*1 Plaintiffs-Respondents-Petitioners, Lewis, Norvin Lewis and Delores v
. Jay Physicians Company Wisconsin, Insurance Compensation Seldera, and Wisconsin Patients M.D. Defendants-Appellants, Fund, Plan, Dean Health Center,
Lakeland Medical Shalala, Inc. and Donna Defendants.
Supreme Court argument January Oral 2001. Decided June No. 99-0001. 13, 2001. 60WI
(Also 484.) reported in 627 N.W.2d *3 plaintiffs-respondents-petitioners there For by Timothy Aiken, C. Gallanis and a J. James was brief argument Scoptur, Milwaukee, S.C., and oral Aiken & by Timothy Aiken. J. by defendants-appellants a there was brief
For the Christopher Riordan, Morris Belke and P. Marianne Carlson, Steeves, C., Crivello, & S. Milwau- Mentkowski by Christopher argument P. Riordan. kee, oral WILCOX, in this case P. J. issue JON vicariously surgeon liable for the a can be is whether negligence hospital who failed to count of two nurses accurately surgical procedure. sponges used in a plaintiff presented Because the has not a viable doc- imposing surgeon trine for on the existing under Wisconsin law and because we decline adopt "captain ship" theory Wisconsin, surgeon we conclude that cannot held vicari- be ously hospital liable for the of the two nurses. plaintiff case, 2. The in this Norvin Lewis
(Lewis), Jay defendant, Seldera, asserted that the M.D.
(Seldera), vicariously failure of was liable for the two hospital employed by Lakeland Medical Center nurses, (Lakeland) accurately Elkhorn, Wisconsin, to count sponges gallbladder the number of used in Lewis' sur- gery. sponge a count, As result oftheir inaccurate stipulated left Lewis' abdomen. Lewis to the fact negligent. that Seldera was not The Circuit Court for County, Judge, Goulee, D. Milwaukee Michael $150,000, $50,000 off from his awarded Lewis set appeals settlement with Lakeland. The court of following reversed the circuit court's decision. For the ruling. appeals' reasons, affirm we now the court of l-H parties stipulated ¶ 3. The have to the relevant gallbladder Lakeland facts. Seldera removed Lewis' at During surgery, 8, 1993. Seldera on November packed gallbladder laparotomy1 pads off the with Vickery (Vickery) (sponges). Nurses Patricia and Ellen *4 charge counting Chapman (Chapman) the were procedures, sponges. nurses, Under Lakeland's the not counting responsible sponges and Seldera, were for the "[ijncision Medi Laparotomy is an in the loin." Stedman's (25th 1990). Dictionary Laparotomy pads are ed. cal pack off an in the loin or abdomen. sponges used to area Chap- counting sponges. overseeing Indeed, assigned operation, "circulating man, nurse" independent duty administra- an delineated had sponges. count the See Wis. Admin. Code tive code to " (the 124.13(7) 2000) (Oct., 'circulating § nurse'" HFS during opera- registered present an is "a nurse who is surgical procedure. .who, . .is tion. . before completed,. sponge, and . .ensures that needle according hospi- done to instrument counts have been Vickery policy"). Chapman employed tal Both and were According the medical Lakeland, not Seldera. surgery, Vickery Chapman and records from the sponges used four occasions counted the number of on they thought sponges and that the correct number of had been collected at the end. began problems However, and 4. Lewis have operated again January During on
Seldera surgery, sponge this second a retained was discovered. sponge removed, He
After this Lewis recovered. was brought against then suit Lakeland and Seldera. agreed trial, 5. Prior to Lakeland that it was
responsible employees, Vickery for the actions itsof county-owned Chapman. and Because Lakeland was a surgery, hospital time at the its Vickery Chapman limited to 893.80(3) (1993-94).2 §
$50,000. See Wis. Stat. After settling Lakeland for the maximum amount with 893.80(3), pursued § under allowed against Lewis this case stipula- Seldera. In consideration for Seldera's dropped except facts, tion to the all above Lewis claims allegation vicariously for the that Seldera could be held Vickery Chapman's negligence. par- liable for Both subsequent All references to the Wisconsin Statutes are to the 1993-94 version unless otherwise indicated. *5 summary judgment on the issue of
