PUBLISHED
OPINION
Case No.: 96-0645
Complete Title
of Case:
CAROL ANN SCHAIDLER,
Plaintiff-Appellant,
v.
MERCY MEDICAL CENTER OF
OSHKOSH, INC., and
JOHN B. MC ANDREW,
Defendants-Respondents,
RICK SEARLES,
Defendant.
Submitted on Briefs: December 16, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: March 19, 1997
Opinion Filed: March 19, 1997
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If "Special", JUDGE: ROBERT A. HAWLEY
so indicate)
JUDGES: Snyder, P.J., Nettesheim and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Jeffrey Spitzer-Resnick
of Madison.
Respondent
ATTORNEYS On behalf of defendant-respondent Mercy Medical
Center of Oshkosh, Inc., the cause was submitted on
the brief of John A. Nelson and Timothy W. Feeley
of von Briesen, Purtell & Roper, S.C., of
Milwaukee.
On behalf of defendant-respondent John B. McAndrew,
the cause was submitted on the brief of Steven J.
Caulum, Suzanne E. Williams and David J. Pliner of
Bell, Metzner, Gierhart & Moore, S.C., of Madison.
COURT OF APPEALS
DECISION
DATED AND
RELEASED
March 19, 1997
NOTICE
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See § 808.10 and Rule
809.62, Stats.
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
No. 96-0645
STATE OF WISCONSIN IN COURT OF APPEALS
CAROL ANN SCHAIDLER,
Plaintiff-Appellant,
v.
MERCY MEDICAL CENTER OF
OSHKOSH, INC., and
JOHN B. MC ANDREW,
Defendants-Respondents,
RICK SEARLES,
Defendant.
APPEAL from a judgment of the circuit court for Winnebago County:
ROBERT A. HAWLEY, Judge. Affirmed in part; reversed in part and cause
remanded
with directions.
Before Snyder, P.J., Nettesheim and Anderson, JJ.
SNYDER, P.J. Carol Ann Schaidler appeals from a judgment
dismissing all of her claims against Mercy Medical Center of Oshkosh, Inc., and John
B. McAndrew, M.D.(1) Schaidler now
contests the trial court's grant of summary
judgment on the following claims:(2) (1)
violations of statutory provisions of the Mental
Health Act, ch. 51, Stats., which were related to her treatment, and some of which
were conceded by the defendants; (2) various claims of negligence against McAndrew
and Mercy; and (3) claims of false imprisonment stemming from her inpatient treatment
at Mercy.
Because we conclude that the trial court did not fully consider the
conceded statutory violations of ch. 51, Stats., under § 51.61(7)(a) and (b), Stats.,
we reverse the grant of summary judgment as to the two violations conceded by the
defendants. We also reverse the grant of summary judgment for three other alleged
violations of ch. 51, for which neither side brought a motion for summary judgment.
We remand these issues for further consideration in light of this decision. We affirm
the trial court's grant of summary judgment to McAndrew and Mercy on all other
issues.
Schaidler was admitted to an inpatient psychiatric ward at Mercy on an
emergency detention order. A probable cause hearing was held as mandated by §
51.20(7)(a), Stats. Schaidler was represented by counsel at that hearing, and she
stipulated to a "hold-open" disposition, which stated "[Plaintiff] to follow through w/
treating physician's recommendations, incl. in-patient stay @ Mercy - until can be
placed at St. [Elizabeth]'s." Schaidler's counsel stated that there had been some
"jurisdictional difficulty in making the [requested] transfer and if it's deemed to be in
her best interests, we're going to transfer her to St. Elizabeth's Hospital ...." Plaintiff's
counsel also noted that "arrangements have not been completed and that's the primary
reason for her staying here at the present time ...."
Before Schaidler's transfer could be effectuated and in spite of her
agreement to remain at Mercy as an inpatient, on four successive days following that
hearing Schaidler requested that she be discharged and allowed to go home. In
response to these requests, McAndrew, the attending physician, imposed a treatment
director's hold in order to continue her inpatient treatment. See §
51.15(10), Stats.(3)
As mandated by ch. 51, Stats., a hearing was timely held; at that time, the parties
agreed that the treatment director's hold would be dismissed and Schaidler would be
discharged.
