Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Contracts | Criminal Law | Criminal Procedure | Family Law | Insurance | Jury Trials | Municipal Law | Open Meetings Law | Open Records | Taxation | Torts |
Contracts
Illegal Contracts - Attorney Fees
Greenlee v. Rainbow
Auction/Realty Co. Inc., No. 97-1483 (filed 23 April 1998)
(ordered published 27 May 1998)
Schuster, a real estate broker working for a realty company, entered
into an illegal fee splitting arrangement with a nonbroker, Greenlee.
The deal involved a truck stop on which a bank had foreclosed.
Schuster's realty company had the exclusive right to list the property.
Greenlee located a potential buyer but disclosed the buyer's identity
only after Schuster agreed to the split fee. The bank sold the property
to the buyer but refused to pay Greenlee.
Greenlee then sued the bank and the realty company. Although the bank
tendered its defense to the realty company and Schuster, they refused to
accept it. The bank filed claims against the realty company and Schuster
for its attorney fees and costs in defending against Greenlee's action,
regardless of its outcome. In prior litigation, the courts ruled that
Greenlee was attempting to enforce an illegal contract (as a nonbroker
he could not collect a commission). Based on this determination, the
circuit court granted summary judgment to the bank, awarding it attorney
fees and costs as against Schuster and the realty company.
The court of appeals, in an opinion written by Judge Roggensack,
affirmed. The illegal fee splitting agreement violated a statute and
constituted negligence per se. Thus Schuster violated the standard of
care and was responsible for any damages that he caused - namely, costs
and attorney fees. In response, Schuster asserted affirmative defenses
of ratification and equitable relief; that is, the bank had ratified the
illegal contract or had "dirty hands" itself. Ratification did not apply
because the contract was void at its inception. Nor did the record
support the allegation that the bank was aware of the consequences of
Greenlee's lack of a real estate license.
Criminal Law
Theft from Person - Removing Purse from Handle of Occupied
Wheelchair
State v. Hughes,
No. 97-0638-CR (filed 7 April 1998) (ordered published 27 May 1998)
The victim in this case was leaving a grocery store in her wheelchair
when her purse was removed from the wheelchair handle where it was
hanging. For this theft the defendant was convicted of the crime of
theft from the person. The issue on appeal was whether this offense
encompasses removing property from the handle of a wheelchair when it is
occupied by the victim.
Wis. Stat. sections 943.20(1)(a) and (3)(d)2 provide that "whoever
... intentionally takes and carries away ... moveable property ... from
the person of another" is guilty of theft from person. In a decision
authored by Judge Schudson, the court of appeals concluded that theft
"from the person" encompasses taking property from the wheelchair of one
sitting in the wheelchair at the time of the taking. Wheelchairs have
become essential extensions of the "persons" of their occupants, and
wheelchair handles and storage compartments are essential to wheelchair
use.
In footnote the court acknowledged two important implications that
logically flow from its holding: 1) the term "wheelchair," as it is used
in this decision, encompasses functional equivalents, including canes,
crutches, walkers, motorized carts, and other apparatuses serving the
same purpose; and 2) "sitting in the wheelchair," as that phrase was
used in the decision, encompasses the times and locations involved in
getting into or out of, or taking hold of or releasing, a "wheelchair"
or its functional equivalent.
Finally, in reaching the conclusion that it did about the defendant's
liability for the crime of theft from the person, the court indicated in
footnote that it did not foreclose the possibility that such conduct,
depending on all the circumstances, could also constitute other crimes,
including robbery and theft from a vulnerable adult.
Criminal Procedure
Arrest - Odor of Marijuana in Auto Occupied by Single Individual -
Probable Cause to Arrest Lacking
State v. Secrist,
No. 97-2476-CR (filed 1 April 1998) (ordered published 27 May 1998)
An officer was directing traffic at a local parade. The defendant,
alone in his car, drove up to the officer to ask for directions. The
officer detected the odor of marijuana coming from the vehicle, an odor
he recognized from his training and experience. The officer told the
defendant to pull over, ordered him from his car, and placed him under
arrest for possession of marijuana. A search of the car turned up a
marijuana cigarette and roach clip.