ties moved for could so held liable. Seldera be whether
¶ decision, The circuit court issued an oral 6. [Seldera] finding law, is, fact, in "as a matter of that parties responsible and the actions of the that liable for working operating him in the room with were supervision." court maintained under his The circuit captain ship. "doctor That the that the everything." appealed. responsible Seldera doctor is appeals ¶ The court of reversed the circuit Physicians ruling. Wisconsin, Ins. court's Lewis v. App 198, 95, 14, 2000 612 N.W.2d WI writing rejected Judge Fine, court, for the 389. argument negli that Seldera could be liable for the distinguishing gence our in of the nurses decision Smirl, 645, 2d 131 314 Fehrman v. Wis. N.W.2d (Fehrman IP )3 (1964) , which held that two doctors single injury. Judge for a Fine could be held liable "[n]o appellate further observed that court Wiscon 'captain ship' doctrine to sin has used the malpractice case, in medical and the doctrine generally lapsed has into disuse elsewhere with App passage ¶ 95, 13. There Lewis, of time." 2000 WI appeals apply fore, declined to the court present doctrine to the case. Id. subsequently appealed and this court 8. Lewis
accepted petition his for review. cases: separate action reached this court in two 3The same (Fehr (1963) Smirl, 2d Fehrman v. 20 Wis. N.W.2d I) Smirl, 645, 131 2d N.W.2d 314 man and Fehrman v. Wis.
(1964) (Fehrman IT).Although underlying facts of the action decision, I Lewis relies on our were set forth our Fehrman liability in II. Fehrman discussion
I—II—I *6 grant summary ¶ 9. This case is before us on a judgment. parties stipulated Because the have to the appeal only question facts, law, this raises a which Clauder, 674, we review de novo. L.L.N. (1997).
682, 434 563 N.W.2d At outset, 10. the we note that Lewis is not Vickery contending Chapman employed that and were Vickery Chapman Seldera or that were "bor- contending rowed servants."4 Nor is Lewis responsible counting sponges. Seldera for the Instead, this case turns on whether Seldera is vicari- ously negligence Vickery Chapman liable for the holding adopt under our in Fehrman II or whether we "captain ship" the doctrine. principle It law, is a basic as com- well as typically only sense,
mon that one is his her liable for or acts, not acts Nevertheless, own of others.5 the law impose in certain circumstances will "vicarious liabil- ity" non-negligent party. liability on a Vicarious
4We declined to discard the "borrowed servant
rule" in
Sergio,
liability approach"
in DePratt v.
favor of the "dual
(1981).
141, 147,
2dWis.
Id. (such "[liability supervisory party an that a as employer) for the actionable conduct of a bears (such employee) as an subordinate or associate because relationship parties." Black's between two (7th 1999). Dictionary tension, ed. There is a Law principle respon- then, of individual between basic sibility under on the one hand and the law liability party imposition of vicarious on an innocent a tortfeasor's acts on the other hand. Because vica- for liability exception rious principle is a severe to the basic only responsible his her
that one is or own proceed acts, with caution when asked to we doing only party, on an innocent so accordance with well-settled law. *7 (cid:127) imposing doctrine for vica 12. One well-settled liability respondeat superior,
rious non-negligent is which allows
employer an to be held liable for City employee's Milwaukee, ("Under actions. See Shannon of (1980) the 364, 370, 289 2d N.W.2d 564 94 Wis. superior employer respondeat an can be
doctrine of negligent vicariously acts of his liable for the held acting scope they employees the of are within while Respondeat superior perhaps employment."). is their liability is in which vicarious the most familiar context imposed. right employer's or due to the control
It arises employee; of this control or because of control over employee negligence right control, the of employer imputed in certain circumstances. City 40, 46, 2d Franklin, 83 Wis.