Schaidler commenced this action approximately two years after her
discharge. In her complaint she alleged seven distinct causes of action: (1) false
imprisonment by Mercy; (2) violations of her § 51.61, Stats., patients rights by
Mercy, McAndrew and a nursing assistant, Rick Searles; (3) assault and battery by
Searles; (4) intentional infliction of emotional distress by Searles; (5) respondeat
superior against Mercy for the actions of Searles; (6) negligence on the part of Mercy;
and (7) negligence on the part of McAndrew. The trial court granted summary
judgment to McAndrew on all issues, and partial summary judgment to Mercy and
Searles.(4) Schaidler, Mercy and Searles then
entered into a stipulation and order
dismissing Searles from the lawsuit and relieving Mercy of all liability attributable to
Searles. Schaidler now appeals the trial court's grant of summary judgment.
Schaidler contends that the following issues were wrongly dismissed on
summary judgment: her claims of violations of her rights under ch. 51, Stats., some
of which were conceded by McAndrew and Mercy; and her claims of negligence
(against McAndrew and Mercy) and false imprisonment (against Mercy). We will
review Schaidler's appellate issues as we have delineated them above: ch. 51
violations, the negligence claims, and the false imprisonment claim.
We review decisions on summary judgment de novo, applying the same
methodology as the trial court. See Armstrong v.
Milwaukee Mut. Ins. Co., 191
Wis.2d 562, 568, 530 N.W.2d 12, 15 (Ct. App. 1995), aff'd, 202 Wis.2d
258, 549
N.W.2d 723 (1996). We first examine the complaint to determine whether it states a
claim and then the answer to determine whether it presents a material issue of fact.
See
Jones v. Dane County, 195 Wis.2d 892, 912, 537
N.W.2d 74, 79 (Ct. App. 1995).
If each does, we then examine the documents offered by the moving party to determine
whether that party has established a prima facie case for summary judgment.
See id.
If it has, we look to the opposing party's documents to determine whether any material
facts are in dispute which would entitle the opposing party to a trial. See
id.
Violations of Ch. 51, Stats.
Section 51.61, Stats., is termed the "Patients Rights" statute and outlines
numerous rights that are afforded mental health patients who are admitted to a treatment
facility. See § 51.61(1). This section also provides for a right
of redress for any patient
who is denied any of these guaranteed rights. In such a case, the patient may bring an
action pursuant to § 51.61(7). That subsection provides in relevant part:
(7)(a) Any patient whose rights are protected under this
section who suffers damage as the result of the unlawful
denial or violation of any of these rights may bring an
action against the person, including the state or any
political subdivision thereof, which unlawfully denies or
violates the right in question. The individual may recover
any damages as may be proved, together with exemplary
damages of not less than $100 for each violation and such
costs and reasonable actual attorney fees as may be
incurred.
(b) Any patient whose rights are protected under this
section may bring an action against any person, including
the state or any political subdivision thereof, which
wilfully, knowingly and unlawfully denies or violates any
of his or her rights protected under this section. The
patient may recover such damages as may be proved
together with exemplary damages of not less than $500
nor more than $1,000 for each violation, together with
costs and reasonable actual attorney fees. It is not a
prerequisite to an action under this paragraph that the
plaintiff suffer or be threatened with actual damages.
[Emphasis added.]
The trial court dismissed Schaidler's § 51.61 claims, concluding "even if there
was
technical violation that there was no medical testimony as to any kind of nexus between
a violation of this particular statute and that plaintiff suffered harm under Section 7."
Our purpose when interpreting a statute is to determine the legislative
intent. See Kluth v. General Cas.
Co., 178 Wis.2d 808, 815, 505 N.W.2d 442, 445
(Ct. App. 1993). In so doing, we must first examine the statute's language and then
resort to extrinsic aids only if the language is ambiguous. See
State v. Frey, 178
Wis.2d 729, 737, 505 N.W.2d 786, 790 (Ct. App. 1993). A statute is unambiguous
if its words are subject to one applicable meaning in the eyes of a reasonably well-informed
individual. See Voss v. City of
Middleton, 162 Wis.2d 737, 750, 470
N.W.2d 625, 630 (1991).
