Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
| Civil Procedure | Corporations |
Criminal Law | Criminal Procedure | Employment Law | Insurance | Public Records Law | Torts |
Civil Procedure
Discovery - Attorney-client Privilege - "At Issue" Exception - "Duty
to Cooperate" Exception - Work Product
State v. Hydrite Chemical
Co., No. 96-1780 (filed 7 May 1998) (ordered published 24 June
1998)
The state sued Hydrite Chemical Co. for allegedly contaminating
groundwater and other property. Hydrite filed a third-party action
against various insurers alleging that they had a duty to defend and
indemnify Hydrite. The insurers sought the production of documents that
Hydrite asserted were protected by the attorney-client privilege and the
work product doctrine. Hydrite later filed them with the trial judge for
an in camera review. The trial judge ordered Hydrite to disclose 55
documents under the "duty to cooperate" and "at issue" exceptions to the
privilege. Although two other documents were work product, the insurers
had demonstrated "substantial need" and "undue hardship" that justified
their disclosure.
Judge Dykman, writing for the court of appeals, reversed in part and
affirmed in part. As to the work product documents, the insurers sought
notes made by Hydrite's attorney of an interview with two deceased
employees. The notes reflected no "mental impressions" by counsel "other
than the fact that the attorney decided which facts were important
enough to write down and which ones were not." Moreover, Hydrite began
its investigation in the 1980s but the insurers did not begin theirs
until 1991; thus, the notes were highly probative. Although the insurers
pierced the work product protections, the court of appeals remanded the
case for a determination of whether these same two documents also were
shielded by the attorney-client privilege.
The court next addressed the "at issue" and "duty to cooperate"
exceptions as to the 55 other documents. Initially, the court addressed
the scope of the "at issue" exception. It adopted a "restrictive view"
of the "at issue" doctrine in which "the attorney-client privilege is
waived when the privilege holder attempts to prove a claim or defense by
disclosing or describing an attorney-client communication." It rejected
a more "expansive view" in which the privilege is waived "when the
privilege holder places a claim or defense at issue and the document in
question has a direct bearing on the claim or defense, regardless of
whether the privilege holder intends to use the document to prove the
claim or defense." Based on the record, the court concluded that the
insurers failed to meet their burden of showing that the "at issue"
exception overrode the attorney-client privilege. As to the work product
doctrine, however, the court held that section 804.01(2) of the
Wisconsin Statutes is consistent with the "expansive view" of the "at
issue" exception. In short, the restrictive view applies to assertions
of the attorney-client privilege but the work product doctrine
incorporates the "expansive view."
Next, the court assessed whether a "duty to cooperate" pierced the
attorney-client privilege and the work product doctrine. The court
agreed that "the standard cooperation clause was intended to facilitate
cooperation in the defense of an underlying suit, not to benefit
insurers in a coverage dispute." A "broadly worded clause" of the type
used in these policies did not effect a waiver of either the
attorney-client privilege or the work product doctrine.
Finally, the court rejected the "common interest" exception. Under
section 905.03(4)(e) of the Wisconsin Statutes, "the common interest
exception to the attorney-client privilege does not apply when the
attorney was not retained or consulted in common by two or more
clients." Here it did not apply because Hydrite's lawyers were not
retained or consulted in common by the insurers.
Corporations
Breach of Fiduciary Duty by Directors and Majority Shareholders -
Suits by Minority Shareholders in Nonstatutory Close Corporation -
Dissolution of Corporation for "Oppressive" Conduct
Jorgensen v. Water Works
Inc., No. 97-1729 (filed 23 April 1998) (ordered published 29
May 1998)
A critical issue confronted by the court of appeals in this case was
whether the minority shareholders in a nonstatutory close corporation
have a direct action for breach of fiduciary duty by the directors and
majority shareholders that results in an injury primarily to the
minority shareholders as individuals. In a decision authored by Judge
Vergeront, the court concluded that Wisconsin has recognized such a
cause of action and that enactment of the statutory close corporations
statute did not alter that common law.
The court further concluded that its decision was not inconsistent
with its holding in Read v. Read, 205 Wis. 2d 558, 556 N.W.2d
768 (Ct. App. 1996), where it rejected an argument that the enactment of
the statute expanded the rights at common law for those close
corporations not electing statutory status. In this case the claim the
plaintiffs wished to assert as a direct action was recognized at common
law before the enactment of the close corporations statute.