Arsand v. (1994). (1978); Indeed, Wis JI —Civil N.W.2d 579 hospital present that it could case, admitted in the negligence vicariously the two liable for be held superior. respondeat the doctrine nurses under argue that Seldera is vicari- Lewis, however, does not ously negligence Vickery Chapman for the liable respondeat superior; under the instead, doctrine he vicariously contends that Seldera is under liable our holding alternatively, "cap- II Fehrman or under the ship" tain of the doctrine. We examine each of his imposing liability theories for on Seldera turn. In Smirl, 1, 6-7, 121 Fehrman v. (1963) (.Fehrman I), plaintiffs surgeon,
N.W.2d 255 surgeon, Smirl, another McDonnell, asked to assist treating with the defendant after Smirl had removed prostate gland. plaintiff the defendant's injured during the course of this treatment and filed an against During jury's action Smirl. Id. at 1-9. delib question regarding erations, it raised a Smirl's responsibility responsibility. relative to McDonnell's II, Fehrman 2dWis. at 654. The circuit court responded responsible any that Smirl "would be for upon part failure of Dr. McDonnell to exercise such objected ground care and skill" and Smirl on the may response jury this have led the
himon committed McDonnell. Id. at writing majority Gordon, 654-55. Justice for the of this agreeing court, issue, but not with it on this stated the majority's holding as such: "under the circumstances of charge patient case, this Dr. Smirl either was in acting jointly or was with Dr. McDonnell." Id. at 656. upheld
Therefore, this court the circuit court's *8 response jury's question. Id. Lewis characterizes holding imposing our in Fehrman II as vicarious liabil ity on a doctor whenever the doctor continues to actively participate care for and in the treatment of the patient. reading His is too broad. begin analysis
¶ 14. We our of II Fehrman recognizing holding this court's on the issue of grounded particular in the facts vicarious Importantly, presented. did not assert a new Id. we liability. imposing Instead, for we doctrine jury response question merely approved to a of a respon- during regarding its deliberation Smirl's raised responsibility. sibility to McDonnell's Id. at relative II decline to Fehrman to hold that 653-54. We stretch refusal to overturn a circuit court's this court's jury question response created a new doctrine liability. imposing vicarious Moreover, in Fehrman II we allowed the response part it to stand in because was
circuit court's negligence plain- was the cause of the unclear whose objecting injury.6 the fact noted, As Smirl was "to tiffs responsi- he held that under the court's instruction was may chargeable have been ble for the which added). (emphasis Therefore, as Dr. McDonnell." Id. appeals commented, Fehrman II more the court of liability" closely the "alternative case resembles (1948). Tice, 33 Cal.2d 199 P.2d Summers v. simultaneously negligently
There, hunters two plaintiff, unclear in the direction of the but it was shot injured plaintiff. Id. at 2. Because this which bullet extraordinary impossible pattern made it for the fact ipsa loquitur, of res As this court observed its discussion II, negligence." Fehrman proof direct medical "[t]here was count, the defendant was On that we held that Wis. 2d at 651. loquitur expert an ipsa an instruction on res where
entitled to not have my opinion 'it that this result would testified that" is them, both, McDonnell], or or either [Smirl occurred if diligence that exercising proper and care and had skill been operation, performance them in the of this expected Therefore, jury could have Id. suprapubic prostatectomy.'" care, duty only one their but found that doctors breached both injury. plaintiffs doctor caused
plaintiff identify injury, to which hunter caused his court determined that he could hold both defendants liability" Thus, liable. Id. at 4-5. the "alternative the- ory born. liability" adopting
¶ 16. Without
the "alternative
theory,
holding
in
we discussed the
of Summers Collins
(1984)
Lilly Co.,
v. Eli
2dWis.