The critical issue on appeal was whether the odor of marijuana
emanating from a vehicle is enough to establish probable cause to arrest
the sole occupant of the vehicle. The circuit court had found that the
odor was sufficient to establish probable cause.
In a decision authored by Judge Brown, the court of appeals reversed.
It concluded that the odor of marijuana from a vehicle does not by
itself give an officer reasonable grounds to conclude that the sole
occupant of the vehicle is the person who smoked the marijuana. While
the odor gave the officer reason to believe that a crime had been
committed, he did not have reason to believe that the crime had just
been committed or that the defendant had committed it. There was no
indication as to when the marijuana had been smoked or by whom. The
smell of marijuana lingers and thus it could have been smoked five
minutes earlier or even several hours earlier. Thus, the court concluded
that the officer had but mere suspicion that the defendant had been
smoking marijuana, but suspicion is not sufficient for probable cause to
arrest.
In reaching this decision, the court distinguished State v.
Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992), wherein a
marijuana arrest was upheld where there was both the smell of marijuana
emanating from the vehicle and visible smoke in the vehicle. The latter
evidence was lacking in the present case.
Ineffective Assistance of Counsel - Requirement of Machner Hearing -
Authentication of Voice Recordings - One-party Consent Recordings
State v. Curtis,
No. 96-2884-CR (filed 8 April 1998) (ordered published 29 May 1998)
The defendant was an inmate at a state prison when the events in this
case occurred. Officials at the prison used another inmate in the
capacity of an informant. The informant wore a wire and recorded his
conversations with the defendant while buying drugs from him. The tapes
of the conversations were played for the jury at the defendant's trial
and the defendant was found guilty on four counts of delivering
drugs.
The defendant's first claim on appeal was that his trial counsel was
ineffective in failing to cite case law in his motion to suppress the
tapes and in failing to request an in camera review of the tapes prior
to their admission as evidence. He acknowledged that the Wisconsin
Supreme Court has held that a post-conviction hearing pursuant to
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979), is a prerequisite to a claim of ineffective assistance of
counsel. He argued, however, that a Machner hearing is not
necessary in every case and that because trial counsel's alleged errors
were so obvious and could not possibly have been the result of tactical
decisions, no Machner hearing was required.
The court of appeals, in a decision authored by Judge Brown,
disagreed with the defendant's position. The Machner court held
that "it is a prerequisite to a claim of ineffective representation on
appeal to preserve the testimony of trial counsel." The hearing is
important not only to give counsel a chance to explain his or her
actions but to allow the trial court, which is in the best position to
judge counsel's performance, to rule on the motion. This dual purpose
renders the hearing essential in every case where a claim of ineffective
assistance of counsel is raised.
In footnote the court observed that its holding should not be
construed to say that a defendant is automatically entitled to an
evidentiary hearing no matter how cursory or meritless the ineffective
assistance of counsel claim might be. A trial court may deny a
post-conviction motion without a hearing if the motion fails to allege
sufficient facts to raise a question of fact, presents only conclusory
allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief.
The court of appeals also rejected the defendant's claims that the
tapes admitted into evidence at trial were not properly authenticated.
At the trial the informant, who was a party to the conversations on the
tapes, testified that the voices on the tapes were his and the
defendant's. The court concluded that this type of voice identification
is a valid avenue of authentication and that tapes are properly
identified and authenticated when a party to the recorded conversation
identifies the defendant's voice and testifies that the tapes accurately
depict the conversations.
Finally, the defendant attacked the use of the tapes on the theory
that one-party consent tapes are legal only for investigative purposes
and are not admissible as evidence. While this used to be the law in
Wisconsin, the law had been changed by the time the 1993 recordings were
entered into evidence at the defendant's trial. See 1989 Wis.
Act 121 (allowing one-party consent tapes into evidence in felony drug
prosecutions.) [Note: Subsequent amendments have further broadened this
authorization to all felonies. See 1993 Wis. Act 98; 1995 Wis.
Act 30.]
