegarty Mary Hegarty, emiah J. D.

Plaintiffs-Appellants,† Involuntary-Plaintiff, Milwaukee County,

v. Angela Beauchaine, M.D., Ernest Stremski, M.D., Hospital Children's of Wisconsin, Inc., a Wiscon hospital corporation, sin OHIC Insurance Com pany, foreign corporation, a insurance and The College Medical of Wisconsin, Inc., a Wisconsi n

corporation, Defendants, College Hospi Medical of Wisconsin Affiliated corporation, Inc., a Wisconsin tals, Defendant-Respondent, † Physicians Inc., Company Insurance of Wisconsin, corporation,

Wisconsin insurance Defendant, Mary Jo Zimmer, M.D., Fireman's Fund Insurance Company Compensation and Wisconsin Patients Defendants-Respondents.

Fund, Appeals

Court of argument No. Oral September 00-2144. 2001. Decided October

† Petitions to denied review 2-19-02. App 300

2001 WI 355.) (Also reported 638 N.W.2d plaintiffs-appellants, cause On behalf of the Cannon, Edward on the briefs of William M. submitted Dunphy, E. Frink of & Robinson, Sarah Cannon E. argument by M. oral William S.C., Brookfield, with Cannon. defendant-respondent Medical Col- of the

On behalf Hospitals, lege Inc., the Affiliated cause of Wisconsin Joseph Fasi, II on M. the brief was submitted Murray, Mullaney Peterson, S.C., & F. Johnson Peter oí Mullaney. argument by F. Milwaukee, with oral Peter Mary defendants-respondents Jo On behalf Com- Insurance Zimmer, M.D., and Fireman's Fund pany, of Samuel J. on the brief the cause was submitted Malloy Douglas of Leib & Leib, S. and Mark D. Knott by argument oral Samuel Katt, S.C., Milwaukee, with J. Leib. Curley, Fine, and JJ.

Before Schudson Hegarty CURLEY, J. estate of Sarah appeal Mary Hegarty, parents, and her Jeremiah and granting separate court of the circuit from two orders negligence summary judgment dismissing and all Mary against M.D., Zimmer, defendants, Jo claims (Af- Hospitals College of Affiliated Medical Wisconsin liability respective Hospitals), insur- and their filiated (1) appeal: anee carriers. Five issues are raised on plaintiffs whether the waived their statute of limita- (2) argument; § tions whether Wis. Stat. 893.551 is the controlling wrongful statute of limitations for death (3) malpractice; actions caused medical whether the complaint adding amended Dr. Zimmer aas defendant filing original relates back to the date of of the com- (4) plaint; plaintiffs whether the discovered, inor diligence exercise of reasonable should have discovered, they negligence what ing believe was Dr. Zimmer's in caus- (5) daughter's their death; and whether Affiliated Hospitals vicariously liable for the actions of its employee respondeat superior. based on the doctrine of wrongful 2. We conclude that because the death malpractice, are claims based on medical the trial court correctly applied malpractice the medical statute of § limitations, found in Wis. Stat. 893.55. We also con- plaintiffs' clude that because addition of Dr. Zimmer to malpractice the medical action was not based on Dr. identity, complaint Zimmer's mistaken the amended original complaint. does not relate back to the Further, genuine we determine that because a issue exists to as conflicting number of facts, material and reasonable undisputed inferences can be drawn from the facts, summary judgment inappropriate and a trial is (1) necessary to resolve: whether Dr. Beauchaine was College a servant of the Medical of Wisconsin Affiliated (2) Hospitals; whether Dr. Beauchaine was a bor- employee. opinion rowed Therefore, this is the decision (1) regarding: of the court the statute of limitations (2) (3) issue; the relation Affiliated back doctrine; Hospitals' respondeat superior liability. However, with

1All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. discovery Hegartys' Zimmer's role

respect of Dr. to the opinion injury, Judge the decision of Fine's in Sarah's discovery issue. on the court Background. I. (Sarah), age Hegarty then ¶ 1992, In Sarah 3. Mary pediatrician patient Zim- Jo of a twelve, became Zimmer). (Dr. developing began When Sarah M.D. mer, Zimmer. pain Dr. consulted with 1995, she abdominal gastroenter- pediatric to a Sarah Zimmer referred Dr. diagnosed Hospital, ologist her with who at Children's syndrome. irritable bowel developed severe

¶ March Sarah 4. On vomiting. pain, was rushed She nausea abdominal p.m. emergency Hospital's at 4:30 room Children's to by initially M.D., Stremski, Ernest treated Sarah was Angela by physician, emergency later room first-year Dr. medical resident. M.D., a Beauchaine, p.m. 8:00 Sarah at admitted Stremski rapidly deteriorated. condition 5. Sarah's care after she was Sarah's Beauchaine, who took over yet first-year to resident, not licensed admitted, was in a practice enrolled Dr. Beauchaine was medicine. through training program graduate the Medi- medical (Medical College) College and the cal Wisconsin (Af- Hospitals College Affiliated Medical Wisconsin Hospitals). admission time of Sarah's From the filiated morning a.m. on the arrived at 7:30 Dr. Zimmer until physician to saw Sarah licensed 21, 1996, no March her condition. evaluate a.m. 6:00 records reflect The medical distended, 21, 1996, Sarah's abdomen March

on at rigid critical condition became Sarah's and tender. surgery at and taken resuscitated a.m.; 11:45 she was approximately p.m. by However, 1:45 that time, Sarah diagnosed complete was with small bowel volvulus with meaning infarction, bowel her small bowel had been supply. twisted and cut off from the blood ¶ fifty On 16, 1998, 7. March after more than surgical procedures related to her intestinal difficulties, Sarah died. The of cost Sarah's medical care over this two-year period nearly $3,000,000. reached On Decem- plaintiffs setting 18, 1998, ber filed suit forth wrongful survival claims on behalf of Sarah's estate and parents. death on claims behalf of Sarah's The com- plaint brought against Dr. Beauchaine, Dr. Strem- Hospital, College, ski, Children's the Medical Affiliated Hospitals, respective liability their insurers, and the Compensation Wisconsin Patients Fund. part discovery request, plaintiffs 8. As of a Hospital

received medical from records Children's April September of but it was not until of 1999 plaintiffs depositions that the took the Stremski, Drs. depositions, Beauchaine and Zimmer. In their Drs. Stremski and Beauchaine stated that Dr. Zimmer had arriving been involved Sarah's care before at the hospital morning They on the March spoken revealed that each had with Dr. Zimmer over telephone on 20, 1996, March and that Dr. Zimmer throughout evening had directed Sarah's treatment early morning. and into the On 20, 1999, December depositions, based on information disclosed at these plaintiffs complaint adding filed an amended Dr. Zim- mer to the lawsuit. against 9. The trial court dismissed the claims determining Zimmer, that the action was barred malpractice

the medical statute limitations, Wis. § 893.55. The court also dismissed the claims Stat. against Hospitals, Affiliated which were based on the superior. respondeat The trial court ruled doctrine of vicariously Hospitals held could not be Affiliated negligence when it had no Dr. Beauchaine's liable for of her work. control over the details Analysis. II. Argument Limitations and the Statute A. Waiver ¶ for the first time on assert, 10. The wrong governing appeal, of limitations that the statute applies Dr. medical mal death actions to Zimmer's ful Generally, timely. practice this thus, the action was and, for the first time on not review an issue raised court will judicial appeal, not administration does but this rule of power appellate court's to address the issue. affect the Ehly, 433, 443-44, 287 N.W.2d140 v. 93 Wis. 2d Wirth (1980), grounds superseded on other Wis. Stat. Assuming § waived, we this issue was 895.52. to address it for three reasons. choose a waived issue is of statewide First, 11. where may importance choose to address it interest, or we Schmaling, judicial economy. State v. interests of (Ct. 1995); App. 756, 763, N.W.2d555 198 2d 543 Wis. 221 159, 162, N.W. 733 Weichers, v. 197 Wis. Weichers (1928). present that the to assure We address the issue injured or to claim to have been families of those who malpractice have died a result of medical have as potential regarding adequate their claims notice question providers. against Further, the care health likely significant are fact situations because similar arise.

153 appellate may ¶ 12. Second, courts review issues appeal question raised for the time first on when a presented dependent law is that is not on the facts as presented In re Hulett, 20, below. v. 6 27, Wis. 2d Graffin (1959). 94 N.W.2d 127 The issue here concerns the application ques limitations, of a statute of which is a Holding, law, tion of see v. Ocularra Inc., Webb 232 Wis. (Ct. 1999), App. 495, 502, 2d 606 N.W.2d552 overruled grounds by Skemp, on other Paul v. 42, 2001 WI 242 independent Wis. 2d N.W.2d from the facts the record. parties fully Third, 13. where the have briefed they

the issue, here, as have and where there are no disputes, appellate may factual courts overlook Wirth, waiver. 2d at Thus, Wis. for the reasons stated, we elect to decide the statute of limitations issue.