Fehrman
with the res
loquitur instruction,
indicates that
Smirl
both
may
respective
McDonnell
have violated their
duties of
only
plaintiff,
may
care
but
one doctor's actions
injury.
have caused his
II does not *10 theory. agement" support only II fail to does Fehrman 17. Not theory, distinguishable from the it is new
Lewis' duty a case, Seldera did not breach case. In this instant stipulated not that Seldera was instead, he Lewis; to negligent. contrast, Smirl and McDonnell In both may to the their duties II have breached Fehrman Although plaintiff. there was in this case Id. at 656. duty duty
clearly Lewis, that was to owed breach by Vickery Chapman, the nurses and breached by by hospital. employed defined Their duties were duty, by Chapman's hospital policy, as not Seldera. by
circulating the administra- nurse, also defined 124.13(7) (Oct., § Admin. Code HFS tive code. See Wis.
2000). II Smirl to Fehrman where In further contrast surgery, to assist with McDonnell selected by Lakeland, not Seldera. here selected nurses were pre- distinguishable from the therefore, is II, Fehrman upon to vicarious cannot be relied sent case and theory. any liability on Seldera under support for his "con- however, seeks Lewis, 18. imposing theory
tinuing management" active by cited in the two cases on Seldera Komasinski, II, Morrill court in Fehrman this (1950), v. Har- and Heimlich 417, N.W.2d Wis. (1949). vey, Morrill, In 39 N.W.2d 255 Wis. three doctors issue of whether confronted the
this court failing severally jointly liable for held could be properly. diagnose 2d at 256 Wis. arm a broken being objected family Komasinski, doctor, Dr. experienced jointly doctor, Dr. a more liable with held diagnosis and Bump, assist with the he called to whom plaintiffs Id. We held arm. broken treatment of findings amply supports the "evidence jury." Id. The evidence doctors, indicated that three Dr. Bump, Wright,
Komasinski, Dr. and a Dr. who inwas charge taking rays, rays the X "examined the X together upon and decided the treatment to be admin- istered." Id. at 419. The three doctors then "concluded placed right angles that the arm should be at body pointing straight upward. with the forearm ..." diagnosis Id. It was this and treatment all three plaintiffs injury. doctors that caused the Id. at 425. jointly severally
Therefore, all three doctors were liable. Id. at 426. distinguishes
¶ 19. The central fact that Morrill jury negli- from the instant case is that there the found gence part on the of all three doctors who acted *11 stipulated concert whereas here Lewis has that negligent. imposition Seldera was not There was no of liability Accordingly, vicarious in Morrill. Morrill does support theory by imposing not advanced Lewis of liability non-negligent vicarious when the doctor "con- participation" patient's tinues active in the case. provides
¶ Likewise, 20. Heimlich no assistance Harvey, objected There, Lewis. the defendant, Dr. imposition liability injury by of when the suffered patient may through his have been inflicted the course by employee, of treatment Baird, his Dr. rather than Noting him. Heimlich, 2dWis. 471. that 255 Dr. Har vey salary "testified that Dr. Baird worked for him for a plus rejected Harvey's argument commission," we Dr.
by stating appears jury that "it to us as well as to the [Dr. Harvey] completely acknowledged that has very good acts of own, Dr. Baird to be his which is a recognition responsibility under the familiar doc respondeat superior." trine of Id. at Thus, 474-75.