Post-conviction Practice - Standing of Defendant on Straight
Probation to Bring Section 974.06 Motion
State v. Mentzel,
No. 97-1814 (filed 22 April 1998) (ordered published 27 May 1998)
The defendant was convicted of allowing the continued use of certain
premises as a place of prostitution contrary to Wis. Stat. section
944.34. At the sentencing hearing, the trial court withheld sentence and
placed the defendant on probation for three years. The defendant
appealed and the court of appeals affirmed his conviction.
Thereafter the defendant sought relief pursuant to Wis. Stat. section
974.06, which permits a person "in custody under sentence of a court" to
challenge the validity of his or her conviction. The circuit court
dismissed the motion, concluding that the defendant was not "under
sentence of a court" because he had been placed on straight probation
and therefore could not avail himself of relief under section
974.06.
The court of appeals, in a decision authored by Judge Nettesheim,
reversed. It concluded that, subject to any other bars, all defendants
on probation have standing to pursue post-conviction relief under
section 974.06.
Terry Stops - Miranda Rights
State v. Gruen,
No. 96-2588-CR (filed 14 April 1998) (ordered published 27 May 1998)
The court of appeals, in an opinion written by Judge Curley, affirmed
the defendant's conviction for OWI. The primary issue involved the
admissibility of the defendant's statements to police officers. The
defendant was originally "stopped" by a City of Milwaukee police officer
in a Milwaukee suburb - his car was stuck in a snow bank on a cold,
windy night - who then summoned suburban police. The defendant argued
that when suburban officers arrived he was in "custody" for
Miranda purposes and should have been read his Miranda
rights before questioning. Applying a totality of the circumstances
test, the court held that the defendant was not in Miranda-type
custody when interrogated; for example, he was questioned at the scene,
no firearms were pointed at him, and police never ordered him to the
ground.
This case's significance rests on its discussion of the interaction
of Terry stops and the Miranda rule. Based on prior
case law, the court held that "custody" for Miranda purposes
might occur even during a valid Terry stop. Put another way,
the court declined to equate Miranda-type custody with a Fourth
Amendment "arrest." Thus, an investigative "stop" based on reasonable
suspicion can, under certain circumstances, be sufficiently intrusive to
warrant the giving of Miranda warnings.
Family Law
Child Abuse - Transfer of Custody During Child Abuse Injunction
Proceedings
Scott M.H. v. Kathleen
M.H., Nos. 97-0814 and 97-0815 (filed 15 April 1998) (ordered
published 27 May 1998)
Kathleen and Scott were divorced in 1993. The parties were awarded
joint legal custody of their only child, and the mother was awarded
primary physical custody. In 1995 Scott filed a motion in the divorce
action seeking sole custody and placement of the child. This matter was
not scheduled for hearing until more than a year later. However, prior
to the scheduled hearing, Scott filed a petition for a temporary child
abuse restraining order and injunction against Kathleen pursuant to Wis.
Stat. section 813.122 in which he alleged that Kathleen had engaged in
physical and sexual abuse of their child.
The circuit court found that there were reasonable grounds to believe
that Kathleen had engaged in abuse of the child. Despite this finding,
the court dismissed the injunction action, instead taking jurisdiction
over the matter in the parties' divorce action. Wearing its "divorce
hat," the court changed the child's custody and placement to his father
pursuant to Wis. Stat. section 767.325.
The critical issue on appeal was whether the trial court acted with
statutory authority when it modified child custody and placement.
Rejecting the mother's argument that the injunction statute (Wis. Stat.
section 813.122) does not permit such action, the court of appeals
affirmed the circuit court.
In a decision authored by Judge Nettesheim, the appellate court
concluded that section 813.122 implicitly envisions a change of
placement and custody if the trial court issues a child abuse injunction
against a parent who has custody or placement of a child under a divorce
judgment or order.