B. Statute Limitations of reviewing grant

¶ 14. In a trial court's of sum mary judgment, we first consider which statute of applies. limitations Ritt See v. Dental Assocs., Care 199 (Ct. 1995). App. 48, 60, Wis. 2d 543 N.W.2d852 Deter mining applies which statute of limitations to an action question is a of law which Webb, we review de novo. 232 2d Wis. at 502. brought 15. The trial court ruled that all claims

by Hegartys subject and Sarah's were to the estate malpractice medical statute limitations, of Wis. Stat.

154 893.55(1).2 the general The contend that § to the concerning injury person, statute of limitations to their 893.54,3 § should be applied found Wis. Stat. claim. and conclude that disagree death We wrongful n wrongful by death claims caused medical malpractice of limitations concern- subject specific are statute 893.55(1). § medical found Wis. Stat. ing malpractice, 16. The of a statute is a of law meaning question de novo. v. Em which we review Schmidt Wisconsin Bd., 35, 41, Funds 153 2d 449 N.W.2d Trust Wis. ploye (1990). wrongful death Hegartys' 268 Whether by action is time barred the statute of limitations actions is an issue of first medical governs malpractice 2 893.55(1) § provides: Stat. WisConsin actions; malpractice; Medical limitation of limitation (1) by damages; damages. Except provided as itemization (2) (3), damages injury arising an action to recover for subs. any any operation performed by, or from from treatment or regardless by, person provider, a health care omission who is based, theory action shall commenced on which the be the later of: within (a) injury, years Three from the date of the or or, injury year in the from the date the was discovered Ob) One discovered, diligence have been exercise of reasonable should may paragraph except this that an action not be commencedunder years from the date of the act or omission. more than 5 provides: § 893.54 WISCONSIN Stat. following Injury person. commenced to the actions shall be years or be barred: within (1) damages injuries person. An to recover for to the action (2) damages brought An to recover for death caused action wrongful act, neglect default another. or of

155 impression involving statutory construction. See Paul v. Skemp, ¶42, 10, 507, 2001 242 Wis. 2d 625 N.W.2d WI ordinarily engage statutory 860. "A court not will ambiguous." Czapinski construction unless a statute is Hosp., ¶80, 17, v. St. Francis 2000 WI 236 Wis. 2d (citation omitted). 613 N.W.2d120 statutory purpose [T]he construction is to ascertain give legislature. effect to the intent of the In intent, however, determining legislative first resort language must be to the of the statute itself. A... ambiguous capable being statute is it when is under- by reasonably persons stood well-informed in two or more different senses. Martin, 883, 893-94,

State v. 162 2dWis. 470 N.W.2d (1991) (citations omitted). 900 Here, reasonable minds have understood interplay ways; of these statutes in different there required interpret fore, we are the statute to deter legislature. mine the intent of the While either statute independently only applicable, considered could be one applied. be Erdmann, will See Clark v. 2d Wis. (1991). § 436, 468 N.W.2d 18 Since Stat. Wis. 893.55 is specific begin statutes, the more of the two we our analysis there to determine if its terms are met. Id. at 436-37. language

¶ 18. first turn We to the of the statute § encompasses "damages itself. Wisconsin 893.55 Stat. injury arising any operation for from treatment or performed by provider, regardless ... a health care theory (Emphasis on which the action is based." added.) supreme As the court noted in Clark: clearly

Section 893.55 specific the more of the two 893.54, only statutes. Unlike sec. it concerns not itself injury person, particular way with to the but also with a i.e., injury arises, in which the resulting from an act or provider." omission of a "health care apparent legislature Thus, Id. at 436-37. it is that the any alleging negligence against intended that claim a provider §by health care would he 893.55, controlled though malpractice even the medical claim is based on wrongful theory negligence. a death of Despite supporting

¶ 19. the existence of case law argue conclusion, our that Wis. 893.55(1) § only malpractice deals with medical Stat. injury claims, not death. However, this distinction is of consequence malpractice setting. no in a medical In § analyzing supreme "[T]here 893.55, the stated: court logical injury is no distinction between and death claims arising malpractice. out of medical Once medical mal practice produces remedy regardless loss, a exists consequence injury whether the or death." Rineck v. (1990), Johnson, 659, 671, 155 Wis. 2d 456 N.W.2d336 part by Chang overruled in v. State Farm Mut. Auto Ins. (1994). Co., 549, 182 Wis. 2d 514 N.W.2d399 supreme ¶ In Rineck, court examined the relationship § 655, Stats., between ch. and 893.55. Id.

at 665. The court stated: 655,

Chapter Stats., 37, by enacted ch. Laws of established an procedure prosecution exclusive for the malpractice against claims provider. a health care ... Chapter produced by 655 sets tort claims medical malpractice apart claims, parties from other tort conclusively presumed are provi- to be bound chapter regardless injury sions of the or death. (citation omitted). "[S]oon Id. after the enactment of Chapter legislature § passed 893.55, Stat. Wis. part, damages to limit the a claimant could recover

157 Czapinski, malpractice claims." WI medical under the exclusive statute 893.55 is 80 at 14. Section "[eco- Chapter claims and limits for limitations bodily- damages under ch. 655 for recovered nomic 893.55(4)(e) (emphasis § injury or death." Wis. Stat. added). Czapinski and dealt with 21. While Rineck they damages malpractice claims, in medical issue clearly "by singling proposition out for the that stand leg- malpractice manner, in the claims such medical malpractice in- to set medical cases islature intended volving apart death cases to which the death from other wrongful applies." general Rineck, 155 death statute § Thus, must conclude that 893.55 2d at 671. we Wis. injury applies unequivocally and death claims to both wrong- malpractice. resulting Therefore, medical from malprac- are of medical ful death claims that the result § subject are to 893.55.4 tice Hegartys argue produce that this would an absurd conceivably wrongful death action could

result because injured and it accrued when an individual was expire before year injury for more than one discovered the but lived Therefore, conclude, § they under 893.54 subsequently died. expire accrue until death but would before the action would not 893.55(l)(b). § of the claimant under death however, faulty premise on the argument, This is based limitations, wrongful applying be death statute one would until 893.54, and, the action would not accrue consequently, § limitations, 893.55, § Applying the correct statute of death. " injury." the claimant 'discovers' action 'accrues' when Fund, 82, Comp. 2000 WI Aicher v. Wisconsin Patients Although possible it is to bar a 237 Wis. 2d 613 N.W.2d849. injury, one discovers an malpractice medical action before C. Relation Back complaint against

¶ 22. The amended Dr. Zimmer years was filed in 1999, injury. December of more than three from the date of Sarah's The trial court ruled complaint that the amended was also filed more than year one from the date the should have hospitalization discovered Dr. Zimmer's role Sarah's Accordingly, granted and treatment. the trial court summary judgment concluding Zimmer, favor of Dr. complaint that the amended was barred the statute 893.55(1). § limitations, grant ¶ 23. Our review of a trial court's of sum mary judgment Spring is de novo. Green Farms v. Kersten, 136 2d 304, 315-16, Wis. 401 N.W.2d 816 (1987). Summary judgment granted must be if the genuine evidence demonstrates "that there is no issue any moving party as to material fact and that the judgment entitled to a as a matter of law." Wis. Stat. 802.08(2). Rule Hegartys

¶ 24. The contend that the amended complaint against Dr. Zimmer relates back to the date filing original complaint of of the 18, 1998. —December they complaint Thus, conclude that the amended was years injury. filed within three of the date However, applied the relation back doctrine cannot be because identity. there was no mistake as to Dr. Zimmer's We may yield result, this supreme a harsh the court has held 893.55(l)(b) § that right-to-remedy "doles] not violate the prospective clause a legislative because claimant does not a have right pursue to a malpractice injury medical action if the statutory discovered after the period elapses." time limitation at Id. identity never was Dr. Zimmer's that because

conclude complaint does not relate back doubt, in the amended original filing date. the 802.09(3) provides: §

¶ 25. Wisconsin Stat. pleading arose out in the amended If the claim asserted occurrence, forth or transaction, or event set of the original pleading, the in the attempted to be set forth the filing date of the back to the amendment relates changing party the An amendment original pleading. if the asserted relates back against whom a claim is party.. . and... such foregoing provision is satisfied institution of the action notice of the has received such maintaining a prejudiced in he or she will not be merits, have and knew or should known defense on the concerning identity that, a mistake but for brought the action have been proper party, would party. against such added.) 'changing party' phrase