Heimlich was resolved under the well-settled law of
660 superior respondeat involve the creation of and did not liability.8 imposition of vicarious doctrine for the a new presented has not a via- result, As a Lewis 21. liability imposing on Seldera vicarious doctrine for ble existing law.9 under Wisconsin
I—II—i HH Alternatively, court to fol- Lewis asks this 22. adopt "captain of the lead and low the circuit court's liability ship" on vicarious doctrine order to superior, "captain respondeat Similar to Seldera.10 8 have led the presented that the evidence could We observe Dr. Harvey jointly liable with jury to conclude that Dr. injection with another he followed Dr. Baird's
Baird because 471, Harvey, Heimlich v. 255 Wis. injection at the next visit. (1949). testimony
472, expert indicated 39 394 N.W.2d injury. Id. at injections were the cause of the defendant's n.4, Sturm, Bailey Lewis cites (1973), interpretations his of Fehr approving as N.W.2d 653 417, 41 Komansinski, II, 2d N.W.2d man Morrill v. Wis. collecting of
(1950), much into this and Heimlich. He reads too theory imposing cases, not create a new which does Furthermore, parentheti- in brief party. on an innocent joint liability II as cals, Fehrman and Morrill we characterized superior. Bailey 59 respondeat cases and Heimlich as a case Thus, cursory description these three our 2d at 93 n.4. Wis. in-depth discussion above. Bailey in accord with our
cases in *12 10 pos breezily suggests that we avoid concurrence analysis aground through danger running sible liability. imposing vicarious ship" theory for "captain of the jurisdictions agree that other at 29-31. We Concurrence ¶¶ liability, theory imposing vicarious this for have wrestled with due to the agency law foundation lacks a solid which now Majority op. at immunity See doctrine. demise of the charitable by "captain presented of the difficulties 22-24. Because ¶¶ ship" theory party is another that a to allows liability, recog- invoke vicarious but it has never been appeals and, nized in Wisconsin as the court of acknowledged, juris- has fallen into disfavor other App Lewis, 95, dictions.11 2000 WI 13. Because ship", agree easier, we also that it would be much as the ignore theory concurrence propose, seems to to this outdated engage and in an theory unencumbered search for another to liability surgeons. vicarious on Concurrence at However, court, a arguments as we are confined to issues and presented necessary in the Accordingly, case before us. it is to "captain ship" premised address of the because the circuit court liability argued it Seldera's on and Lewis it before us as an theory imposing liability alternative on Seldera. agree hypotheti-
We further
with the concurrence that there are
right
liability
might
cals—with
facts —where vicarious
perhaps
imposed through
theory
agency
be
a
law such as
respondeat superior or borrowed servant. See Concurrence at
However,
present
33-37.
hypotheti-
¶¶
case is not such a
right
cal—with the
might
facts —where vicarious
perhaps
imposed
through theory
be
on an individual
agency
respondeat superior
law such as
or borrowed servant. This court
only decides
disputes arising
cases with real
from
that
events
actually
place.
took
11Pennsylvania,
"captain
which first raised the
ship"
of the
(Pa.
Williams,
1949),
doctrine in McConnell v.
N.W.2d statute on other *13 of the which enabled to "captain ship," plaintiffs in the face of a "charitable immu- hospital's recover an doctrine that fails to reflect the nity," antiquated is facilities, of as modern health care emergence hospitals we decline to it now. adopt 23. The of the doctrine is an out- "captain ship" of the defunct "charitable
growth largely immunity" doctrine, to most granted immunity hospitals which to 1940.12 See v. Doctors prior Kojis Hosp.,
grounds) (limiting "captain ship" of the to cases where the doc actions); in tor has "direct control" over the nurses Ohio Baird v. (Ohio 1982)
Sickler, 593, 595 (refusing "breathe[ ] 433 N.E.2d doctrine"); Oregon May in prostrate new life into that now v. (Or. 1972)
Broun, 776, (acknowledging 492 P.2d 780-81 that changes operating in impossible the room have made it for the surgeon directly personnel and supervise all therefore con cluding "captain longer ship" that of the is no viable with the immunity); in demise of charitable Tennessee Parker v. Vander (Tenn. 1988) Univ., 412, (asserting App. bilt 767 S.W.2d Ct. ship" confusing and "captain the term of the unneces Inc., 582,
sary); Sparger Worley Hosp., Texas v. S.W.2d (Tex. 1977) (disapproving "captain ship" of as a "false agency"); Virginia Raleigh special rule of and West Thomas (W. 1987) 222, (observing Hosp., Gen. 358 S.E.2d 224-25 Va. considering "majority cap
