Vol. 71, No. 7,
July 1998
'97 Significant Court Decisions
Highlights of the 1997
Wisconsin Supreme Court and Court of Appeals Decisions
By Daniel W. Hildebrand
| Torts | Insurance | Children |
| Guardianship | Corporations
| Criminal Law |
| Other Significant Decisions |
Torts
Probably the most difficult decision was Estate of Makos v. Masons Health Care Fund1 concerning
the constitutionality of the statute of repose for actions against health-care
providers. The statute of repose bars medical malpractice actions commenced
more than five years from the date of the alleged act or omission without
regard to the date of discovery.2
The claim arose more than five years after the plaintiff knew or had reason
to know that she was injured as a result of medical malpractice. The court,
in a 4-2 vote, reversed the trial court's decision dismissing the claim.
Justice Steinmetz
held the statute unconstitutional beyond a reasonable doubt because it violates
procedural due process rights under the Fourteenth Amendment and the right
to a remedy guaranteed by Article I, Section 9 of the Wisconsin Constitution.
Justice Crooks, after summarizing precedent, concurred that the statute
violated Article I, Section 9, concluding that it deprived the plaintiffs
of any possibility of recovery even though a legal wrong may have been committed.
Justices Bablitch and Wilcox, concurring, held that it was not necessary
to reach constitutional issues because alleged malpractice concerning a
"diagnosis" does not come within the terms of the statute. Justice
Bradley and Chief Justice Abrahamson, although believing that the statute
produces a regrettably harsh result, concluded that the plaintiff failed
to demonstrate its unconstitutionality beyond a reasonable doubt. They also
disagreed with the concurring opinion that the statute did not apply to
negligent diagnosis claims.
In Jacque v. Steenberg
Homes Inc.3
the court upheld a $100,000 verdict for punitive damages in an intentional
trespass case where the jury awarded the plaintiffs only nominal damages
of $1. The intentional trespass occurred when the defendant moved a mobile
home across the plaintiffs' land knowing that the plaintiffs objected.
Wisconsin case law generally holds that there must be compensatory damages
in order to allow for the recovery of punitive damages. However, the court
has never directly addressed the issue as to whether nominal damages can
support a punitive damage award in the case involving intentional trespass
to land. An individual landowner's interest in protecting his or her land
from trespass is paramount. The law recognizes that actual harm occurs in
every trespass. Society has an interest in punishing and deterring intentional
trespassers beyond that of protecting the interests of the individual landowners.
When landowners have confidence in the legal system, they are less likely
to resort to "self-help" remedies.
The $100,000 punitive damage award was not excessive. The defendant's
intentional trespass reveals an indifference and a reckless disregard for
the law and for the rights of others. Despite numerous unambiguous refusals
by the plaintiffs to allow the defendant access to their land, the defendant
moved the mobile home across plaintiffs' land to save delivery costs. Deterrence
is an important factor in order to remove profit from intentional trespass.
Insurance
McEvoy v. Group Health
Cooperative4
held that the tort of bad faith can be applied to health maintenance organizations.
The court reasoned that HMOs should be treated as insurers for bad faith
purposes. Like traditional insurance companies, HMOs are required to establish
contracts with subscribers with set terms of coverage. HMOs are authorized
to engage in the insurance business and are subject to many of the same
regulations as are applicable to insurance companies. Public policy also
supports equating HMOs and insurers. Through contractual arrangements with
physicians and patients, HMOs are able to exert control over the costs of
treatment and elimination of waste. However, there is a concern that while
HMOs focus on reducing costs, there may be failures to recognize and to
protect adequately the medical needs of individual subscribers.
In some cases, there may exist a particular HMO action or omission that
may constitute both bad faith and malpractice. However, the tort of bad
faith is not designed to apply to malpractice cases arising from mistakes
made by a health-care provider in diagnosis or treatment. In this case,
the plaintiffs did not allege a malpractice action but rather alleged that
the defendant breached its contract and in bad faith denied and threatened
to deny coverage for out-of-network treatment.
Children
State ex rel. Angela M.W.
v. Kruzicki5
was a highly publicized case involving a so-called "cocaine mom."
It arose out of a motion brought by Waukesha County to acquire custody of
a viable fetus that would suffer serious harm because the mother was ingesting
cocaine and a CHIPS petition alleging that the viable fetus was in need
of protection or services because its mother was unable to provide necessary
care resulting in physical harm. The trial court ordered the pregnant woman
detained at an in-patient drug treatment facility. The issue presented was
whether a viable fetus is included in the definition of a "child"6 in the Children's
Code.
By a 4-3 vote,
the court determined that a viable fetus was not a "child" within
the meaning of the statute. Extending the statute to viable fetuses would
make other portions of the Children's Code absurd. The Code allows a child
to be taken into custody if the welfare of the child demands that the child
be immediately removed from his or her present custody. Another provision
requires a person taking a child into custody to make every effort to immediately
release the child to its parent. By reading the definition of "child"
in context with other relevant sections of the Code, the majority believed
that the Legislature intended a "child" to mean a human being
born alive.
The dissenting justices argued that the majority did not construe the
statute in accord with its legislative purpose. "Child" is defined
as a person who is less than 18 years of age. In light of medical knowledge
concerning fetal development, a child in a viable stage can and does live
separately in the womb of its mother and can live and exist as an independent
person if born in that stage. Also, this court recognized an unborn child
as a person for purposes of recovery under the wrongful death statute. This
court also has allowed consideration of a parent's prenatal conduct in making
a decision as to whether or not to terminate parental rights. The preamble
to the Children's Code expressly directs that it be liberally construed
to effect the objectives set forth by the Legislature. Interpreting the
word "child" to include a viable fetus fulfills express legislative
objectives by allowing the state to intervene to protect and care for the
physical development of an unborn child.
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