We conclude that by its plain language this subsection provides for two
distinct causes of action. Under paragraph (a), a patient whose rights have been
violated and who has suffered damages as a result may bring an action. The
paragraph
allows for a minimum recovery of $100 exemplary damages for each violation, with no
upper cap, recovery of any damages as may be proved, and the recovery of
costs and
reasonable attorney's fees. See § 51.61(7)(a), Stats. In the
alternative, paragraph (b)
provides for a cause of action which does not require that a plaintiff suffer
or be
threatened with actual damages; however, the plaintiff suing under this paragraph must
prove that the individual or institution "wilfully, knowingly and unlawfully" violated this
section. See § 51.61(7)(b).
Schaidler specifically argues that Mercy and/or McAndrew violated her
rights when they secluded and restrained her without a written physician's order
contrary to § 51.61(1)(i)1, Stats.; maintained policies which permitted seclusion and
restraint without proper physician's orders contrary to
id.; failed to use less restrictive
measures prior to placing her in seclusion and four-point restraints contrary to §
51.61(1)(e) (amended by 1995 Wis. Act 92, § 6, and (i)1; and failed to provide
a
written treatment plan in violation of § 51.20(8)(bg), Stats. We will begin with a
discussion of Schaidler's first two arguments, as "technical" violations of these two are
conceded by McAndrew and Mercy. Given those concessions, it is only necessary to
ascertain the effect of those violations on the summary judgment analysis.(5)
Upon our review of the summary judgment record compiled in this case,
it is apparent that Schaidler's counsel failed to specify whether Schaidler's claims were
brought under § 51.61(7)(a) or (b), Stats. Opposing counsel for McAndrew and
Mercy focused their responses to the conceded statutory violations on their belief that
Schaidler had failed to show any injury. None of the parties directly considered the
impact of paragraph (b), nor was this argued to the court.(6) The trial court determined
that because Schaidler had failed to show any damages stemming from the "technical
violation[s]," she could not avoid the cross-motion for summary judgment brought by
McAndrew and Mercy.
As earlier construed, § 51.61(7)(a) and (b), Stats., contemplates two
separate and distinct means of bringing an action which alleges a statutory violation of
ch. 51, Stats. Because the statutory violations regarding the timeliness of daily written
physician orders was conceded by McAndrew and confirmed through an examination
of pertinent written policies of Mercy, we conclude that the grant of summary judgment
on these two issues must be reversed and remanded for further proceedings. While the
trial court applied paragraph (7)(a) to Schaidler's claims and concluded that she had
failed to show any damages sustained as a result of the violations, the trial court did not
consider the application of paragraph (7)(b). This consideration will require Schaidler
to present evidence that the violations of the statute were willful, knowing and unlawful.
Upon receiving any additional evidence and argument from the parties, the trial court
may properly make a determination of the applicability of § 51.61(7)(b) to the issues
of
the conceded violations of the statute.(7)
We next consider Schaidler's claims that McAndrew and Mercy failed to
use less-restrictive measures prior to the use of seclusion and four-point restraints,
allegedly in violation of § 51.61(1)(e) and (i)1, Stats. One paragraph requires that a
patient treated under this section "ha[s] the right to the least restrictive conditions
necessary to achieve the purposes of admission ...." Section 51.61(1)(e). The other
specifies that "[i]solation or restraint may be used only when less restrictive measures
are ineffective or not feasible ...." Section 51.61(1)(i)1.
Schaidler claims that McAndrew conceded a violation of the applicable
statute and directs us to McAndrew's deposition. However, while portions of
McAndrew's deposition testimony were included in the record on appeal, the pages
Schaidler focuses on are not part of the record.(8) It is the appellant's responsibility to
insure that the record includes all documents pertinent to the appeal. See
Fiumefreddo
v. McLean, 174 Wis.2d 10, 26, 496 N.W.2d 226, 232 (Ct. App. 1993);
see also §
809.15(2), Stats. (the parties receive ten-day notice of the provisional contents of the
record prior to its transmittal to the appellate court). When an appellate record is
incomplete in connection with an issue raised by the appellant, we must assume that the
missing material supports the trial court's ruling. See
Fiumefreddo, 174 Wis.2d at 27,
496 N.W.2d at 232. We do so here and, on that ground, affirm the trial court's grant
of summary judgment on this issue.(9)
See id.
The final argument under this section which Schaidler advances is her
claim that the respondents failed to provide a treatment plan for her in contravention of
§ 51.20(8)(bg), Stats. This section provides that when a settlement agreement is
sought, it "shall be in writing, shall be approved by the court and shall include a
treatment plan ...." Id. Schaidler claims that the
settlement agreement reached at the
probable cause hearing was inadequate in that it did not include the required treatment
plan.