(Emphasis can "The (1) ways: of a new different substitution be read four (2) present defendant, addition of a defendant for the (3) changing capacity of the the stated defendant, (4) changing misdescription or mis a defendant and (misnomer) naming v. One 1973 of the defendant." State (Ct. App. Cadillac, 2d 291 N.W.2d 95 Wis. 1980) (citations omitted). 802.09(3) § changing party a under 26. While adding party, Cadillac, 95 Wis. see One 1973

includes have existed 649-50, to do so there must 2d at order party concerning identity proper of the a mistake original pleading being filed, added when the now 802.09(3). Although § claim see Wis. Stat. they Zimmer's involve- the extent of Dr. did not know they they confused about ment, assert that were never identity. Zimmer's 160 "Identity" "[t]he 27. is defined as collective as pect thing of the set of characteristics which a is definitively recognizable or known." American Heritage (2d ed.). interpret Dictionary We this to include an physical individual's name and which, characteristics distinguish person taken whole, as a from another person, signifying individuality. Hegar- their Here, the tys were not confused as to Dr. Zimmer's name or defining They characteristics. never confused Dr. Zim- mer with another doctor. The have known Dr. began treating Zimmer since at least when she Hegartys experienced difficulty identify Sarah. The ing alleged negligence, the extent of Dr. Zimmer's not identity. her Thus, because there was no mistake con cerning identity, complaint Dr. Zimmer's the amended original complaint. does not relate back to the See Co., Groom v. 'ls Ins. 179 Wis. 2d 252-53, 507 Prof (Ct. 1993) App. (holding N.W.2d 121 that because plaintiffs parties malpractice addition of to medical action was not based on mistaken identities, amended complaint original complaint). did not relate back to Discovery D. The Rule previously

¶ 28. stated, As our review of a trial grant summary judgment court's is de novo. Green Spring Summary judg- Farms, 136 Wis. 2d at 315-16. any ment is used to determine whether there are disputed require facts that trial, and, a if not, whether party judgment is entitled to aas matter of Id. law. at 802.08(2). § 315; Wis. Stat. Summary judgment methodology appellate City same for trial and courts. Preloznik v. (Ct.

Madison, 112, 115-16, 113 Wis. 2d 334 N.W.2d580 1983). App. present In the case, we must first determine Spring complaint states a claim. Green the whether Hegartys have stated If the 2d at 315. Farms, 136 Wis. pleadings of factual the existence the show a claim and moving the examine whether issues, then we must presented that would party, a defense Zimmer, has Dr. If 2d at 116. Preloznik, 113 Wis. See defeat the claim. summary prima facie case for made a Dr. Zimmer has pleadings, judgment, affidavits, the the court examines interrogatories, depositions, and admissions answers to genuine as to issue exists whether file to determine on any conflicting reasonable fact, or whether material undisputed may facts, both of drawn from inferences be Spring require Farms, 136 Wis. a trial. See Green which Power Elec. 315; Farms Ltd. v. Wisconsin 2d at Ford (Ct. App. 654, 430 94 650, 2d N.W.2d Co., 145 Wis. 1988). discovery Hegartys rely on the Here, the improperly contending trial court the

rule in They argue summary judgment. granted the that while years complaint than three filed more was amended against injury, Dr. Zimmer their suit after the date of discovering year brought properly one of within Dr. injuries. causing negligence The Sarah's in Zimmer's summary judgment granted disagreed in trial court expiration the Dr. Zimmer based on favor of 893.55(1). § The limitations under Wis. Stat. statute discovery rule that, determined based on trial court applied Co., 179 Wis. 2d in v. 'lsIns. Groom as Prof (Ct. 1993), hospital App. a review of 121 507 N.W.2d Hos from Children's records, obtained pital April alerted them to 1997, should have in causing injury at actions Sarah's role Zimmer's complaint they year filed the amended one before least adding Dr. Zimmer to the lawsuit.

162 discovery ¶ 31. The rule was established in Hansen v.A.H. Co., Robins 2d 550, Wis. 335 N.W.2d (1983). discovery Under the rule, a cause of action injury accrues on the date the discovered or with diligence reasonable should be discovered, whichever occurs first. Id. at 560. developed 32. This rule was further in Borello v. (1986). Co.,

U.S. Oil 130 Wis. 2d 388 N.W.2d 140 plaintiff in Borello had a furnace installed her suffering basement and within a few weeks was from respiratory problems. headaches, dizziness and Id. at despite 400. She saw a number and, of doctors her contrary, they symp insistence to the told her that her probably toms were not related to the furnace. Id. at years symptoms began, 409. Two after her initial diagnosed doctor her with "metal fume fever" which was by caused the defective furnace. Id. She filed suit and a statute of limitations defense was advanced. Id. at 399. supreme plaintiff court concluded that the had not injury diagnosis discovered her until the doctor's concluding "metal fume fever." Id. at 401. In that discovery discovery probable includes of the cause of injury, the court stated that "a cause of action will not plaintiff accrue until the discovers, or in the exercise diligence only reasonable should have discovered, not injury injury probably the fact of but also that the product." caused the defendant's conduct or Id. at 411. present

¶ Hegartys they 33. In the case, claim knowledge negligent did not obtain of Dr. Zimmer's regarding September conduct Sarah's care until of 1999 depositions when the of Drs. Beauchaine and Stremski question stage were proceedings However, taken. "the at this of the Hegartys] [the actually is not when learned 163 [they] against [Dr. Zimmer], had but when a claim [they] Groom, 179 at 250 known." Wis. 2d should have n.3. that 34. Dr. Zimmer asserts after the extent of her involvement

should have known examining Therefore, medical we must records. the medical records to determine whether examine diligence discovering plaintiff exercised reasonable only injury part [']s not but also "the defendant Light Kolpin Co., & cause." v. Pioneer 162 Power (1991). Additionally, in 2d N.W.2d Wis. 595 summary judgment analysis, we look to see our discovery any disputed regarding and, are whether facts undisputed, only if sonably whether one inference can be rea Farms, Ford from those facts. See

drawn 2d at Wis. 654. analysis dates in 35. The relevant facts and this

include: 20, 1996, p.m.,

1. On March at 4:30 Sarah was Hospital; taken to Children's 20, 1996, p.m., On March at 8:00 Stremski Hospital; admitted Sarah to Children's admission, 3. Dr. the After Sarah's Beauchaine was physician physically who to dur- attended Sarah ing evening early morning; the a.m., 21, 1996, 4. On March at 8:15 Dr. Zimmer examined Sarah and transferred her to first care; intensive 1997, Hegartys

5. the April In received Hospital pursu- medical records from Children's discovery request; ant to 16, 1998, died; On March Sarah 6. 18, 1998, Hegartys

7. On December filed suit against Stremski, Beauchaine, Dr. Dr. Children's Hospital, College, Hospi- the Medical Affiliated tals, insurers, respective liability their and the Fund; Compensation Wisconsin 1999, September Hegartys 8. In deposed Dr. Beauchaine, and, Stremski and Dr. as a result of Zimmer; testimony, deposed their Dr. 20, 1999, Hegartys On December moved to their complaint adding

amend Dr. Zimmer as a defendant. by

¶ 36. The maintain that 6:00 a.m. on March Sarah's condition had deteriorated so drasti- cally that no medical attention could have saved her They argue life. that Sarah's abdomen would not have become distended and her small intestines would not requiring surgeries, died, have further but for the negligence attending night of those to her the of March early morning. They 20 and into the contend that based provided by Hospital, on the medical records Children's they reasonably concluded that Dr. and Dr. Stremski primarily responsible negli- Beauchaine were for the gence; appear Zimmer, not Dr. did whose name not attending the medical records as after Sarah until morning 8:00 a.m. on the of March 21. disputes

¶ 37. No one that Dr. Zimmer's name was places Hospital listed in several Sarah's Children's (1) Hegartys: medical records received "History Physical listing form, Examination" primary physician, phone Zimmer as Sarah's and her (this top page eventually number at the of the form was signed by 1996); Dr. Zimmer at 8:15 a.m. on March (2) pre- "Emergency Orders," a Admission The Service stating private patient printed Sarah was a form, that (3) The "Patient Admission Information" Zimmer; Dr. among computer-generated sheet, which, data form, a writing, "ATT1 Zim- information, contains other (4) containing "Progress Mary Notes," mer, Jo"; and all after the Zimmer, Dr. entered medical entries early morning These entries refer- 21, on March 1996. pro simply encing or Zimmer are administrative name the fact that Dr. Zimmer's entries, forma says nothing primary pediatrician listed as Sarah's in care Dr. Zimmer was involved Sarah's about whether during period" of the late afternoon on the "critical time early morning Further, Dr. on March 21. March 20 until morning 21, of March Zimmer's entries made on the gave that Dr. Zimmer was involved no indication during the "critical time." Sarah's care very Ultimately, provide lim- these records regarding in Sarah's information Dr. Zimmer's role ited during of her care. Cer- treatment tainly the critical hours already Hegartys knew that Dr. Zimmer was daughter's primary physician and that she had their approximately hospital 8:00 a.m. on arrived at the at any way 21, do not indicate in March but these records Zimmer called several times on March that Dr. they clarify Dr. Zimmer discussed Sarah's nor do Beauchaine and Stremski and recom- care with Drs. treatment, critical of future over the mended the course first-year phone, observations, on a resident's based through night. carry would Sarah which submit that it was not until 39. The they deposed in the Fall Drs. Stremski and Beauchaine they Dr. Zimmer's crucial role of 1999 that discovered daughter during care of their the admission and early morning evening 1996, and the of March depositions, they 21, March 1996. At the discovered admitting Dr. Dr. Zimmer that Stremski called before p.m. They Sarah at 8:00 during on March 20. learned that also phone conversation, Dr. this Zimmer discussed accepted condition, Sarah's the admission and con- They Dr. curred with Stremski's course of treatment. surprised spoke also were to learn that Dr. Beauchaine by telephone approximately Dr. Zimmer with at 8:00 p.m. on March 20 and that all of the orders that Dr. throughout night Beauchaine recommended were Dr. based on Zimmer's recommended course of treat- Hegartys they Moreover, ment. knowledge assert had no approximately that at 6:00 a.m. on March again spoke Dr. Dr. Zimmer Beauchaine with deteriorating informed her of Sarah's condition and only request gas- then did Dr. her Zimmer tell trointestinal consultation. simply

¶ 40. not This information attainable from the records alone. Based on the medical records provided April

to the in in the diligence, they of reasonable could not have exercise suspected negligence. Groom, See 179 Wis. Zimmer's However, 2d at the trial court stated: 247-48. So that from the records that I have referenced here morning, supervision this I conclude that Dr. Zimmer's of Dr. Beauchaine . . . could be inferred to be within the plaintiff reach of the from the documents.. ..

