Phelps v. Physicians Ins. Co. of Wisconsin, Inc.

2005 WI 85 · Wisconsin Supreme Court · 2005

Facts

Marlene Phelps's infant son, Adam, died due to the negligence of Dr. Lindemann, an unlicensed first-year medical resident at St. Joseph's Hospital. Dr. Lindemann's insurer, PIC, failed to timely pay a jury fee, leading the circuit court to deny a motion for extension and proceed with a bench trial. The case involved disputes over the proper standard of care for the resident, the applicability of a health care services review privilege, and a cap on noneconomic damages.

Issue

Did the insurer waive its right to a jury trial by late payment of the jury fee, and was the denial of an extension for excusable neglect proper? What is the appropriate standard of care for an unlicensed first-year medical resident, and does the statutory cap on noneconomic damages apply to such a resident?

Holding

The court held that the insurer waived its right to a jury trial, and the circuit court properly denied the extension. It established that an unlicensed first-year resident is held to a standard of care applicable to their specific class, and the health care services review privilege did not apply. The court also ruled that the noneconomic damage cap does not apply to an unlicensed resident not covered by Wis. Stat. ch. 655, but remanded to determine if he was a "borrowed employee."

Rule

Failure to timely pay a jury fee constitutes waiver, and excusable neglect for an extension requires both initial neglect and no inexcusable delay in seeking enlargement. An unlicensed first-year medical resident is held to a standard of care specific to their "in training" status, requiring them to act within their authority and consult when necessary. The health care services review privilege applies only to organized programs for improving health care quality, and the noneconomic damage cap under Wis. Stat. § 893.55(4)(b) applies only to health care providers defined under Wis. Stat. ch. 655.

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