As noted above, the circuit court dismissed the injunction action and
changed custody and placement by taking jurisdiction over the parties'
divorce action. The appellate court noted that even if the trial court
procedurally erred by invoking its divorce jurisdiction, that error was
harmless. This is because the injunction statute envisions a change of
custody or placement when the respondent is the custodial parent. In
this matter, the trial court factually determined that the grounds for
an injunction had been established. Thus, the court could have entered
the same order changing the child's custody and placement in the
injunction proceeding. It turned to the divorce action only because it
concluded that an injunction was too harsh and restrictive a sanction
against the mother.
Insurance
Subrogation - Indemnification - Time Limits
Jones v. General Casualty
Co., No. 97-3228 (filed 28 April 1998) (ordered published 27
May 1998)
American Family issued underinsured motorist coverage (UIM) to
Marjorie Jones, who was injured by a tortfeasor. American Family
eventually sued the tortfeasor's employer for indemnification on the UIM
coverage paid to Jones. The circuit court dismissed the complaint as
untimely. On appeal American Family argued that the judge erroneously
applied the statute of limitations governing subrogation to its
indemnification claim.
The court of appeals, in an opinion written by Judge Myse, affirmed.
Although no Wisconsin cases addressed this issue, the court sided with
"the clear majority of cases" holding that "equitable indemnity does not
permit an insurer to collect from a wrongdoer. Rather, the insurer's
right to indemnity from a wrongdoer is fixed solely by its subrogation
rights." The general principles of indemnification discussed in those
cases were recognized in Wisconsin. The court held "that Wisconsin law
prevents an underinsurer from collecting from a wrongdoer on an
indemnification claim."
Direct Actions - Foreign Insurers
Kenison v. Wellington Ins.
Co., No. 97-1758 (filed 21 April 1998) (ordered
published 27 May 1998)
The plaintiff was injured in a car accident that occurred in
Wisconsin. The driver of the other car was employed by a Canadian
company that was insured by Wellington Insurance Co., also a Canadian
company that did no business in Wisconsin or any part of the United
States. The plaintiffs filed a summons and complaint against Wellington
(a direct action) but failed to effect timely service on the tortfeasor
or her employer. The trial judge dismissed the direct action against
Wellington because that insurer did not deliver or issue for delivery a
policy of insurance in Wisconsin.
The court of appeals, in an opinion written by Judge Cane, affirmed.
The "unambiguous language of sec. 631.01, Stats., limits the application
of sec. 632.24, Stats., to insurance policies delivered or issued for
delivery in this state." The undisputed record showed that Wellington
did not fall within the direct action statute. It was up to the
Legislature to "cure any unfairness" in such procedures.
Next Page
Jury Trials
Jury Selection - Striking Minority Jurors - Timeliness of Batson
Objection
State v. Jones ,
No. 97-1002-CR (filed 14 April 1998) (ordered published 27 May 1998)
The defendant, an African-American, was charged with robbery. A jury
trial was scheduled and the parties and the court conducted voir dire of
prospective jurors. After completing the questioning of the panel, the
state peremptorily struck a Hispanic juror and two African-American
jurors. After each side had exercised all of its peremptory strikes, the
trial court asked whether the 14 remaining jurors were the jurors the
parties had selected for the case. The defendant, through his counsel,
answered affirmatively. The jury was sworn and the remaining members of
the venire were excused.
The defendant's attorney then objected to the peremptory challenges
made by the state of the three minority jurors, claiming that they were
racially motivated in violation of Batson v. Kentucky, 476 U.S.
79 (1986), and, therefore, a new jury panel should be selected. The
trial court disagreed and the case proceeded to trial. The defendant was
convicted.
The critical issue on appeal was whether the defendant had timely
objected to the state's striking of the minority jurors. In a decision
authored by Judge Wedemeyer, the court of appeals concluded that the
defendant'sBatson objection, made after the jury was sworn,
came too late. It held that a defendant must make any Batson
objection prior to the time the jury is sworn. If the objection is not
made until after that time, the issue is waived.
In footnote the court observed that even if the defendant had made a
timely objection, it would have been difficult, if not impossible, for
the appellate court to review the merits of his claim because he failed
to ensure that voir dire was recorded. The record documenting the
questions and answers posed during jury selection is essential to any
meaningful review of the Batsonissue.