.... So that the conclusion is that I don't believe under plaintiff is entitled to the circumstances discovery in the date of the rule. information medical records is sufficient. disagrees. yield

This author The medical records do not pertinent an that led to accurate account of the events injury. Sarah's in the medical records does it Nowhere clearly in that Dr. Zimmer was involved Sarah's reflect they to Dr. refer to Dr. Zimmer's directions care, nor do regards to Sarah's course of treatment. Beauchaine distinguishable present here are The circumstances by upon the trial court. Groom, relied from those brought a medical mal- Groom, In a woman against practice a doctor for the death of her action complaint Id. at 245. She later amended her husband. group, and his medical but the to add another doctor complaint her amended as barred trial court dismissed malpractice limitations, medical statute of Wis. complaint § amended 893.55, because the Stat. year after she have discov- filed more than one should against Id. The her claims the additional doctor. ered discovery day trial court ruled that the date of hospital was containing "the iden- records were sent to her providers [her husband's] tities of health care and the provided (emphasis care to him." Id. at 248 nature of added).

¶ medical Groom, 42. In this court examined the only that "the reasonable infer- records and concluded [the wife] had information to ence from them is that objective [the doctor]'s an belief that form the basis for a of her death." Id. at treatment was cause husband's only hospital records in not dis- 249-50. Groom identity physicians of the connected her closed the with care, contained information that the husband's but also history question a cardiac of her hus- doctor took treatment, and had band, knew her husband's course of drug knowledge prescribed that another doctor had Finally, her husband's death. Id. at 250. that caused developed that this doctor had records also revealed impression and a of treatment. Id. clinical course Groom, Unlike the court determined 43. where undisputed," are and that there that "the material facts "only [one] reasonable inference from these undis- present puted facts," 249-50, id. at case has a any number of unresolved factual issues and number of conflicting inferences which can be drawn from the allega- respect Dr. medical records. With Zimmer's that the have that she tions should known by examining records, was called the medical the trial stated: court certainly true

It is that the records don't contain everything happened here. There the tele- were phone place. every telephone calls that took Not call is noted. Hospital

The Milwaukee Children's records are not before, every respect. they I complete As said don't every phone reflect call between Dr. Zimmer and Dr. evidently phone Beauchaine. There were calls made. telephone First, no calls are "noted" in the any medical records. The medical records failed to note phone calls between "Dr. Zimmer and Dr. Beauchaine." during argument, parties' Second, oral own attor- neys agree phone could not on the number of calls However, referenced in the medical records. in Dr. support argues dismissal, Zimmer's brief in she "[t]he Sarah, medical records are clear as to who treated they her, con- when treated and what the treatment sisted of. . . . The Plaintiffs knew that Dr. Zimmer was argument Further, involved in Sarah's treatment." in to emergency that, Dr. Zimmer court, this insisted "the clearly telephone reflect calls on the room records evening 'admitting physician,' the of March 1996 to

169 very Zimmer, which, Dr. at the least would warrant immediate attention." Dr. Zimmer's conten- counsel's are incorrect. tions records 45. A careful review of the medical phone to Dr. Zimmer. no clear evidence of calls

reveals points support of her Dr. Zimmer to two documents (1) "Emergency [Njursing Room conclusion: (2) Physical "History [N]ote," and and Examination" [N]ursing "Emergency [N]ote," dated form. The Room 20, 1996, to March written before Sarah was admitted hospital, observations, top phone written on the Zimmer's name and number page, front there no reference in that docu- but actually called. ment that Dr. Zimmer was ever simply documents do not substanti- 46. These ate that Dr. Zimmer was called on March contrary argument, Thus, to Dr. Zimmer's the records "clearly evening telephone do not reflect calls" on the " 'admitting physician,' 20, 1996, to the March supplied by Zimmer." Absent the information Drs. depositions, Beauchaine and Stremski their no one reasonably minor could surmise from these references "admitting" to "doctor" in the medical records that or actually spoke to Dr. Drs. Beauchaine Stremski 20, 1996, Zimmer about Sarah's care on March or the morning pro references, March 21. From these forma only one could conclude that Dr. Zimmer was Sarah's reasonably suspect pediatrician, that but no one could Dr. Zimmer Sarah's condition with the treat- discussed ing physicians, their of treat- concurred with course ment, and recommended all of Sarah's treatment orders throughout night. Dr. Zimmer's name is While certainly records, on the medical the records do listed supervising care. not reveal Dr. Zimmer's role Sarah's "[p]laintiffs may not close 47. While true eyes reasonably their to means of information accessible good apply faith attention to to them and must in their may particulars be inferred to be within those which (emphasis reach," Groom, 2d at 251 their Wis. added), records, it more in the medical without impossible to know of Dr. Zimmer's for the supplied the information later crucial role without testimony deposition Drs. Beauchaine's and Stremski's regarding phone Groom, these records calls. Unlike readily Dr. Zimmer's involvement do not demonstrate during Further, the critical hours of Sarah's care.5 this goes dispute to the heart of the evi- factual whether provided in the dence contained the medical records Hegartys they information such that with sufficient in of have Dr. Zimmer's role the cause should known injury. Accordingly, clarity number, the and Sarah's presence any hospital of reference in the records to phone made Dr. and Dr. Beauchaine to calls Stremski question in a Dr. Zimmer on the dates is material fact dispute. that remains in Additionally, challenged,

¶ 48. Dr. Zimmer at trial appeal, personal and on whether the had knowledge of the level of Dr. Zimmer's involvement. stating parents Both filed affidavits with the trial court they knowledge had that no of Zimmer's involve- daughter's during evening in ment their care the early morning March 20 and the of March 21 until after depositions However, the in the other doctors. its Co., 2d Borello v. U.S. Oil 130 Wis. 388 N.W.2d 140 (1986), beliefs, subjective suspicions, also makes clear that or enough discovery. hunches will not be to establish a date of Id. light at 411-16. This rationale becomes relevant in of the present supreme facts court's recent decision in Jandrt Foods, Inc., (1999), v. 2d Jerome 227 Wis. 597 N.W.2d 744 unreasonably where the court concluded that a law firm fol expert/doctor's suggestion lowed an to continue a lawsuit discovery" concerning order to "take link. Id. weak causal at sanctioning lawyers continuing In 565-66. for a frivolous lawsuit, explained lawyers the court that will not be allowed to they claim "safe harbor" where choose to file an action first and underlying through then sort out the element of causation discovery investigation an completed where could be without discovery. Id. at 567-69. The court concluded that the "filefirst approach litigation carry questions and ask later" will not day. Id. at 569. summary judgment, granting court, the trial

decision referencing records, medical stated: signature appears form

At the bottom of this time is not indicated signature Sarah's mother. the date. nor is Hegarty, Mrs. certainly expect that