that the of states are now which ship rejecting rejecting it" and tain of the doctrine are Price, J.D., Virginia). Stephen doctrine for West See also H. Sinking "Captain Ship": Reexamining the Vicarious of Negligence Assisting
Liability Operating Surgeon an (1989) Personnel, Legal Hospital 10 J. Med. 331-47 ship" (reviewing "captain the abandonment of the doc light hospital as a health trine in of a more modern view of delivery medi provider rather than a mere "conduit for care services"). cal Weiler, Enterprise Medi Kenneth S. Abraham & Paul C. Care Liability and the Evolution the American Health
cal
(1961) (discarding the "chari
367, 372,
observed, modern health care facilities are better against negligence position protect patients from employees against corresponding their liability.14 and insure the (acknowledging
See id. that modern charita- hospitals larger size, endowed, "are in better ble now that and on a more-sound economic basis" and covering "[insurance their available prudent management protec- dictate that such would years, purchased"). hospitals tion be Over the last 60 increasingly for the have become vital facilities deliv- ery recognized of health care. this shift We Port, 24, 38-39, Kashishian v. 481 N.W.2d System, 381,385 (1994)(explainingthe L. 108 Harv. Rev. advent demise). immunity heralding doctrine and its charitable (2d al., Health Law 379 Barry R. et
13 See Furrow ed. 2000) (recounting reasoning supporting that charitable immunity single large judgment destroy was that "a could a hospital" "[liability generally and that insurance was not avail hospital's exposure"). able to cover a risk Sinking "Captain Price, J.D., Stephen H. See Ship": Reexamining Liability Operating the Vicarious anof Surgeon Negligence Assisting Personnel, Hospital 10 J. (1989). Legal Med. 343-48 (1992), where we confronted the issue of whether vicariously hospital could held liable under the doc- be apparent authority allegedly negligent trine of for the working hospital independent acts of a doctor at a as an "[mjodern doing, In so that contractor. we observed hospitals spent marketing have billions of dollars nurturing image consuming themselves, with the public they are full-care modern health facilities." hospi- facilities, Id. at 38. As full-care modern health " longer physicians tals are no 'mere structures where (cita- patients.'" treated cared for their Id. at omitted). acknowledged important tions hospitals We role system
have our health care and their advent as full-care modern health care facilities when *15 stated: we business, essence,
In hospitals big have become competing with each other health care dollars. for evolved, hospital As the role of the modern has and image hospital as the of the modern has evolved (much self-induced), of it has the so too law with liability and respect hospital's responsibility successfully towards it not Hospitals those beckons. nurses,
only and employ physicians, surgeons, workers, they appoint physi- other health care also surgeons hospital cians and to their staffs as independent contractors. recognize development
Id. at 38-39. the of the mod- We delivery facility hospital the ern as a health care and responsibilities entailed. attendant this transition has vitality ship" Simply put, "captain has lost its country plaintiffs sus- across the as have been able to for the hospitals full-care modern against tain actions employees.15 of their negligence to resurrect the we decline Accordingly, create a the doctrine or ship"
anachronistic "captain liability theory to enable Lewis new Lewis, the current law on Seldera. under action Lake- Wisconsin, against had a viable cause of Lewis consequence land. are mindful of the harsh We Lakeland, neg- at the time of the must endure because and count, a county hospital was ligent sponge $50,000, at which was capped therefore its $150,000. See Wis. damages to cover his insufficient 893.80(3). it troubling deficiency, this is a Stat. While § decision, may of a which legislative policy is result These considerations.16 supported by be broader "captain ship" doctrine is at We also note that corresponding of an individual doc odds with the diminishment operating caused tor's control of the modern room responsibility. See Ste increasing specialization and division of Price, J.D., Sinking "Captain Ship": H. phen Liability Operating Surgeon Reexamining the Vicarious anof Personnel, Legal Negligence Assisting Hospital 10 J. (1989) (discussing operating surgeon's Med. 340-41 to the increase in operating loss of control over the room due increasing hospitals providing essential medical services personnel and sophistication specialization of both medical *16 care). equipment, improves patient which 16 377, 356, City Brookfield, In Sambs v. 293 (1980), legislative 504 we commented on the need for N.W.2d liability gov balancing caps municipal in the context of on for ernments. There we wrote: risks, legislature's It the extent is the function to evaluate injury, exposure liability, compensate the need to citizens for availability insurance, of and cost of and the financial condition governmental legislature's units. It is the function to struc-