We first note that from the outset Schaidler did not want to be a patient
at Mercy. However, because of the jurisdictional requirements of the police officers
who transported her, she was taken there for evaluation. Once there, she was placed
under an emergency detention order, and a probable cause hearing was set. At the time
of that hearing, and in recognition of Schaidler's desire to be treated at another hospital
as well as her ongoing need for inpatient care, an agreement was reached whereby
Mercy agreed to transfer Schaidler to St. Elizabeth's as soon as the transfer could be
arranged. It is clear from the hearing transcript that arrangements for the transfer were
to be made through Schaidler's family and counsel. However, due to intervening
factors that transfer was not accomplished.(10)
While the statute specifies that a treatment plan must be a part of any
settlement agreement, the trial court found that including a treatment plan with the
settlement agreement was ultimately the responsibility of the county corporation
counsel. We agree. While a treatment plan must be written by a treating physician, the
ultimate responsibility for requesting one and attaching it to the settlement agreement
rests with counsel. We cannot visit this lack upon either Mercy or McAndrew. There
was no statutory violation by either respondent, and we affirm the grant of summary
judgment on this issue.
In addition to the above, the trial court also granted summary judgment
to McAndrew and Mercy on the following claims: that Schaidler was forcibly
administered medication in nonemergency situations, despite the absence of a court
order allowing involuntary treatment; that she was not given adequate access to toilet
facilities; and that she was taunted by members of Mercy's staff during periods of
restraint.(11) While McAndrew requested
summary judgment as to the first two issues,
neither Mercy nor Schaidler moved for summary judgment on these three claims.
Summary judgment should not be granted unless there are no material
facts in dispute, no competing inferences that can arise and the law that controls the
issue is clear. See Lecus v. American Mut. Ins.
Co., 81 Wis.2d 183, 189, 260
N.W.2d 241, 243 (1977). Summary judgment is not to be a trial on affidavits and
depositions. See id. Summary
judgment is also placed before the court on the motion
of a party. See § 802.08, Stats. In the instant case, neither the
hospital nor Schaidler
had brought a motion for summary judgment on these contested issues.
We affirm the grant of summary judgment for McAndrew on the above
issues, concluding that Schaidler failed to put forth any conclusive evidence that
material facts were in dispute. Schaidler directs us to her deposition in support of these
claims against McAndrew; the limited portion of her deposition which was included in
the record on appeal fails to implicate McAndrew. We therefore base our de novo
review on the record that we have before us and assume that the missing material also
supports the trial court's ruling. See
Fiumefreddo, 174 Wis.2d at 27, 496 N.W.2d at
232.
We conclude, however, that since neither Mercy nor Schaidler requested
summary judgment on these issues, we must reverse the trial court's ruling as to Mercy
and remand for further consideration. Because neither the factual bases for these three
issues nor any defenses have been placed before the trial court by either party, they are
not appropriate for summary judgment at this point.(12) See
Lecus, 81 Wis.2d at 189,
260 N.W.2d at 243.
In sum, we reverse the trial court's grant of summary judgment on the
conceded violations of § 51.61, Stats., for a consideration of the impact of paragraph
(7)(b). We affirm the grant of summary judgment on the issues of the alleged failure
to employ less restrictive means than seclusion and four-point restraints, and on the
failure to include a treatment plan with the settlement agreement. We affirm the trial
court's grant of summary judgment to McAndrew on the other alleged violations of §
51.61, but reverse the summary judgment on these same issues as to Mercy and remand
for consideration of the factual bases for those claims.
Negligence Claims
Schaidler next seeks reversal of the trial court's grant of summary
judgment on her allegations of negligence. She claims that her cause of action for
negligence lies in the respondents' failure to meet the applicable standards of care. The
trial court concluded that "there is absolutely no showing of any kind of causal nexus
here between the negligence and causation of the damages of the plaintiff claiming she
has had more psychotic episodes or psychological harm." Thus, the trial court found
that Schaidler had failed to produce any evidence that linked her alleged injuries to any
actions of McAndrew or Mercy.