The court also addressed the meaning of Wis. Stat. section
180.1430(2)(b), which provides that the circuit court may dissolve a
corporation in a proceeding by a shareholder if it is established that
the directors or those in control of the corporation have acted, are
acting, or will act in a manner that is illegal, oppressive, or
fraudulent. Specifically, the court focused on the meaning of the term
"oppressive." The term is not defined in the statutes and the court
accordingly looked for guidance to other jurisdictions that have
construed statutes providing for judicial dissolution on the grounds of
oppressive conduct.
The court found that the definition of "oppressive conduct" generally
employed for the purpose of such a statute is: "burdensome, harsh and
wrongful conduct; a lack of probity and fair dealing in the affairs of
the company to the prejudice of some of its members; or a visual
departure from the standards of fair dealing, and a violation of fair
play on which every shareholder who entrusts his money to a company is
entitled to rely." The court of appeals adopted this definition, adding
the following observations. The definition is intended to be broad and
flexible, rather than narrow. In the context of a close corporation,
oppressive conduct of those in control is closely related to breach of
the fiduciary duty owed to minority stockholders. In footnote the court
noted that the broad "burdensome, harsh and wrongful conduct" definition
it adopted includes consideration of the frustration of the reasonable
expectations of shareholders, when that is appropriate.
Finally, and also in footnote, the court observed that the statute
provides that a court may dissolve a corporation in an action
by a shareholder if statutorily specified grounds are established. It
indicated that its decision in this case should not be read as
requiring the court to grant dissolution if the plaintiffs
successfully establish oppressive conduct.
Criminal Law
Injury by Negligent Use of Dangerous Weapon - Wis. Stat. section
940.24 - Dogs as "Weapons"
State v. Bodoh,
No. 97-0495-CR (filed 13 May 1998) (ordered published 24 June 1998)
The defendant was charged and convicted after his two Rottweilers
escaped from a fenced enclosure in his yard and attacked a 14-year-old
boy on a bicycle while the defendant was out of town. The boy was
transported to the hospital by ambulance and received more than 300
stitches to close all of the wounds inflicted by the attack.
The defendant's conviction was for violating Wis. Stat. section
940.24, which codifies as a Class E felony the causation of bodily harm
to another by the negligent operation or handling of a dangerous weapon,
explosives, or fire. Pursuant to section 939.22(10), a "dangerous
weapon" includes "any device or instrumentality which, in the manner it
is used or intended to be used, is calculated or likely to produce death
or great bodily harm."
In an opinion authored by Judge Brown, the court of appeals affirmed
the conviction. The court concluded that there was sufficient evidence
from which a jury could find that the defendant used the dogs as guard
dogs and, therefore, intended them to be dangerous weapons. As such, the
law imposed a duty upon him to handle the dogs so as not to create a
substantial and unreasonable risk of death or great bodily harm to
another.
In challenging the conviction the defendant argued that it was
improper to charge him with a violation of section 940.24 where his dogs
escaped from a contained area during his absence and injured a person.
The appellate court, however, concluded that physical or temporary
proximity is not a prerequisite to the statutory requirement that the
defendant's criminally negligent "handling" of a dangerous weapon caused
the injury. Rather, once it is determined that a person intends a dog to
be a dangerous weapon, the person has the responsibility to properly
supervise the weapon. If the owner exhibits a high degree of negligence
in supervising the weapon, and the weapon injures someone as a result of
that negligence, there is exposure to criminal liability. Under this
scenario, an owner of a dog intended to be used as a dangerous weapon
does not necessarily have to be present when the harm occurs and does
not have to actively manipulate the dog in such a manner as to create an
unreasonable risk of harm to another person in order to incur criminal
liability.
In order for liability to attach, there must be evidence that the dog
was used or intended to be used by the owner as a dangerous weapon. Once
that intent is expressed, there is a duty to operate or handle that
dangerous weapon so as to avoid criminal liability. But, said the court,
a dog does not become a dangerous weapon unless the owner intends the
dog to be used as such. The court, however, issued a disclaimer as part
of its opinion. Responding to what it perceived as a possible argument
by the prosecution, the court rejected the proposition that if a dog has
attacked or bitten others or has attempted to bite others, and the owner
is aware of this, then the owner must treat the dog "as though" it were
a dangerous weapon even if the owner does not intend the dog to be
so.
Judge Snyder filed a dissenting opinion.