I wouldn't mentioned, I the con- last document that signing that form, immediately taken note of the have sent would if other reason than that I read for no paragraph ... but it would be under considerable stress she was records anybody looking over those disclosure some residents are hierarchy a here and that that there is attending physicians. supervision the under surrounding Hegar- dispute the what 49. This appar- they tys more it becomes and when knew knew argument attorney's light oral of Dr. Zimmer's ent immediately preceding decision the trial court's claiming "They that even are counsel stated: which right got [Dr. Zimmer] there, didn't do the she when They They thing. the that since that. have known knew right standing Hegarty place. Mrs. date this took attorney. they They to an went knew that when there. argued They suspicion." Zimmer brief, In her Dr. had a injury" present at the time of mother was that "Sarah's rendering physicians "[p]laintiffs treat- knew of all argued pleadings, the Zimmer that Dr. ment." In her only confirmed what "would have medical records present already she was knew because Sarah's mother Finally, Zimmer Dr. Zimmer at Children's." with "[t]his 22 hour includes the time frame concluded that 'delay' of the Plaintiffs the basis which constitutes time. claim," the critical i.e., parties dispute ¶ 50. It is clear that the whether parents knowledge Sarah's had actual of Dr. Zimmer's negligence. implied Moreover, the that, trial court at point, Hegartys personal knowledge some attained supervision, despite of Dr. Zimmer's their affidavits to contrary. above, As referenced the trial court relied summary judgment analysis. on this fact in its undisputed, ¶ 51. "When the material facts are only reasonably one inference can be drawn from plaintiff diligence them, whether a exercised reasonable discovering injury [the] question in. is a of law." Id. at "only maybe if Moreover, 249. one reasonable inference undisputed drawing drawn from the facts, then the question appellate that inference is a of law, and an may However, court summary judgment draw it." Id. we will reverse

if a review of the record reveals disputed undisputed material facts or exist mate rial facts from exist which reasonable alternative infer may ences be Boss, drawn. Grams v. Wis. 2d (1980). 338, 294 N.W.2d473 Here, a number of material facts remain in dispute. arguments First, based on the at trial and on appeal, parties disagree it is clear that the as to whether personal knowledge had of Dr. Zimmer's supervision dispute before the fall of 1999. This knowing material because without of Dr. Zimmer's supervision during evening, of Sarah's care Hegartys daughter's "injury, were of their unaware its identity allegedly nature, cause, its and the the responsible Spitler Dean, v. 148 Wis. 2d defendant." (1989). 635, 436 N.W.2d308 ¶ dispute Second, noted, 53. as there is a factual phone as to the number and nature of the calls between hospital the and Dr. Zimmer as reflected in the medical correctly records. While the trial court concluded that 174 actually Hegartys the not affect whether does this [wa]s information "there whether knew, it does affect [ injury cause of her of... the claimant available to part Ford Farms ] in that cause." the defendant's and 2d at 657. Co., 145 Wis. Elec. Power Ltd. v. Wisconsin may Finally, inference be a factual ¶ "whether 54. it and whether is reasonable it is drawn, whether questions for only of law all inference are reasonable The trial court con- Id. at 249. decide." court to this supervision Beauchaine of Dr. that Dr. Zimmer's cluded hospital After alone. records inferred from the could be independent records, this is medical review of the an only inference. reasonable not the easily just Zim- infer that Dr. could as 55. One nothing medical treatment to do with Sarah's had mer morning is The record March until the dispositively insufficiently developed resolve these Beauchaine's from Drs. information Absent the issues. Hegartys depositions, not have could and Stremski's daughter's] [their care health identities of known "the providers [her]." provided to care the nature of and 2d at 248. Groom, 179 Wis. summary judgment often stated 56. "Wehave granted remedy unless and not be should

a drastic dispute, competing infer- no are not material facts the issue is that resolves arise, and the law can ences Boston, 81 Mut. Ins. Co. v. American clear." Lecus (1977). "Summary 183, 189, 260 N.W.2d 2dWis. deposi- judgment on affidavits to be a trial is not - just Unfortunately, a has become this Id. tions." - depositions medical records affidavits, trial on jury question jury. significant A left to the task better actually knew or should exists as to when Zimmer's involvement of Dr. the extent have known daughter and the 20, 1996, on March their the care of early morning of March 21, 1996. See Farms, Ford Accordingly, grant Wis. 2d at 659. the trial court's of summary judgment inappropriate. was Respondeat Superior E. grant summary judgment, In its the tried Hospitals

court determined that Affiliated had no vi- liability respect carious with to Dr. Beauchaine. Under respondeat superior, the doctrine of the trial court though concluded that even Dr. Beauchaine em- ployed by Hospitals, Affiliated she was not Affiliated Hospital's right "servant" because it lacked the to con- trol the details of her work. undisputed

¶ 58. It is that Dr. Beauchaine was an employee Hospitals. of Affiliated contend "employee" that the terms and "servant" are used inter- changeably employment and, therefore, once there is an relationship, respondeat superior liability follows as a disagree. matter of law. We respondeat superior, 59. Under the doctrine of subject liability the master is to for the torts of the acting scope servant committed while in the or his her 219(1) employment. § Agency (Second) Restatement (1958). "employer" While the distinction between "employee" "master," and "servant," has become important. blurred, the distinction remains The su- preme court has stated:

In more recent times "employer the words and em- ployee" nearly supplanted have the older term of "mas- ter and servant." This shift has been due no doubt employment vast increase persons of skilled industry. The word "servant" has certain connota- tions which are many persons distasteful to ... so that "servant," "employee" the terms about that has come it interchangeably without used "agent" are often legal meaning. strict regard to their Dep't 242 Ryan Taxation, Wis. v. Wisconsin of omitted). (citation (1943) 393 496-97, 8 N.W.2d great. significance legal A is servant ¶ 60. perform only employed for an a service "one not right subject control or to the other's "is other," but also 24, 33, 2d 481 Port, Wis. v. 167 Kashishian of control." omitted). (citations (1992) civil Wisconsin's 277 N.W.2d defining clar jury adds further these terms instruction employed to ity "A is one 'servant' to this distinction: or her affairs perform another his for service physical respect in the her conduct to his or who, with subject other's performance to the services, is of the right There 4030. to control." Wis control or JI — Civil legal applied standard the correct fore, the trial court "employee" distinguishing and "servant." an between Hospitals Accordingly, ad Affiliated since 61. employee, must its we Beauchaine was that Dr. mits right the details to control it had "the whether examine Newspapers, [her] v. Inc. Wisconsin Madison of work." N.W.2d51 Dep't 745, 764, 2d 599 Revenue, 228 Wis. 1999). (Ct. right App. the dominant to control is "The determining individual is a servant." an whether test Hosp., Trinity 188, 199, Pamperin 144 2d Wis. Mem'l v. (1988). factors are "However, other 423 N.W.2d including place the work, the time of considered, payment, nature of employment, method of party occupation, in- furnishes which or business parties strumentalities or tools, the intent of the to the right summary discharge contract, and the of em- ployees." Id. at 199. Hospitals Here, Affiliated claims that it primarily bookkeeping

served as "an administrative or function on behalf of hundreds of medical trainees." This ignores undisputed suggest statement facts that Affili- Hospitals entity: ated was more than an administrative (1) Hospitals employed Affiliated Beauchaine under a (2) employment agreement; written Beauchaine received (3) paycheck Hospitals; her and W2 from Affiliated placed hospitals residents like Beauchaine were at through Hospitals' graduate training Affiliated medical (4) program6; Hospitals provided Affiliated Beauchaine disability, health, with life, and accidental death and 6The College Medical of Wisconsin "Housestaff Handbook" states: College The Medical of Wisconsin has affiliations with a cooperate number of health providing care institutions which component undergraduate the clinical medical [The education. College] Medical and jointly these affiliated institutions also con- graduate duct through programs medical education . .. . .. the College Hospitals.

Medical of Wisconsin Affiliated ... Hospitals], tutions and controlled conducted There through jointly by are by program director, presently [Affiliated [the Medical ^[72] Hospitals]. residency College] who is an Each and and its affiliated insti- program fellowship programs, officer of is supervised [Affiliated added). (Emphasis

The "INSTITUTION AGREEMENT Between Medical Col- lege of Wisconsin Hospitals Affiliated and Hospital Children's Wisconsin" also refers to Hospitals Affiliated "Sponsoring as the Institution."

178 (5) Hospitals insurance; Affiliated set dismemberment (6) Hospitals schedule; Affiliated vacation Beauchaine's right unilaterally to terminate Beauchaine's had the (7) program directors, fire who her7; and to the contract responsible for evaluation and advancement of are the subject Beauchaine, to Affiliated like were residents governing Hospitals' policies procedures staff edu- and (8) Hospitals agreed provide cation8; and Affiliated "MEDICALCOLLEGE OF WISCON A document entitled GRADUATE MEDICAL AFFILIATED HOSPITALS SIN states, "Upon part: relevant TRAINING AGREEMENT" director trainee has not program the determination Agreement, under this or that obligation fulfilled his/her training program, successfully complete not the trainee will unilaterally Agreement Hospitals] may terminate this [Affiliated by giving written program the resident the and dismiss from added.) document (Emphasis This notice of termination." director, Beauchaine, as the program the as well signed by Dr. Hospitals. director of Affiliated executive Between Medical The "INSTITUTION AGREEMENT Hospitals Hospi Affiliated and Children's College of Wisconsin states, part: in relevant tal of Wisconsin" Agreement serve as Institution [T]his documentation shall Hospitals] Sponsoring [Affiliated Institution between hospitals. Hos- participating the Children's The administration of Lewis, Program agrees pital that Dr. David A. of Wisconsin Training Program Department Residency of the Director for [,] maintain administrative educational Pediatrics shall continue to pediatric supervisory responsibility all and combined for pediatric they are at medicine housestaff while internal as Hospital Dr. Lewis also continue of Wisconsin. shall Children's responsibility supervisory resi- for all educational administrative pediatric rotating programs general on the from other dents services.... govern Hospitals] procedures hous- policies and [Affiliated Hospital of at the shall followed Children's estaff education be Wisconsin. Dr. Beauchaine to legal with defense and her indemnify any for medical within malpractice occurring the scope of her employment.9 factors, 63. After citing these trial court

concluded:

I thing right think the essential is the here ... to control of the [Affiliated the details work as a resident. Lewis, signed This document is Dr. program Dr. Beauchaine's director, Anderson, Mark president executive vice of Kochar, Children's and Dr. Hospital, Mahendr the associate graduate of dean medical education at Affiliated Hospitals. Further, Dr. relationship Lewis clarified his with Affiliated Hospitals in deposition: his training program part [Affiliated directors all are of Hospitals'] training program of committee directors that adminis-

ter[s] training programs, or that all of oversees and that participates process reaccredidation evaluation of programs well-being and evaluation of the overall of residents in Hospitals] programs. [Affiliated all of the 9 The "MEDICAL COLLEGE OF WISCONSIN AFFILI ATED GRADUATE HOSPITALS MEDICAL TRAINING states, in AGREEMENT" also part: "During relevant the term appointment, Hospitals] [Affiliated agrees provide [t]o ... for legal indemnification, defense and the limits of within insurance force, of trainee sued for medical malpractice occurring within scope assignment." However, his or her College the Medical an provides exception Wisconsin "Housestaff Handbook" to that general rule: "Unlicensed housestaff insured are under the general liability policies insurance of the affiliated institutions to they assigned." Therefore, which are Hospitals while Affiliated agreed provide legal Dr. Beauchaine with defense and indem any claims, nification malpractice ultimately, for medical accord ing separate agreement to a Hospitals between Affiliated Hospital, Hospital actually Children's Children's provided liability Beauchaine with insurance because she was an unli censed resident. authority. that I think that doesn't have

Hospitals] liability impose vicarious runs attempt the to where fact, . that con- difficulty. . . Because of the Court into liability here under cludes that there is not vicarious grants ... and the motion the doctrine master/servant summary judgment [Affiliated of the defendant for Hospitals]. superior analysis, respondeat the In trial its supreme Kashishian, In the relied on Kashishian.

court hospital a have held that a doctor did not a court relationship hospital the "did not where master/servant Dr. control the manner in which Port's exercise cardiological over provided." Id. at 34. Dr. Port services were cardiologist Director Cardiol- a and the of Nuclear was ogy of the Disease Section the within Cardiovascular University Campus by run the of Clinical Milwaukee at Because of Dr. Medical School. Id. 29-30. Wisconsin judgment" independent professional "exercise of Port's hospital not in the a the court concluded that generally position to, not, exercise control would employee. an Id. at 34. over such superior analysis respondeat in the cur- 65. The liability vicarious of medical rent case involves program hospital, are rather there other than the but important Kashishian, In no one chal- distinctions. employee/servant lenged "Dr. an Port was Campus University Physicians Milwaukee Clinical concluding Plan, However, at 33. Practice Inc." Id. hospital, the court that Dr. Port was not a servant noted: [the was not

Other factors also indicate that Port malprac- alleged the time of the hospital's] servant at came from the Milwaukee paycheck tice. Dr. Port's Plan, entity corporate Practice controlled University University. Dean .[T]he . . Associate University of the School, of Wisconsin Medical stated in an affidavit that... he held the direct responsibility supervise the University activities of the faculty. ... He further indicated that all final decisions on appoint- reappointments ments and faculty of the ... were made by the Dean University of the Medical School.

Id. at 34-35. undisputed

¶ 66. A of number facts establish that Hospitals, group corporate Affiliated a similar to the entity by university controlled the in Kashishian, had authority employment. over Dr. Beauchaine's First, "the payment compensation, method of pres of and the right employer summarily ence ... of the of the hiring" terminate the contract or establish that Affili Hospitals ated exercised control over Dr. Beauchaine. See Scholz v. Comm'n, Indus. 31, 37, 267 Wis. 64 N.W.2d (1954). 204

¶ 67. In addition, in an affidavit, the executive Hospitals director of Affiliated stated that Dr. "performing Beauchaine would be medical services un- supervision der program the and control of the direc- Although program employee, tor." the director is not an Hospitals Affiliated admits that Dr. Lewis was "an [Affiliated Hospitals]." Finally, officer of signed Dr. Beauchaine training agreement" a "medical with Affiliated Hospitals stating "comply that she would with the professional policies, procedures, administrative and regulations [Affiliated Hospitals], rules and College Medical of Wisconsin, and the affiliated institu- assigned." tion agreement to which This he/she "[t]hese policies may further change noted that, from [Affiliated Hospitals'] time to time in sole discretion." Hospitals may 68. While Affiliated not have exercised exclusive or absolute control work, over her fully we key note that the trial court failed to address a 182 - control element whether to the relevant relationship servant. See a loaned or borrowed Dr. Beauchaine Ltd., 25, 43, 212 2d Wis. Corwyn Transp., Borneman v. v. (Ct. Borneman by 1997), App. 887 567 N.W.2d aff'd Ltd., 219 346, 580 N.W.2d 2dWis. Transport, Corwyn the Seaman test (1998). Borneman, In we applied emp loaned individual is a whether an to determine articulated The Seaman test, first loyee.10 is as follows: court supreme employee exists as be- employer The relation employee is employer to whom an special tween (a) Con- following facts concur: loaned whenever special for a employee to work part on the sent (b) entry by employee upon Actual employer; to an special employer pursuant of and for the work by supreme criticized the test has been Seaman it is so fact oriented. apply to because being as difficult court Ltd., See, 219 Wis. 2d Corwyn Transp., e.g., Borneman v. Zell, (1998); 190 2d v. Wis. 354-55, 253 580 N.W.2d Bauernfeind (1995). In the Wisconsin 701, 710, 346 528 N.W.2d 102.01(2) 102.29(6) (f), §§ and legislature enacted Wis. Stat. were help agencies. These statutes apply temporary to which employee an of whether simplify to the determination intended a tort action workplace may maintain injured in the who Inc., Papers, v. Nekoosa against temporary employer. a Gansch (1990). The 743, 751, 682 2d 463 N.W.2d 158 Wis. Bauernfeind sec. legislature "the intended court, however, has clarified that only respect 102.29(6), Stats., the Seaman test with replace to agency." Bauernfeind, temporary help employees of a to 2d at 712. Wis. "temporary a here. This is not are not relevant

Those issues Compen- «involvingthe Worker's agency" like Gansch help case employee involving the loaned cases Act. In all other sation the Seaman test doctrine, still utilizes supreme court Borneman, 2d at 355. We 219 Wis. to revise it. See has declined in Seaman. originally enunciated apply the test thus (c) express implied do; or contract to Power- of the so special employer to control the details of the work to be performed and to determine how work shall be done stop whether it shall or continue. (citation omitted). Id. at 32 The focus of the overall inquiry employment is "to determine whether a new by parties." contract was created Id. at 33. key ¶ 69. This determination ais element in the present respondeat superior analysis because of "a presumption well-established relevant to the control presump- element of the Seaman test." Id. at 43. This tion states:

In the absence of evidence to contrary, there anis inference that the actor remains in general [or her] his as, employment long by so the service rendered an- other, he [or she] is performing the business entrusted to general [them] employer. There is no infer- ence that general because the employer permitted has control, division of employer] [the has surrendered it. Id. at 43-44. "This inference has risen to the level of a legal presumption." Hospitals Id. at 44. Affiliated ar- gues required prove that it is not it loaned Dr. particular Beauchaine to a institution, nor was the trial required finding regard. court to make a in We disagree. Simply Hospitals because Affiliated allowed

a division of control, this we cannot assume that it relinquish generally Body intended to it. See Seaman Corp. v. Indus. Comm'n, 204 157, Wis. 235 N.W. 433 (1931). fully Where the trial court never considered the issue, sumption pre the record is insufficient to overcome the general

that Dr. Beauchaine remained in her employment Hospitals. with Affiliated Borneman, See

184 Hospitals must overcome 212 2d at 44. Affiliated Wis. by showing relinquished presumption full that it this Cutler-Hammer, v. servant. See Edwards control of its (1956). 606 272 Wis. 74 N.W.2d may pre general employer ¶ rebut the 71. The by showing relinquished sumption full control of that it plaintiffs Therefore, once the have its servant. Id. general employer prima that the facie case established here, master, as the have "the burden is the only upon general employer to establish not on control that he surrendered he loaned the servant but Borne direction over the servant to the borrower." and (citation omitted). 2d 44 man, Wis. at [Affili- stated, trial court "if it is not 72. As the [Hospital], Hospitals] then and it is not Children's ated Beauchaine's "master." is it?" Someone was Dr. who Kashishian, Dr. Beauchaine was the doctor Unlike independent given in the "exercise not professional full discretion first-year, judgment." unlicensed She was a deposition, In her Dr. Beauchaine medical resident. any procedures, perform she could not stated that she surgical consult, for a not authorized to call ability prescrip- write limited in her to was otherwise procedures. the unfettered This is not tions and order cardiologist independent in Kashish- discretion of ian. adequately devel- record is not 73. While the pleadings point, appears

oped from the on this it pro- excerpts depositions in the that the residents hospital. gram hospital Therefore, while from rotate Hospital, Dr. Beauchaine was under at Children's people. supervision on the floor of a number of While supervised admitting patients, Dr. Beauchaine was attending physician However, and a resident. senior day-to-day assignments, supervision Dr. Beauchaine's supervised by College and review were the Medical through pediatric faculty faculty member. This mem- previously program ber, referred to director, as does hospital hospital, assigned not rotate from to but is to a specific hospital. residency In Dr. Beauchaine's at Children's

Hospital, program her director was Dr. David Lewis. Dr. deposition: stated his Lewis training program part [Af- are a directors Hospitals'] filiated training program committee of di- rectors that administer or that all training oversees programs, participates and that in the process of reac- programs credidation and evaluation of and evaluation well-being of the overall of residents in all of the Hospitals'] [Affiliated programs.