Four elements must be present to sustain a cause of action for negligence:
a duty of care, a breach of that duty, a causal connection between the conduct and the
injury, and an actual loss or damage as a result. See
Nieuwendorp v. American Family
Ins. Co., 191 Wis.2d 462, 475, 529 N.W.2d 594, 599 (1995). Because
the first two
elements are not contested, we will initially review the grant of summary judgment on
the basis of the causation element. "'The test of cause in Wisconsin is whether the
defendant's negligence was a substantial factor in producing the injury.'"
Id. (quoted
source omitted). The defendant's conduct is a substantial factor in producing the harm
if it leads the trier of fact, as a reasonable person, to regard it as a cause.
See Young
v. Professionals Ins. Co., 154 Wis.2d 742, 748, 454 N.W.2d 24, 27
(Ct. App. 1990).
Schaidler contends that her expert witness "was deeply critical in his
written report and deposition testimony of numerous aspects of MS. SCHAIDLER's
treatment at MERCY." However, while Schaidler's expert offered an opinion that
certain actions of McAndrew fell below a recognized standard of care, when asked
whether he had an opinion as to whether Schaidler was damaged in any way as a result
of any alleged negligent actions, he responded, "I can have no opinion about that. I
don't know whether she was damaged or not."
Schaidler also maintains that she is not limited to evidence which "put[s]
the first party's expert opinion at issue" but may also use other facts to undermine the
moving party's expert. She seems to suggest that all she needs to do to create material
issues of fact is to cast doubt on the expert opinions of the defendants. She then reasons
that because McAndrew relied on his knowledge of his own "customary practice and the
good judgment of the staff," rather than on his personal recollections in justifying his
treatment methods, the defendants' experts' opinions are "based in large part on these
same shaky foundations." Schaidler claims that it cannot be said that the opinions
offered by defense experts are "uncontradicted and unimpeached" and that the trial court
should have denied summary judgment on this basis.
Summary judgment may be granted if there is no genuine issue as to any
material fact. See Baxter v. DNR,
165 Wis.2d 298, 312, 477 N.W.2d 648, 654 (Ct.
App. 1991). "Thus, the 'mere existence of some alleged factual dispute
between the
parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
fact.'" Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986)). A factual issue is
genuine "'if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.'" Id. (quoted source omitted).
No reasonable jury could return a verdict for Schaidler on the issue of
negligence merely by discounting the expert testimony put forth by the defendants.
Schaidler has failed to offer any evidence linking later psychotic episodes to the actions
of either McAndrew or Mercy. Her own expert declined to state an opinion. We
conclude that Schaidler failed to raise a disputed issue of material fact and the trial court
properly granted summary judgment for McAndrew and Mercy on the negligence
claims.(13)
False Imprisonment Claim
Schaidler's final claim against Mercy is one for false imprisonment
alleged as a result of the hospital's failure to transfer her to St. Elizabeth's.
An action for the tort of false imprisonment protects one's personal
interest in freedom from restraint of movement. See
Herbst v. Wuennenberg, 83
Wis.2d 768, 774, 266 N.W.2d 391, 394 (1978). There is no cause of action unless the
confinement is contrary to the will of the individual. See
id. There is also no cause of
action for false imprisonment if a defendant complies with the formal requirements of
the law, so that the detention of the individual is legally authorized. See
Stern v.
Thompson & Coates, Ltd., 185 Wis.2d 220, 251, 517 N.W.2d 658,
670 (1994).
Schaidler contends that factual issues remain in dispute as to whether her
confinement at Mercy was unlawful. She argues that once the settlement was reached,
Mercy was under an obligation to have her transferred. The failure to do so has led to
her claims of false imprisonment. Because we concluded earlier that responsibility for
Schaidler's transfer rested with her family and counsel, we now conclude that there is
no factual predicate to support her claim that she was unlawfully held. Mercy complied
with all of the statutory hearings required by Schaidler's emergency detention. There
is no legal basis for the false imprisonment claim and the trial court properly recognized
that when it granted summary judgment to the respondents.
In conclusion, we affirm the trial court's grant of summary judgment for
the respondents on the statutory requirements that the least restrictive means be used in
treatment and that a treatment plan be attached to the hold-open settlement agreement.
We also affirm the trial court's finding that summary judgment was proper on the issues
of negligence and false imprisonment. We do, however, reverse the trial court's grant
of summary judgment on the following issues: the conceded violations of § 51.61,
Stats., for consideration of Schaidler's cause of action under paragraph (7)(b); and the
grant of summary judgment to Mercy on the issues of the forcible administration of
medication, inadequate access to toilet facilities, and taunting by staff members during
periods of restraint. Because these issues were not properly before the court on motion
for summary judgment by either Mercy or Schaidler, they must be given further
consideration.