Municipal Law
Fire and Police Commissions - Appeals of Disciplinary Actions
Younglove v. City of Oak
Creek Fire and Police Commission, No. 97-1522-FT (filed 31
March 1998) (ordered published 29 April 1998)
Following disciplinary proceedings the Oak Creek Police and Fire
Commission discharged Younglove from his job as chief of police in that
community. He appealed his discharge to the circuit court pursuant to
Wis. Stat. section 62.13(5)(i). In this statutory appeal, the circuit
court affirmed the police and fire commission. [Note: This was not a
review of the commission's decision by writ of certiorari.]
Younglove appealed the circuit court's affirmance to the court of
appeals. The critical issue then became whether the court of appeals had
jurisdiction to consider Younglove's appeal. The statute cited above
provides that, if the order of the police and fire commission is
sustained by the circuit court, "it shall be final and conclusive."
Relying on this language, the court of appeals, in a decision authored
by Judge Fine, concluded that it had no jurisdiction over Younglove's
appeal. The Legislature has explicitly deprived appellate courts of
jurisdiction to review orders issued by the circuit court when the
latter considers appeals from police and fire commission orders under
section 62.13(5)(i) and its predecessors. The Legislature has made the
circuit court's decision on this kind of statutory appeal final -
irrespective of whether an appellate court believes that decision to be
right or wrong.
The court of appeals' decision also addressed the standard of review
to be applied by the circuit court in a statutory appeal under section
62.13(5)(i). The statute provides that "the question to be determined by
the [circuit] court shall be: upon the evidence [before the Board of
Police and Fire Commissioners] is there just cause, as described under
para. (em), to sustain the charges against the accused?" This requires
the circuit court to ensure that the board's decision is supported by
the evidence that the board found credible. The circuit court is not
empowered to take evidence. Rather, if additional evidence or other
material is needed, the circuit court is directed by statute to remand
to the board for that purpose. The statute requires the circuit court to
give deference to the board's findings and credibility determinations in
deciding whether upon the evidence before the board there was just cause
under the criteria specified in the statute to sustain the charges
against the officer. The statute does not call for the circuit court to
ignore credibility determinations made by the board which heard and saw
the witnesses live, in favor of a de novo review of a transcript of the
board's proceedings.
Judge Wedemeyer filed a dissenting opinion.
Open Meetings Law
Personnel Decisions - Dismissals - Evidentiary Hearings
State of Wisconsin ex rel.
Epping v. City of Neillsville Common Council, No. 97-0403
(filed 2 April 1998) (ordered published 27 May 1998)
Epping attacked his dismissal as the city's director of public works.
He claimed that a violation of the open meetings law occurred when the
personnel committee and the common council met in a closed session. When
it reconvened in an open session, the common council approved a motion
terminating Epping who was then given a letter of termination. The
circuit court found that no open meetings violation occurred.
The court of appeals affirmed in a decision written by Judge Dykman.
Under Wis. Stat. section 19.85(1)(b) a public entity can hold a closed
session to consider someone's dismissal only if the employee was given
actual notice of any evidentiary hearing and of any meeting at which
final action might be taken. "Thus, if no evidentiary hearing or final
action took place during the closed sessions, Epping was not entitled to
actual notice of the meetings." Although the personnel committee and the
common council "discussed" Epping's job performance and status during
the closed session, this did not convert the meeting into an
"evidentiary hearing" because no testimony was taken or evidence
admitted. Nor did the record reflect that "final action" was taken
during the closed session.
Open Records
Personnel Files - Requesters - Notice to "Targets" - Venue
Klein v. Wisconsin Resource
Center , No. 97-0679 (filed 1 April 1998) (ordered published 27
May 1998)
Two individuals committed under Chapter 980 (the Sexual Predator Act)
to the Wisconsin Resource Center (WRC) filed a request for the personnel
file of Marcia Klein, a WRC employee. The trial court denied the
request.
The court of appeals, in an opinion written by Judge Snyder,
affirmed. First, the two men were proper "requesters" as defined in Wis.