Criminal Procedure
Sexual Predators - "Treatability"
State v. Seibert,
No. 97-2554 (filed 27 May 1998) (ordered published 24 June 1998)
The court of appeals, in an opinion written by Judge Cane, addressed
several issues arising out of the commitment of a sexual predator. The
court held that under section 980.08(4) of the Wisconsin Statutes, the
"treatability" of an offender is not an issue. Rather, the state must
prove that the person is a "sexually violent person" who will engage in
acts of sexual violence to a substantial probability unless secured and
cared for in an institution. The court of appeals refused to distinguish
state supreme court precedent on the basis of a commitment versus
postcommitment procedural posture. The court also rejected arguments
tied to respondent's "right" to treatment.
Withdrawal of Guilty Plea - Insufficiency of Plea - Proof
Burdens
State v.
Nichelson, No. 97-3136-CR (filed 19 May 1998) (ordered
published 24 June 1998)
The defendant was convicted of sexual assault following the entry of
a no contest plea. He subsequently moved to withdraw that plea, which
motion was rejected by the circuit court. On appeal he argued that the
circuit court erred by finding that he understood the nature and
elements of the sexual assault offense when he entered his plea. In a
decision authored by Judge Myse, the court of appeals agreed because,
among other things, the state failed to establish by clear and
convincing evidence that the defendant understood the information
critical to the entry of a plea.
A two-step process is used to determine whether a defendant
voluntarily, knowingly, and intelligently entered a plea. First, the
court must determine whether the defendant has made a prima facie
showing that his plea was accepted without conformance with statutory or
other mandatory duties imposed by the Wisconsin Supreme Court and
whether he has properly alleged that he in fact did not know or
understand the information provided at the plea hearing. If the
defendant makes this initial showing, the burden then shifts to the
state, which must demonstrate by clear and convincing evidence that the
defendant's plea was voluntarily, knowingly, and intelligently
entered.
The court concluded that the defendant met his burden in this case
and the appellate opinion has significance because of its treatment of
the state's attempt to meet its burden.
The court concluded that the state can only meet its burden by
providing affirmative evidence that the defendant's plea was
voluntarily, knowingly, and intelligently entered. Where the defendant
takes the stand and testifies in such a way as to demonstrate that he or
she knew and understood the charge, the state can properly rely upon
that testimony. However, the court did not agree that a defendant's
denial, no matter how incredible, can establish that he or she both knew
and understood the constitutional rights being waived. Said the court,
it would have been absurd to place the burden of proof on the state and
then allow it to establish its case without presenting any affirmative
evidence of the defendant's then-existing mental state.
Employment Law
Deputy Sheriffs - Appeals of Disciplinary Actions - Circuit Court
Review Final
Rock County Public Safety
and Justice Committee v. Rock County Sheriff, No. 97-1621
(filed 14 May 1998) (ordered published 24 June 1998)
The Public Safety and Justice Committee of the Rock County Board of
Supervisors demoted a deputy sheriff from detective to deputy and
suspended him for 10 days without pay. The officer appealed that
determination to the circuit court pursuant to Wis. Stat. section
59.26(8)(b)6. The circuit court sustained the 10-day suspension, but
reversed the demotion.
The committee appealed to the court of appeals. The appellate court,
in a decision authored by Judge Dykman, dismissed the appeal because it
concluded that the court of appeals lacked jurisdiction to review the
circuit court's order. Pursuant to the provisions of the statute cited
above, the circuit court's decision to sustain the suspension and to
reverse the demotion are final and conclusive decisions that are not
subject to further appeal.
Wisconsin Fair Employment Act - Accommodating Criminal
Convictions
Knight v. Labor and
Industry Review Commission, No. 97-1606 (filed 13 May 1998)
(ordered published 24 June 1998)
Knight applied for a position as a district agent with Prudential
Insurance Company of America. At the time he was licensed through the
state Office of the Commissioner of Insurance to sell life, casualty,
property, accident, and health insurance and was working for a
competitor of Prudential. He did not, however, have a securities
license.
Under federal law, financial companies that sell securities
registered with the Securities and Exchange Commission (SEC) are
required to be members of the National Association of Securities Dealers
(NASD). In addition, NASD requires that all employees who participate in
a company's registered securities business must be individually
registered with NASD. There are certain statutory disqualifiers defined
by federal law that impede individual registration with NASD. One such
disqualifier is a felony conviction within 10 years prior to the NASD
application. An alternative registration process for NASD registration
is available for those who are statutorily disqualified. It is a
somewhat complex and expensive process which, if successful, results in
the employer incurring substantial additional supervisory
obligations.