666 providing broader considerations include full-care modern health care facilities to service citizens who might facility.17 not otherwise have access to such a If we circumvented this statute in order to liabil- ity discourage Seldera, on we would doctors from working government-owned hospitals they at because hospital's assisting incur the would employees, they selecting. whom had no hand in To nondelegable liability utilizing attach this to doctors government-owned health care facilities would create a disturbing dichotomy government hospitals between private hospitals, and which do not attach nondel- such egable liability utilizing to doctors their facilities.18 Thereby practice only we would induce doctors to at private hospitals, which are liable for the full amount statutory provisions, protect public
ture which will interest in reimbursing maintaining government the victim and in services and which will be-fair and reasonable to the victim and at the same regarding time placed will be realistic the financial burden to be on taxpayers. Id. Danaher, M.D., See John Health Care Constitu Perform: Necessary Change, Pol'y 3 Stan. L. & Rev. encies (1991) (recognizing that the cost of health care for the 37 million predominantly Americans who are uninsured is borne county hospitals private hospitals uncompensated or as care or charity). judicial take currently We notice of the fact that there are general special hospitals in Wisconsin. General and Special Hospitals Directory, Department Family Health and (2001). Excluding special psychiatric hospitals, Services cur rently only government-owned there are three facilities present Hospital Lafayette at Wisconsin time: Memorial 12), County County 26), Hospital {id. {id. at Rusk Memorial at University Authority Hospital of Wisconsin and Clinic {id. 29). voluntary nonprofit corporation at Lakeland is now a at {id.
14). *17 may upon employee damages negligent a inflict
of patient. government- patients can hold
¶ course, Of 26. negligence of liable for the care facilities owned health superior, respondeat employees but, as under their liability capped legislature at noted, has principles per In accordance with $50,000 occurrence. legislature judicial to restraint, we leave it to Doering adjustments. any necessary policy See
make Group, 118, 132, N.W.2d 432 2d 193 Wis. WEA Ins. (1995) drawing (acknowledging creat "that lines and legislative policy ing tasks"). public are to establish distinctions recognizing the unfortunate Therefore, while cognizant of also remain case, in this we must result weighs balancing, legislative the costs which having against the benefits individual unfairness government-owned facilities where doctors health care segments willing provide health care to all are population. result, it would short As a we believe be judicial lawmaking engage sighted for this court on could so that Lewis beyond statutory maximum. and recover Seldera
IV conclusion, hold that Seldera cannot In we Vickery vicariously held liable for be "captain Chapman II or under either Fehrman ship." appeals By of the court of the Court.—The decision is affirmed. CHIEF ABRAHAMSON, S. 28. SHIRLEY (concurring). agree I with the mandate
JUSTICE *18 summary judgment because this case has come to us on stipulated separately based on facts. I write I because might mistakenly am concerned that rules of law be language majority
drawn from the broad in the opinion.
¶ majority opin- First, 29. it is a mistake for the rely "captain ship" metaphor. ion to on the of the This phrase meanings beyond has taken on various the spawned cases that it. majority opinion
¶ "captain 30. The defines the of ship" merely theory the ity doctrine as a ofvicarious liabil- respondeat superior."1 is "similar to majority opinion explain precisely does not what the- ory rejecting rejects "captain it is when it a ship" doctrine. "Captain ship" analyzed
¶ 31. cases can be applying agency concepts as traditional of the sur- geon's supervision forget and control.2 Let's the picturesque language, case, look at the facts of each apply principles agency traditional of tort and law.3
¶ Second, 32. it is mistake to conclude from the surgeon decision that a can never be held liable for the negligence hospital of a nurse. This issue is not before 1 majority op. See at 22.
