Wisconsin Court: Witnesses Cannot Seek Medical Damages

July 13, 2009

The Wisconsin Supreme Court on July 10 tossed out a $200,000 award to a father who watched one of his twin sons die during birth in 1998.

In a decision praised by doctors but criticized by trial lawyers, the court ruled 5-2 that Wisconsin’s medical malpractice law does not allow bystanders to seek damages for emotional distress.

A judge in 2003 awarded Gregory Phelps of Pewaukee the damages as part of a $990,000 award to his family for wrongful death and medical malpractice.

Phelps had arrived at St. Joseph’s Hospital in Milwaukee after his wife, who had been identified as a high-risk patient. She was in intense pain and had not been treated properly by an unlicensed, first-year medical resident. Phelps helped his wife get to a commode, where she reached down and felt a baby’s toes extending from her.

He rushed to a nurses’ desk, where he found a doctor to deliver the baby, Adam. But attempts to resuscitate Adam failed, and the baby was pronounced dead as a result of asphyxia. The other twin, Kyle, was delivered and survived.

Writing for the majority, Justice Patience Roggensack said the medical resident, who was in a Medical College of Wisconsin training program, was acting as an employee of the hospital and therefore covered by the malpractice law.

The law spells out what claims can be made against health care providers and their employees, but makes no mention of allowing emotional distress claims by bystanders, she said.

In a dissent joined by Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley said Phelps had satisfied every element of a claim for emotional distress.

“Phelps witnessed the spontaneous delivery of Adam,” she wrote. “He witnessed the injuries and death of his son. I conclude that Phelps had a firsthand observation of the traumatic, injury-producing event.”

The case became a flashpoint in Abrahamson’s re-election campaign in February after The Associated Press reported she collected a total of $11,500 in donations from three lawyers representing the Phelpses.

Her challenger, Judge Randy Koschnick, said it was unethical for her to take the money without recusing herself. Abrahamson brushed that off by saying she had raised so much money – nearly $1.4 million in total – she was beholden to no one donor.

Two groups representing doctors, the American Medical Association and the Wisconsin Medical Society, had urged the justices to throw out the damages. Allowing bystanders to bring such claims would unfairly expand the liability of doctors, they argued in a friend-of-the-court brief.

“This decision is one that we think will certainly make a difference in terms of keeping Wisconsin a stable place in which to practice medicine and deliver care,” said Ruth Heitz, the general counsel for the medical society.

Attorney Michael Van Sicklen, who represented the medical resident and his insurance company, said the decision “brings to a close a long legal saga.”

Phelps had already been compensated with a $500,000 wrongful death award and watching the situation unfold did not entitle him to more, Van Sicklen said.

“It brings in our view some rationality and balance to the situation of fairly compensating family members,” he said.

But Martha Heidt, a River Falls lawyer who filed a friend-of-the-court brief on behalf of Wisconsin trial lawyers, said the decision eliminates “an entire class of claims in the context of medical malpractice.” Her group had argued that bystander claims should be treated the same in medical malpractice as in other cases, such as car accidents.

“What we’re really looking at is an extraordinary circumstance that should be compensated and it won’t be,” she said. “No matter how bad it would be, no matter how extraordinary and horrific it would be, that loved one who views it is not going to have a claim.”

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