Knight had a felony conviction when he applied to Prudential, which
was a member of NASD. Prudential had a policy of requiring all of its
district agents to become personally registered with NASD because they
sold securities. Prudential decided not to proceed with Knight's
application based upon a company policy of rejecting applicants who were
subject to statutory disqualification on the basis of a felony
conviction record.
Knight filed a complaint with the Wisconsin Department of Industry,
Labor and Human Relations alleging that Prudential had discriminated
against him on the basis of his conviction record and that this was a
violation of the Wisconsin Fair Employment Act (WFEA). An administrative
law judge (ALJ) concluded that Prudential had not discriminated against
Knight and further found that under WFEA, an employer is not required to
accommodate a prospective applicant's conviction record. LIRC affirmed
the decision of the ALJ as did the circuit court.
In a decision authored by Judge Snyder, the court of appeals
affirmed. In order to establish a prima facie case of employment
discrimination under WFEA, a complainant must prove, among other things,
that he or she was qualified for the position. While it is true that
Prudential can take steps on Knight's behalf to overcome the statutory
disqualification through the alternative registration process, the
availability of that process did not make Knight "qualified" for the
position.
Knight further argued that WFEA imposes a duty upon employers to take
affirmative steps to accommodate individuals with felony convictions.
More specifically, he asserted that Prudential was required to pursue
the alternative registration process on his behalf as part of the
"hiring process." The appellate court was not persuaded. Said the court,
there is nothing in the language of WFEA which states that employers
must take affirmative steps to accommodate individuals convicted of
felonies. As a result, LIRC correctly found that no such accommodation
was required, regardless of whether Knight believes that such an
accommodation would further the purpose and spirit of WFEA. Prudential
has never submitted an alternative registration application on behalf of
a job applicant and the law did not require it to do so in this
case.
Insurance
Auto Insurance - Reckless Driving - Principle of Fortuity
Becker v. State Farm Mutual
Automobile Ins. Co., No. 97-1845 (filed 28 May 1998) (ordered
published 24 June 1998)
A woman was sleeping at approximately 10 p.m. when her 10th grade
sons, Nicholas and Nathan, took her car from the driveway without her
permission. They picked up Becker at his home and then picked up
Holzhueter and two other boys at Holzhueter's home. None of the six
juveniles had a driver's license.
After driving around for awhile, the boys decided to break into a gas
station to steal some alcohol. Holzhueter stayed in the driver's seat,
and the other five boys took beer and liquor from the gas station and
put it in the trunk. They got back in the car and Holzhueter drove
away.
The boys decided to take the alcohol to Holzhueter's house. On the
way to his house, Holzhueter decided to drive through a stop sign at a
high rate of speed and jump through an intersection. The car became
airborne and went out of control upon landing. Several of the boys,
including Becker, were injured and Holzhueter was killed.
Becker brought suit against 1st Auto and Casualty Co. with whom
Holzhueter's parents had an insurance policy. 1st Auto moved for summary
judgment, arguing that public policy considerations precluded coverage.
Specifically, 1st Auto argued that coverage is precluded by the
principle of fortuity, which is also known as the principle of
fortuitousness. Under this principle insurance covers fortuitous losses,
and losses are not fortuitous if the damage is intentionally caused by
the insured. Even when the insurance policy contains no language
expressly stating this principle, courts have read it into the policy to
further specific policy objectives, including deterring crime. 1st Auto
argued that the principle of fortuity precludes coverage in this case
because both the plaintiff and the insured were involved in criminal
activity when the injuries occurred.
In a decision authored by Judge Dykman, the court of appeals
concluded that coverage in this case was not precluded by public policy.
The court believed that insurance coverage for injuries caused by
reckless driving is within the reasonable expectations of the
contracting parties to an insurance contract. In fact, Wis. Stat.
section 632.32(6)(b)4 prohibits insurers from excluding coverage on the
grounds that a vehicle is being used in a reckless manner.
1st Auto argued that the boys were involved in criminal activity
other than reckless driving at the time of the accident, such as
operating a motor vehicle without a license, using a vehicle without the
owner's permission, and transporting stolen beer and liquor. But there
was no evidence that any of these other illegal activities caused the
injuries for which Becker seeks compensation. When the Wisconsin Supreme
Court adopted the principle of fortuity, it did not conclude that public
policy prohibits coverage at any time that the insured is involved in
the commission of a criminal act. Instead, the court specifically
included the element of causation in its definition of the principle.