Although employee Dr. Lewis was an of the Medical College, program director, as a he did and oversee Hospitals' policies procedures enforce Affiliated and governing Additionally, staff education. "an as officer"of Hospitals, apparently Affiliated Dr. Lewis was also subject Hospitals' policies procedures to Affiliated and Hospital pursuant while at Children's to the "INSTITU- TION AGREEMENT." residents, 75. The like Beauehaine, rotate hospital hospital. hospital,

from While at a a number of individuals "control the details of their work." One of being program these individuals who, director as previously Hospitals' stated, is a member of Affiliated residency program committee that subject oversees and is policies procedures to the of Affiliated Hospitals. importantly,

¶ 76. More before a resident is as- signed specific hospital waiting to a or while for an assignment, appears Hospitals it that Affiliated is the employer master. conclude that the evi- sole We pleadings, dence, forth in the was sufficient to as set presumption Dr. Beauchaine was both create the employee Hospitals. The an and a servant of Affiliated Hospi- determine Affiliated trier of fact must whether relinquish hospital, intended to control to the tals attending physician, or someone else. persons might

¶ 77. We conclude that reasonable disagree a as to whether Dr. Beauchaine was servant Hospitals and, so, if Affiliated Hos- Affiliated whether pitals relinquish another intended to full control to Resolving any regarding a factual institution. doubts summary judgment, against party moving for issue Hospitals, Clauder, v. 209 here Affiliated see L.L.N. Wis. (1997), 674, 684, 2d summary judgment 563 N.W.2d 434 we conclude that inappropriate a trial is necessary Preloznik, 113 issues, see to resolve these 2d at 116. Wis. examining pleadings, affidavits, 78. After papers

depositions, file, conclude that and other on we genuine facts, as to a of material a issue exists number may conflicting be drawn reasonable inferences undisputed requiring a trial. facts, therefore from the Spring Farms, 136 2d at 315. Two See Green Wis. (1) significant jury questions presented: at have been any of Affiliated time, Dr. Beauchaine servant employed by Hospitals Hospitals, i.e., Affiliated was she subject Hospitals' to Affiliated control or and was she (2) Hospitals right control; and, if so did Affiliated right to another and surrender loan Dr. Beauchaine that other institution or to control Dr. Beauchaine to grant Accordingly, person? we reverse the trial court's Hospitals' summary judgment vicari- as to Affiliated liability. ous

By part; in the Court.—Orders affirmed reversed in part and cause remanded. (dissenting). Judge FINE, J. Schudson and I

agree opinion's with the lead resolution the issues in II A., B., believe, discussed Section and C. We also opinion's however, that the lead of the discussion "dis covery" adopted, would, issue Section II D. if be a sea change require in our law that eliminate the would injured plaintiffs ment that gence" exercise "reasonable dili seeking possible to ascertain of their causes injuries, and would transmute the rule into one of 893.55(1). § discovery-in-fact. See Wis. Stat. Accord ingly, opinion opinion Section 1 of this is the of the court discovery-rule on Dowe, issue. See State v. 120 Wis. (1984). 192, 194, 2d 352 N.W.2d Judge joins opinion's ¶ 80. Schudson in the lead "respondeat superior" resolution of the issue, discussed opinion. in II Section E. of that For the reasons out set opinion, respectfully in 2 of I Section this dissent from majority's Section E. "discovery" 1. The rule. paradigm although

¶ 81. We start with the summary judgment may granted not be unless there disputed are no fact, and, issues of material therefore, a party judgment is entitled to a law, as matter of Wis. 802.08(2), party proof with the burden of Stat. Rule only summary on an element in the case can avoid judgment party evidentiary if that submits material "set[ting] specific 802.08(3), facts," forth Wis. Stat. Rule genuine Transpor that raise issues as to that element. Hunzinger tation Ins. Co. Co., v. Constr. 179 Wis. 2d (Ct. 1993). App. 281, 290-292, 136, 139-140 507 N.W.2d party If the with that burden does not show that there genuine respect is a issue material fact with to an summary judgment granted element, "shall" be on that 802.08(2). element. Rule opinion recognizes,

¶ 82. As the lead we review de summary novo a trial court's determination whether judgment required. Spring Green Farms v. Kersten, 136 Wis. 2d (1987). 315-316, 401 N.W.2d 820-821 insightful judge, Here, court, careful, the trial plaintiffs determined that the did not exercise reason diligence attempting timely able in determine the Mary tragic role of Jo Zimmer, M.D., in the death of Hegarty. Judge my Sarah M. analysis, On Schudson's and de novo agree.

we ¶ 83. As material to the issue of whether the plain- statute of limitations ran in connection with the 893.55(1) against § tiffs' claims Dr. Zimmer, Wis. Stat. requires medical-malpractice that a action be com- menced:

(a) years Three injury, from the date of or (b) year injury or, One from the date the was discovered in diligence the exercise of reasonable should have been discovered, except may that an action not be com- menced paragraph years under this more than 5 from the date of the act or omission. plaintiffs

The focus is on whether the exercised reason- diligence ascertaining able Zimmer's role Hegarty care and treatment of Sarah while Sarah Hegarty Hospital. was at Children's reasonable-diligence objective

¶ 84. The test is an Pepin County, one. v. 345, 353, Carlson 167 Wis. 2d 481 (Ct. 1992). App. Additionally, 498, N.W.2d 501 what a

189 imputed by plaintiff lawyer that to a knows retained plaintiff. Co., 2d Ins. 179 Wis. Groom v. Professionals 1993). (Ct. App. n.3, 121, 125 n.3 241, 250 507 N.W.2d Hegartys actually knew is that what the This means personal assuming dispositive. of Rather, lack not knowledge, exercise of reason the is what the issue lawyers diligence or their either the able 353, 2d at 481 Carlson, 167 have known. should Wis. at 501. N.W.2d duty in duty to exercise reason Embedded 85. inquire. diligence to Doe v.Archdiocese is the

able 312, 319, 340, 565 N.W.2d Milwaukee, 211 Wis. 2d (1997) ("Plaintiffs may ignore not means of 96, 105 reasonably them, available to but must information good particulars apply their attention to those faith reach.") may their be inferred to be within which (affirming (recognizing "duty inquire") trial courts' to summary judgment plaintiffs' grants claims limitations); Spitler v. were barred statute (1989) Dean, 630, 638, 2d 436 N.W.2d 148 Wis. ("Plaintiffs may eyes not close their to means of infor good reasonably them and must in mation accessible to particulars apply their attention to those which faith may reach."). inferred be their The lead be within ignores duty. opinion this plaintiffs, "in exercise of view, In our diligence discovered," should have . . . Wis.

reasonable 893.55(l)(b), § Dr. Zimmer's role in Sarah Stat. year Hegarty's than before December death more one (when they complaint filed their amended 20, 1999, time) naming Zimmer for the first at as defendant very 19, 1998, is thus the critical latest. December plaintiffs knew well before date. This is what 19, 1998: December

Dr. Zimmer was Hegarty's personal Sarah phy- sician Hegarty's before Sarah admission to Hospital Children's subject that is the of this action;

Before Hegarty's Sarah admission to Children's Hospital that subject action, is the of this Dr. Zimmer attempted to treat Sarah Hegarty for died; ailment from which ultimately she attempted Zimmer's treatment of Sarah He- garty her before admission to Hospi- Children's subject tal that is the of this action was unsuc- cessful, in large wholly— measure —if not because a misdiagnosis Hegarty's Sarah syndrome; ailment as irritable bowel Hegarty's Sarah admission to Hospi- Children's tal that subject is the of this action was on 20, 1996, p.m., March at 4:29 and Dr. Zimmer is listed on admitting form Hegarty's as Sarah primary physician;

Dr. Zimmer arrived at Hospital Children's at 21, 1996; 7:30 a.m. on March p.m., 20, At 8:08 1996, Angela on March Beauchaine, examining the resident Sarah He- garty, completed the Hospital Children's form "History headed Physical and (up- Examination" percasing omitted); a.m.,