Stat. section 19.32. Despite their involuntary commitment to WRC for
treatment, they were not "incarcerated persons" and therefore ineligible
to make such requests under the statute. Second, Klein's challenge to
the release of her personnel file was proper. The reasoning of prior
case law "permits a state employee who is the 'target' of a request for
personnel records to challenge a record custodian's decision to release
such information." The court also spelled out the procedures that attend
when requests like these are made: The employer must balance the
public's interest in open records against the competing factors set
forth in the statute; in the event that disclosure is ordered, "the
individual whose privacy interests are affected must be notified and
given an opportunity to appeal the decision." Based on the record in
this case, the court of appeals agreed that the denial was
appropriate.
Finally, venue was proper in Winnebago County. Although the WRC
inmates could have brought a mandamus action in Dane County, Klein - the
"target" - was permitted to seek circuit court review in Winnebago
County. In short, such actions are not limited to Dane County.
Taxation
Sales Tax - Tax on Sale of Flexible Time-shares
Telemark Development, Inc.
v. Department of Revenue , No. 97-3133 (filed 30 April
1998) (ordered published 27 May 1998)
This case involved a time-share condominium development that is part
of a large resort complex in northern Wisconsin. Telemark Development
Inc. sells one-week time share units in the condominiums to purchasers
via land contracts and deeds conveying a fee simple interest in the
units.
Two types of time-share arrangements are available at the resort.
Under the Telemark Interval Owners Association's rules, the year is
divided into two periods: "guaranteed use periods," comprising weeks 7,
8, 26, 27, and 52, and "flexible use periods," consisting of all other
weeks of the year. Those who purchase "guaranteed" weeks are assured
occupancy in a specific condominium during the week or weeks specified
in their deeds or contracts. Purchasers of flexible time-shares,
however, have no guaranteed occupancy periods and no specified
condominium units. They must reserve a unit in advance on a "first come
- first serve" basis and, if they fail to reserve a unit in a timely
manner, they may lose use of the project for that year.
Telemark does not hold a sales tax seller's permit and did not
collect sales taxes on any of its sales of the flexible
time-shares. The Department of Revenue assessed delinquent sales taxes
against Telemark on its sales of the flexible time-shares and the Tax
Appeals Commission confirmed the assessment, concluding that the sale of
flexible time-shares is taxable under Wis. Stat. section 77.52(2)(a)1.
The circuit court affirmed, as did the court of appeals.
Section 77.52(2)(a)1 taxes the furnishing of rooms or lodging to
transients that are available to the public, including those sold as
time-shares, "if the use of the ... lodging is not fixed at the time of
sale as to the starting day or the lodging unit." In a decision authored
by Chief Judge Eich, the court concluded that the Tax Appeals
Commission's decision in this case was entitled to due-weight deference,
and it affirmed that decision to impose the sales tax on the sale of the
flexible time-shares as a reasonable interpretation and application of
the law.
Telemark also raised two constitutional claims. It argued that
section 77.52(2)(a)1, as applied to its sales of flexible time-shares,
violates the "uniformity clause" of Wisconsin Constitution, Article
VIII, section 1, which states that "the rule of taxation shall be
uniform." This argument was rejected by the court of appeals because the
uniformity clause is limited to property taxes as opposed to
transactional taxes such as those imposed on income or sales. The tax at
issue in this case was imposed on the sale of time-shares - not on the
property. The court also rejected Telemark's equal protection challenge
to the statute, concluding that Telemark had not established beyond a
reasonable doubt that the Legislature's decision to tax the sale of
flexible time-shares, while not taxing the sale of guaranteed
time-shares, results in the type of invidious discrimination the equal
protection clause is designed to protect against.
Torts
Medical Treatment - Use of FDA "Approved" Drugs/Devices for
"Unapproved" Purposes - Hospital Liability
Staudt v. Froedtert
Memorial Lutheran Hospital , Nos. 97-0192 and 97-0194 (filed 17
March 1998) (ordered published 29 April 1998)
This litigation arose out of the use of surgical screws by the
plaintiffs' respective physicians to treat the plaintiffs' back
problems. Neither of the plaintiffs was enrolled in a clinical
investigation of the screws' efficacy or safety. They claim that they
were injured as a result of the operations, and brought these actions
against the hospitals where the surgeries were performed - not
against their physicians or the manufacturer of the screws.