Insurance does not cover losses that are intentionally caused
by the insured.
In this case the fact that Holzhueter did not have a driver's license
did not constitute a cause of the accident. The police were not chasing
the boys as a result of their theft of liquor from the gas station. And
the boys were not racing home to return the vehicle before it was found
to be missing. Because Becker's injuries were caused by Holzhueter's
reckless driving, not by Becker's or Holzhueter's other criminal acts,
the trial court properly concluded that the principle of fortuity did
not preclude coverage in this case.
Public Records Law
Notice to Persons Whose Records Are to Be Released - De Novo Circuit
Court Review
Milwaukee Teachers'
Education Association v. Milwaukee Board of School Directors,
No. 97-0308 (filed 12 May 1998) (ordered published 24 June 1998)
The Milwaukee Public School System (MPS) advised several former
employees by letter that MPS had received public records requests from a
local newspaper for information regarding these employees' personnel
files relative to a district-wide criminal background check that MPS had
performed. The letter explained that each individual's name, seniority
dates, assignments, and places of assignments would be released to the
newspaper in 10 days unless the employee brought an action in circuit
court for de novo review of the decision to release the information.
These disclosures also would reveal that each employee had been fired or
quit as a result of the background investigation.
The Milwaukee Teachers' Education Association and the former
employees filed a lawsuit seeking de novo review of the decision to
release the information sought. The circuit court conducted an
evidentiary hearing but did not engage in a de novo review of the
decision to release the records. Instead, the circuit court dismissed
the complaint on the ground that the court lacked subject matter
jurisdiction to address the merits. The basis for its decision was its
interpretation of Woznicki v. Erickson, 202 Wis. 2d 178, 549
N.W.2d 699 (1996). In Woznicki the Wisconsin Supreme Court
reasoned that although the open records law does not explicitly provide
for a de novo circuit court review of a custodian's decision to release
records, this right is implicit. However, in this case, the circuit
court declined to apply Woznicki, holding that
Woznicki was limited to the factual scenario presented therein
which dealt with a district attorney as the custodian of public
records.
The court of appeals, in a decision authored by Judge Wedemeyer,
reversed the circuit court. It concluded that the circuit court's ruling
that Woznicki is limited to situations where a district
attorney acts as a records custodian was incorrect. The reasoning
throughout Woznicki is directed to custodians of all records.
See Klein v. Wisconsin Resource Center, No. 97-0679 (Wis. Ct.
App. April 1, 1998) (recommended for publication) ("We read
Woznicki as standing for the general proposition that when
access is sought under the open records law to any records which pertain
to an individual, the 'targeted' individual has a right to notification
if the record custodian agrees to release the information and the right
to seek circuit court review of that decision.")
The appellate court applied the holding in Woznicki in this
case and granted the right to judicial review to the former MPS
employees. It remanded the matter to the circuit court with directions
to conduct a de novo review, balancing the competing interests of
whether permitting inspections would result in harm to the public
interest versus the compelling public interest in allowing
inspection.
Torts
Guests of Tenants - Trespassers - Wrongful Death - Safety
Statute
Johnson v.
Blackburn, No. 97-1414 (filed 27 May 1998) (ordered published
24 June 1998)
The Mullinses leased an apartment. The lease represented that four
people would reside on the premises: the Mullinses and two named
children. Unknown to the landlord, another one of the tenant's
daughters, along with her three children, moved in with the Mullinses.
This lawsuit arose out of a fire in which one of these children died and
another was badly injured. The circuit court dismissed the claims
because these two children and their mother were trespassers and thus
the landlords owed them no duty of reasonable care.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed. It held that the children were "guests of the tenants" and
hence were not trespassers "even though their occupancy of the premises
was contrary to the lease and without the knowledge of the [landlords]."
Both children and their mother were on the premises with the express
consent of the tenants, the Mullinses. Thus, the sole issue was whether
the tenants had lawful authority to consent to their presence. The court
rejected the landlords' arguments that the Mullinses had no such
authority because they had violated the lease or because the Mullinses
were not "possessors" of the basement where the fire took the children.
The lease terms and the statutes required that the landlords provide
written notice of alleged breaches or commence termination, which they
had not done. Nor did it matter that the landlords were unaware of the
breaches. Finally, it was undisputed that the Mullinses had "authority
to access the basement" and hence they had authority to permit the
children to reside there.
The court also held that section 101.645 of the Wisconsin Statutes,
which mandates the installation of smoke detectors, is a safety statute.