At 8:15 on March Dr. Zimmer signed as Physician" the "ATTENDING the "His- tory Physical filled Examination" form out by Dr. previous evening; Beauchaine the "History Physical Examination" form filled out countersigned Dr. Beauchaine and Physician" as the "ATTENDING by Dr. Zimmer is a "RESI- that Dr. Beauchaine clearly indicates Physician"; DENT telephone number is written

Dr. Zimmer's handwrit- to be Dr. Beauchaine's appears what Physical "History and ing top at the of the form; Examination" "Emergency Service Ad- Hospital The Children's omitted) for (uppercasing form mission Orders" 20, 1996, recites: Hegarty dated March Sarah (Noti- Dr. Zimmer [X] "Admit to: patient PRIVATE (all text but the word accepted patient)" fied and pre-printed); "Zimmer" is "Patient Admission In- Hospital The Children's omitted) Sarah (uppercasing form for formation" 20, 1996, bearing a Hegarty dated March following: p.m. 7:47 contains imprint time ZIMMER, also lists Dr. "ATT1 MARY JO" and Hegarty's primary physician; Zimmer as Sarah (up- "Progress Notes" Hospital The Children's omitted) twenty-six lines of a form has percasing 21, 1996, at entry, dated March handwritten a.m., medical by Dr. Zimmer of substantive 8:15 Hegarty's care and pertaining to Sarah matters treatment; "Progress Notes" form Hospital

The Children's by at 12:44 made Dr. Beauchaine with entries 21, 1996, recounts Sarah p.m. on March which condition, Hegarty that Hegarty's records Sarah am." 630 & 700 this "reevaluated between counter- by entries Dr. Beauchaine were These that separate Zimmer. A note on signed by Dr. handwriting signed in Dr. Zimmer's form her, noted, but without the time records that Hegarty Sarah was transferred surgical to a unit;

(cid:127) April In plaintiffs' lawyers sought Hegarty's records,

Sarah only medical not from Hospital, Children's but also from Dr. Zimmer's office;

(cid:127) There is no evidence in the record that

documents that the plaintiffs lawyers sought from Hospital Children's and from Dr. Zimmer's office timely received; were not original complaint alleged 18, 1998, December complaint, including the defendants named in that physician [Sarah Beauchaine, "failed to have a see He- garty], being Emergency after seen in room, from the Hospital time she was admitted to Children's of Wiscon- approximately p.m., sin on March 20, 1996, at 4:15 until approximately origi- a.m., 8:30 on March 1996."The complaint alleged Hegarty nal also that Sarah "coded at p.m. emergently surgery [sic] 1:00 and she was rushed to approximately p.m. at 2:45 on March 21, 1996." The complaint alleged "[t]here approximate was an delay Hegarty's hospital 22-hour from the time of Sarah surgery, admission to the time of when the standard of required by physician care that she be seen a within a period emergency short of time after admission from the recording room." As seen, we have a note Sarah Hegarty's surgery transfer to on 21, 1996, March by handwriting. made Dr. Zimmer in her complaint repeats 87. The 20, 1999, December substantially language quoted pre- the same in the ceding paragraph how the defendants named in that including Zimmer, were complaint, Dr. this time new negligent: injuries described Hegarty sustained the M. That Sarah death as a ultimately in her resulted damages that and failed to defendants who negligence of the result of the in the her, being after seen see physician a licensed have admitted to Room, the time she was Emergency from 20, 1996, at on March Hospital of Wisconsin Children's a.m., 8:15 approximately until p.m., 7:20 approximately subsequently coded Hegarty March 1996. Sarah on emergently a.m. and she was 11:30 approximately at on p.m. 2:45 surgery approximately at rushed to [sic] 22-hour approximate an 1996. There was March emergency Hegarty's time of Sarah delay from the surgery, when the standard the time of admission to a by physician within be seen required care that she emergency admission from the period of time after short room. opinion opines,

Although that there the lead true, it is as disputed dispute, facts none of those facts in are some summary affecting grant genuine issue raise a Simply put, judgment. were medical records that the. lawyers plaintiffs their revealed to available during both Dr. Zimmer what extensive involvement complaint, Zimmer, Dr. did not name which the 1998 complaint, Zimmer, refer- did name which the 1999 very delay." least, "22-hour At the the critical ence as plaintiffs both the records, combined with what these lawyers about Dr. Zimmer's involvement knew and their Hegarty her before and treatment of Sarah in the care Hospital 20, 1996, on March to Children's admission Again, duty inquire: trigger enough to were eyes may infor- "[pjlaintiffs to means of close their not good reasonably and must accessible to them mation particulars apply which to those their attention faith may Spitler, reach." 148 their inferred to be within be 194 precisely 638, 2d 436 at 311. is Wis. at N.W.2d But this approve. opinion what the lead would opinion's ¶ 88. Part of the lead is rationale founded upon Foods, v. Inc., 531, Jandrt Jerome 227 2dWis. 597 (1999), upheld N.W.2d744 which the trial court's deter filing, continuation, mination that but not the of a Id., toxic-tort action was 2d at 562, frivolous. 227 Wis. problems 573, 760, 597 N.W.2d at 764. There are two majority's with the on Jandrt. Jandrt First, reliance was July and, in of 1999, therefore, decided not could have plaintiffs' affected either the to add decision not Dr. complaint, Zimmer the December, to 1998 or whether they diligence discovering exercised reasonable in not role in the Zimmer's care and treatment of Sarah He- garty prior to 19, Groom, December 1998. See 179 Wis. (affidavit n.6, 2d at 251-252 at 507 N.W.2d 125 n.6 had bearing plaintiff reasonably on no what should have filed). known before affidavit was significant, recog Second and more Jandrt approaching nized an that dead statute-of-limitations line affects whether the commencement action of an Jandrt, reasonable. 227 Wis. 2d at 597 N.W.2dat ("[T]he attorney an amount of time to has investi gate objec shapes is one claim consideration that determining attorney's for tive standard whether an reasonable."). inquiry looming expiration Here, the statute limitations March of when plaintiffs lawyers by added all that the their knew filing prudent that have an time would made action the § 893.55(l)(b), paraphrase or, to Wis. Stat. reason ably diligent, thing plaintiffs' Indeed, to do. even namely, they rationale, own needed take Dr. .to deposition they Zimmer's before could ascertain the true Hegarty's extent her care, involvement Sarah plaintiffs easily they have could ascertained all needed to by the dead- 21,1999, know March statute-of-limitations complaint they in December filed their initial line. Once they light submit, all have, and, of could we Hegarty's fingerprints Zimmer's all over Sarah care Dr. deposi- taken Dr. Zimmer's treatment, have, and should deadline. See 21,1999, tion well in-advance of March 804.05(1) ("After of the commencement Wis. Stat. Rule any any testimony party make take the action... examination.") (em- by upon deposition person ... oral added). they hardly prudence; phasis it That did not is diligence." hardly affirm the trial court's "reasonable We against plaintiffs' Zimmer of the claims as dismissal being by barred the statute of limitations. Respondeat superior.

2. majority's analysis agree I with the syn- "employee" that and "servant" are not conclusion onymous respondeat superior purposes. for Unlike the evidentiary majority, agree any I not however, do that plaintiffs submitted, material that the have or that the majority genuine recounts, raises a issue of material Dr. Beauchaine was a "servant" of fact as to whether College Hospitals Medical of Wisconsin Affiliated Hospital. her work at Children's All connection with evidentiary documentation and other extensive Hospitals material in record is that shows Affiliated 1) clearing rights house, a with the additional to: 2) policies others, that would be enforced set participation supervising if terminate resident's those reported resident information that made termina- Nothing majority appropriate. tion recounts shows anything genuine more—there are no issues of material Accordingly, respectfully fact that need to he tried. I majority's opinion. from Section 2 E. dissent of the lists a number notes and their times: 1 [T]oday, [approximately] [no] .... diarrhea. Started - ago. Lips dry. hr. To room 3 to examine. [Doctor] - started, cold, [complained being of] 1735 LR bolus given... blankets . - better, feeling any feeling [Patient] 1750 states not worse.... - x-ray x-ray Admitting ... called. done[.] 1850 To have added) (emphasis - given.... Awaiting 1945 Fleets enema results.. . . - Report [nurse]... . @ ADM. CALLED 1940 conclusively Nothing Zim- this note states that Dr. Nursing only mer was called. The Note states that "Admitting" Nothing was called. indicates that "Admit- ting" doctor, fact, In is a let alone Dr. Zimmer. "Admit- ting" likely admitting hospital. more desk of the is "History Physical document, Ex- second four-page form, document that amination" has

Case Details

Case Name: Estate of Hegarty Ex Rel. Hegarty v. Beauchaine

Court Name: Court of Appeals of Wisconsin

Date Published: Oct 30, 2001

Citation: 638 N.W.2d 355

Docket Number: 00-2144

Court Abbreviation: Wis. Ct. App.