2See, (Md. e.g., 524, Gupta, Franklin v. A.2d Ct. 1990) App. (concluding analysis that a "captain careful ship" generally cases applied reveals that courts have tradi agency concepts). tional Sparger Worley Hosp., Inc.,
3 See 547 S.W.2d (Tex. 1977) (quoting writing Justice phrase Frankfurter that "A begins literary expression; felicity life as a lazy its leads to its repetition; repetition formula, legal soon establishes it as a undiscriminatingly express used to different and sometimes ideas."). contradictory carefully majority opinion what states court. The contending. particular, it states In not is and is
Lewis relying servants" on "borrowed that Lewis is not majority opinion's that "the conclusion doctrine.4 The surgeon negli- vicariously for the liable applies cannot be held only hospital gence nurses" of the two presented stipulated in this narrow issues facts and case.5 vicariously surgeon for the can liable A be hospital if nurses are under nurses hospi- supervision. surgeon's Whether control and surgeon's control and under
tal nurses are ordinarily question supervision fact for be a would *19 stipulation the sur- is silent about The the fact-finder. geon's supervision hospital of the nurses and control present would deter- The facts of each case the case. surgeon supervision or has exercised the
mine whether hospital the nurses. control over the
¶ to conclude from Third, it is a mistake 34. hospital procedure the administra- a or decision that liability. negligence or the law of tive code controls rely majority opinion appears the ¶ to on The 35. responsibility hospital procedure that the nurses have overseeing laparotomy counting the count of and pads code that the circulat- and on the administrative ing have done the counts been nurse ensures
4 majority op. at
See
10.
employ
surgeon
appeals
that the
did not
The court of
concluded
negligent.
hospital
those
nurses who were
as borrowed servants
hospital
majority opinion
If the
makes no similar declaration.
surgeon,
surgeon
employees"
of the
nurses were "borrowed
Corwyn
vicariously
negligence. See Borneman v.
hable for their
(1998) (setting
Ltd.,
Transp.,
according procedure surgeon to to absolve the liability. hospital procedure Reference from to the may misleading. administrative code be Regardless hospital procedure
¶ 36. of what or says hospital code about a administrative nurse's obligations, surgeon's supervision failure exercise hospital might neg- and control over nurses constitute ligence, negligence might and the nurses' then be imputed surgeon. certain circumstances, Under might surgeon a fact-finder that a conclude should supervision. Hospital have, exercise, or did or control might procedure administrative code consti- customary practice, customary tute medical but practice necessarily medical does not constitute rea- malpractice.6 in an sonable due care action for medical argu- Furthermore, an issue oral raised at duty put ment was whether and remove the nondelegable pads duty surgeon. was a of the The con- cept nondelegable duty surgeon's duty is that the delegated surgeon due care cannot be and that the is hospital liable for the nurse even though surgeon everything has done that could be reasonably required surgeon. duty If the is non- delegable, person nondelegable duty with the
6The care physician standard reasonable for a is that *20 degree care, skill, judgment specialists that reasonable having the same or would exercise in similar circumstances due regard plaintiff at for the state medical science the time the A was treated. doctor who fails to conform to this standard is (1998). negligent. See Wis JI —Civil 1023 Evidence of the usual customary physicians conduct of other under similar cir ordinarily cumstances is relevant and admissible as an Osterloh, See indication what reasonable care. Nowatske (1996). 419, 438, N.W.2d vicariously parties not or have briefed liable.7 liability, majority opinion argued theory and the this directly address this issue. does not forth, 38. For the reasons set I write
separately. I am authorized to state that Justice ANN joins opinion. BRADLEY this
WALSH Keeton, al., Page on et Prosser and Keeton the Law 7 W. (5th 1984). ed. Torts at 511-12 §