Moreover, the children "were not removed from the protections provided
by sec. 101.645, Stats., simply because they were using the basement as
sleeping quarters at the time of the fire. If we were to agree that the
purpose of requiring a smoke detector in the basement is limited to
protecting those in the upstairs living quarters, we would be excluding
those persons injured by fire while in the basement doing laundry,
arranging stored items or simply passing time." Both the statute's
language and other circumstances supported the conclusion that section
101.645 creates civil liability. The court did, however, reverse the
judge's ruling that the landlords had violated the statute as a matter
of law; the case was remanded for trial.
Recreational Immunity - Recreational Activities
Lasky v. City of Stevens
Point, No. 97-2728 (filed 16 April 1998) (ordered published 24
June 1998)
The court of appeals, in an opinion written by Judge Vergeront,
affirmed a ruling that the city was immune from suit for injuries
suffered when the plaintiff fell on a bridge maintained by the city. The
injury occurred when a board cracked on a park bridge. The bridge was
used by pedestrians, skaters, and bikers. The plaintiff contended that
he was not engaged in a recreational activity because he was walking to
the bakery and a barber shop. The court agreed that "walking in a park,
in itself" does not amount to recreational activity, but the plaintiff
admitted that he "wanted to get some exercise while running his
errands." His "walking on the trail in the park is an activity that is
substantially similar to the other [statutorily] listed activities and
is therefore recreational activity." Nor was the city subject to
liability under section 81.15 of the Wisconsin Statutes; the bridge had
been "withdrawn from transportation uses and devoted to recreational
activities."
Motor Vehicles - Minor Sponsorship Statute - "Drive-by Shootings" -
Future Medical Expenses - Punitive Damages
Reyes v. Greatway Ins.
Co., No. 97-1587 (filed 27 May 1998) (ordered published 24 June
1998)
Reyes was shot during a drive-by shooting by a 17-year-old rival gang
member. He sued the shooter and the shooter's automobile liability
insurer. More precisely, Reyes claimed that the shooter's mother was an
"insured" person under the policy. And because she had signed the
application for the shooter's driver license, she was legally liable
under the sponsorship statute, section 343.15(2)(b) of the Wisconsin
Statutes. A jury awarded Reyes $350,000 in damages and $100,000 in
punitive damages. The insurer was to pay $25,000 plus costs for the
mother's liability.
The court of appeals, in an opinion written by Judge Brown, affirmed
in part and reversed in part. As to the insurer's appeal, the court held
that the sponsorship statute did not apply; hence, the mother was not
liable in the shooting. The statute predicates liability based upon the
parents' knowledge of the child's ability to drive. In this case, the
child's conduct - that is, shooting Reyes - had nothing to do with his
skill in operating the vehicle on the highway. In short, firing a
shotgun from a car into the crowd was distinct from the shooter's act of
driving.
The court reduced the award of future medical expenses from $50,000
to about $10,000 because of insufficient evidence. The court did,
however, uphold the punitive damages award. Although the shooter was
punished criminally and had no means to pay the award, the jury's
assessment of punitive damages did not violate due process
protections.
Informed Consent - Contributory Negligence
Brown v. Dibbell,
No. 97-2181 (filed 19 May 1998) (ordered published 24 June 1998)
The plaintiff underwent a bilateral mastectomy based upon the advice
of the defendant doctor. She later sued him for medical malpractice and
for failing to obtain her informed consent. The jury found that the
doctor was not negligent but that he had violated his informed consent
duties. The jury also apportioned causal negligence between the doctor
and the plaintiff at 50 percent each. Both appealed.
The court of appeals, in an opinion written by Judge Hoover,
reversed. First, the court agreed with the plaintiff that contributory
negligence did not apply to informed consent claims. Section 448.30 of
the Wisconsin Statutes normally places the duty solely on the doctor to
obtain the patient's informed consent. (The court explicitly "hesitated"
to impose an "absolute rule that a patient can never be negligent when
following what a physician represents as a viable treatment option.")
The court agreed "that a patient would not be contributorily negligent
by failing to ask a sufficient number of the proper questions or, in all
but the most extraordinary instance, by consenting to a treatment option
that a doctor presents as a viable option." As to the second issue, the
court granted the doctor's cross-appeal that the jury had not been
properly instructed on the informed consent issue. The evidence raised
exceptions within the informed consent statute that arguably excused
certain nondisclosures.
Wisconsin Lawyer