By the Court.--Judgment affirmed in part; reversed in part and cause
remanded with directions.
1. The trial court had granted summary judgment to
McAndrew on all claims, and partial
summary judgment to Mercy and another defendant, Rick Searles. A settlement agreement
was
then reached between Schaidler, Searles and Mercy, dismissing all remaining claims which
had
survived the court's grant of summary judgment.
2. While there are multiple claims under each of
these sections, we conclude that the
appellate arguments fall under these three major groupings and will address Schaidler's
arguments accordingly.
3. Section 51.15(10), Stats., has been amended by
1996 Wis. Act 175, § 4. The changes
are not pertinent to our analysis.
4. The trial court preserved for trial the following
claims: (1) a statutory violation of §
51.61(1)(s), Stats. (lack of privacy in toileting); (2) assault and battery (allegedly by Searles);
(3) intentional infliction of emotional distress; and (4) respondeat superior against Mercy.
5. McAndrew and Mercy concede that they violated
the following provisions of §
51.61(1)(i)1, Stats.:
The authorization for emergency use of isolation or restraint
shall be in writing, except that isolation or restraint may be
authorized in emergencies for not more than one hour, after
which time an appropriate order in writing shall be obtained
.... Emergency isolation or restraint may not be continued for
more than 24 hours without a new written order.
6. In spite of the unartfully styled arguments
presented to the court, we recognize that
summary judgment is a drastic remedy. See Lecus v.
American Mut. Ins. Co., 81 Wis.2d
183, 189, 260 N.W.2d 241, 243 (1977). Because our review of the record reveals that
Schaidler's counsel referred to § 51.61(7)(b), Stats., on at least one occasion and noted
that
this subsection provided for payment of penalties without proof of damages, we conclude that
this issue is preserved for review. We nonetheless visit the lack of a cogent and clear
presentation of this issue upon the plaintiff's counsel.
7. While we uphold the trial court's grant of
summary judgment for McAndrew and Mercy
on the conceded violations with respect to its consideration of § 51.61(7)(a), Stats., we
take
no position on the appropriate procedure in the trial court to address on remand the alleged
violations of ch. 51, Stats., under paragraph (7)(b).
8. The pages referred to by Schaidler's counsel are
included in the appendix; however,
under the Rules of Appellate Procedure, an appendix is to include "limited portions
of the
record essential to an understanding of the issues raised." See
§ 809.19(2), Stats. (emphasis
added). We will not here consider portions of deposition testimony which are not also part
of
the record.
9. Nonetheless, it is apparent to us from our review
of the portions of McAndrew's
deposition that were included in the record that the staff at Mercy utilized a policy of
graduated
restrictions when such were necessitated by the behavior of a patient. Schaidler has failed to
offer any proof that the actions of the staff with respect to her were not in keeping with this
policy. The fact that patients are not "walked lockstep" through a precise hierarchy of
seclusion and restraints is not evidence of statutory violations.
10. An affidavit of Suzanne E. Williams, attorney
for McAndrews, stated that she attended
the deposition of the attorney who had represented Schaidler at the probable cause hearing.
Williams stated in her affidavit:
[Schaidler's attorney] and plaintiff's husband ... made contact
with individuals at St. Elizabeth's Hospital and attempted to
arrange her transfer. However, they were unable to make
arrangements for the transfer because the attending physicians
to whom plaintiff wished her care transferred were not
available.
11. This last claim had also implicated Searles, but
because the stipulation agreement has
dismissed all claims against him, Schaidler pursues this claim based only on the conduct of
other staff members.
12. Because these three claims all involve alleged
violations of § 51.61, Stats., the trial
court must consider whether they are actionable by applying the requirements of §
51.61(7)(a)
and (b).
13. Schaidler disputes this, contending that she has
produced "extensive evidence of the
harm she suffered as a result of respondents' negligent conduct." She directs us to the
deposition testimony of Dr. Jean Seay, her treating psychiatrist. While a portion of Seay's
deposition is included in the appellant's appendix, it is not a part of the record on appeal.
See
Fiumefreddo v. McLean, 174 Wis.2d 10, 27, 496
N.W.2d 226, 232 (Ct. App. 1993).
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