The plaintiffs' claims were predicated on what they contended was a
violation of the hospitals' duties to them: to tell them that the Food
and Drug Administration (FDA) had not approved the screws for the
specific procedures for which they were used; to warn them of the risks
inherent in the use of the screws; and to ensure that they were enrolled
in a clinical investigative trial before the screws would be used in the
surgeries. They conceded that the legal viability of these claims
depended upon their contention that use of the screws in their surgeries
violated the federal Food, Drug and Cosmetic Act, as amended by the
Medical Device Amendments of 1976.
On summary judgment the circuit court dismissed the claims, holding
that the hospitals were not liable to the plaintiffs because physicians
have the right, within the exercise of their medical judgment and
discretion, to use a medical device for purposes that have not been
approved by the FDA as long as the FDA has approved use of the medical
device for some purpose. In a decision authored by Judge Fine, the court
of appeals agreed. Said the court, once a drug or device has been
approved for any purpose, physicians may use that drug or device for
purposes that have not been approved.
Although hospitals must give certain information to those of their
patients participating in clinical investigations of "off-label" uses of
medical devices, the hospital need not give this information to patients
who are not part of such an investigation, even though their physicians
are treating them with the device in an identical "unapproved" way.
Moreover, the duty to get informed consent from a patient rests with the
physician and not the hospital.
The appellate court recognized that the overriding issue in this case
was whether medical decisions on how to treat patients will be made by
those patients' physicians who are, of course, subject to liability if
they commit malpractice, or whether additional layers of review should
be interposed between patient and physician. The plaintiffs were able to
cite no statute, regulation, or court decision that prevents a physician
in the course of his or her medical practice from using an approved drug
or medical device for an "unapproved" purpose. Until Congress changes
the law to prohibit the "unapproved" use of drugs or medical devices
that are approved for some purposes, or until the Legislature of this
state - if consistent with the supremacy of federal law - alters the
current calculus with respect to the use of drugs and medical devices,
responsibility for the plaintiffs' alleged injuries as a result of their
spinal operations does not lie with the hospitals in which the surgeries
were performed.
Chiropractic Malpractice - Medical Problems
Goldstein v. Janusz
Chiropractic Clinics S.C., No. 97-0326 (filed 21 April 1998)
(ordered published 27 May 1998)
The plaintiffs brought this wrongful death action against the
chiropractors who had treated a patient who later died of lung cancer.
They alleged that under Kerkman v. Hintz, 418 N.W.2d 795
(1988), the chiropractor had a duty to recognize a lung mass as an
"abnormality" and inform the patient that it was not treatable through
chiropractic means. The circuit court granted summary judgment to the
defendants.
The court of appeals, in an opinion written by Judge Curley, affirmed
and explained Kerkman's ramifications. First, under
Kerkman, chiropractors are not obligated to distinguish between
a "medical problem" and a "chiropractic problem"; rather, they have a
duty to simply determine whether the patient can be treated by
chiropractic means. Second, chiropractors are not under an obligation to
refer a patient to a medical doctor for treatment; rather, the
chiropractor need only inform the patient that the ailment is not
treatable through chiropractic means. In this case the plaintiffs
claimed that the defendant chiropractors should have recognized that a
lung mass near the spine was an "abnormality." The court of appeals
rejected this argument, however, because as a matter of law it implied
that the chiropractors should have recognized a "medical problem," which
runs counter to Kerkman. In short, the court of appeals
interprets Kerkman as holding that "chiropractors do not have a
duty to 'recognize medical problems.'" Moreover, "it is beyond the scope
of chiropractic practice to treat lung conditions, and chiropractors are
certainly not licensed to diagnose or treat lung cancer."
Prof. Daniel D. Blinka and Prof.
Thomas J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W. Wisconsin
Ave., Milwaukee, WI 53233, (414) 288-7090.
Wisconsin Lawyer