WisBar News: Supreme court accepts review of eight new cases, including medical malpractice suit:

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    April 4, 2011 – The Wisconsin Supreme Court has granted review in eight new cases, including a medical malpractice suit in which a patient is arguing the doctor did not provide enough information to make an informed decision about treatment.

    Supreme court accepts review of eight new 
cases, including medical malpractice suit Thomas Jandre suffered stroke-like symptoms in 2003, and the emergency room doctor diagnosed him with a mild form of bell’s palsy, which is not life threatening. A physical exam did not reveal signs of ischemic stroke, but the doctor did not perform a carotid ultrasound to rule it out. Eleven days later, Jandre suffered a massive stroke.

    Two physicians testified that a carotid ultrasound would have revealed blockage of an artery that could have been treated with immediate surgery. Jandre alleged the doctor failed to disclose information necessary for him to make an informed decision.

    In Jandre v. Physicians Insurance Co., 2010 WI App 136 (Sept. 28, 2010), the appeals court upheld a $1.85 million jury award in Jandre’s favor.

    The court concluded that a physician who does not inform a patient about a test that would rule out a possible condition, but is not negligent in diagnosing the patient, still violates the Wisconsin law that requires a doctor to help a patient make informed decisions.

    The Wisconsin Supreme Court is asked to clarify the application of Wis. Stat. section 448.30, which states that “[a]ny physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments” based on existing case law and policy considerations.

    The supreme court also accepted review in seven other cases, briefly summarized below. Full case descriptions can be found on the Wisconsin Court System’s website.

    State v. Dinkins, 2010 WI App 163 (Nov. 18, 2010)

    This case examines if a convicted sex offender is exempt from complying with the address reporting requirement of Wisconsin’s sex offender registration law on grounds that the sex offender claims to be homeless.

    On appeal, the appeals court reversed the circuit court order denying William Dinkins’ motion for post-conviction relief, concluding the plain language of Wis. Stat. sections 301.45(2)(a)5 and (e)4 do not permit prosecution of a soon-to-be released prisoner for failing to fulfill the address reporting requirement if he cannot reasonably predict his residence upon release.

    Hirschhorn v. Auto-Owners Insurance Co., 2010 WI App 154 (Oct. 19, 2010)

    This case examines whether a standard exclusion pollution clause in a homeowner’s insurance policy excludes coverage for a loss caused by a “penetrating and offensive odor” emanating from an accumulation of bat guano, and whether such an exclusion applies to pollutants that result from “biological processes” or is limited to industrial waste.

    The court of appeals held the pollution exclusion did not apply because even though excrement fell within the definition of waste in the homeowner’s insurance policy, “when a person reading the definition arrives at the term ‘waste,’ poop does not pop into one’s mind.” The parties agree there are no Wisconsin cases directly on point.

    State v. Dowdy, 2010 WI App 158 (Oct. 21, 2010)

    In this case, the supreme court will examine the circuit court’s authority to reduce the term of one’s probation. The appeals court concluded that a statute that gives courts power to extend probation or modify probation terms does not grant authority to reduce a probation period.

    In addition, the appeals court held that circuit courts, regardless of whether they have inherent authority to reduce probation periods, do not have inherent authority to reduce probation periods based on a finding of successful rehabilitation.

    MBS-Certified Public Accountants, LLC v. Wisconsin Bell Inc., 2008AP1830 (Aug. 10, 2010)

    Petitioners filed a class action lawsuit on behalf of all Wisconsin consumers who have been wrongfully charged on their telephone bills through “cramming,” a practice in which a telephone company inserts relatively small unauthorized charges into a telephone bill.

    The circuit court determined the claims were barred by the voluntary payment doctrine, and the appeals court affirmed. The appeals court decision was not published.

    MBS asks the court to determine whether the voluntary payment doctrine bars damages under Wisconsin Statutes, or whether the legislature specifically created private rights of action for victims of prohibitive practices.

    A decision by the supreme court is expected to clarify the exceptions to the voluntary payment doctrine as set forth in Putnam v. Time Warner Cable of Southeastern Wis., 2010 WI 108, 255 Wis. 2d 447, 649 N.W. 2d 626 and well as Butcher v. Ameritech Corp., 2007 WI APP 5, 298 Wis. 2d 468, 727 N.W. 2d 546.

    260 N. 12th St. v. Wis. Dept. of Trans., 2010 WI App 138 (Sept. 14, 2010)

    This case involves environmentally contaminated property taken pursuant to eminent domain for a highway construction project in downtown Milwaukee.

    The Department of Transportation (DOT) used its eminent domain power to acquire property owned by Basil Ryan Jr. and 260 North 12th Street LLC (LLC) for a highway construction project in Milwaukee. Ryan sought $3.5 million as just compensation, but received $1.348 million, in large part because the DOT’s appraisal of the fair market value of the property included estimates for future contamination and remediation costs.

    The appeals court concluded the government could introduce evidence of future contamination and remediation costs to establish the fair market value of property taken through eminent domain. The supreme court will examine the admissibility of evidence where market value determinations may be complicated due to the cost of cleaning up the property.

    Gister v. American Family Ins. Co., 2009AP2795 (Nov. 11, 2010)

    This case examines whether a charitable hospital that must provide emergency medical services to the uninsured may enforce a hospital lien pursuant to Wis. Stat. section 779.80 on a Medicaid recipient’s personal injury settlement as an alternative to billing Medicaid.

    In an unpublished decision, the court of appeals relied on Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425, 597 N.W. 2d 462 (Ct. App. 1999) to conclude that when a contract between an HMO and a hospital contains a “hold harmless provision,” no hospital lien can be filed against an HMO patient’s property because the HMOPO patient is not indebted to the hospital.

    State v. Nordberg, 2010AP1142

    In this case, Glen Norberg seeks an interpretation of the provision governing petitions for supervised release from civil commitments of sexually violent persons. The case bypassed the appeals court on certification to the supreme court.

    Nordberg was committed under Ch. 980 in 2001 and petitioned for supervised release in 2008. The circuit court denied Nordberg’s motion, ruling that Nordberg did not meet his burden to prove by clear and convincing evidence that he satisfied the statutory criteria for release under State v. Rachel, 2010 WI App 60, 324 Wis. 2d 441, 782 N.W.2d 443.

    On appeal, Nordberg asks the supreme court to decide if the appeals court in Rachel erroneously interpreted Wis. Stat. section 980.08(4) to place the burden of persuasion on the committed patient to prove by clear and convincing evidence the criteria for granting supervised release.