Wisconsin SC reverses bystander's award for emotional distress.

Chris Rizo Jul. 10, 2009, 3:34pm

Patience Roggensack

Ann Walsh Bradley

MADISON, Wis. (Legal Newsline) -- The Wisconsin Supreme Court on Friday ruled that the state's medical malpractice law does not allow bystanders to seek damages for emotional distress.

The high court's 5-2 decision tossed out a lower court's $200,000 award to a father who watched one of his twin sons die during birth in 1998.

A trial, Milwaukee Circuit Court Judge John Franke in 2003 awarded Gregory Phelps of Pewaukee, Wis., the damages as part of a $990,000 wrongful death and medical malpractice case his family won.

Phelps's wife was being treated at St. Joseph's Hospital in Milwaukee by an unlicensed resident physician. The other twin, Kyle, survived.

Gregory and Marlene, along with their two surviving children, Kyle and Caroline, sued Dr. Matthew Lindemann and his insurer, Physician's Insurance Company of Wisconsin, St. Joseph's, St. Joseph's insurer, and the Affiliated Hospitals entity, alleging negligence, loss of society and companionship, wrongful death and negligent infliction of emotional distress.

Court papers say that the couple's baby was pronounced dead as a result of asphyxia.

In the majority opinion, Justice Patience Roggensack said the medical resident, who was in a Medical College of Wisconsin training program, was acting as an employee of the hospital and was therefore covered by the malpractice law.

The justice noted that the state medical malpractice law makes no mention of allowing for emotional distress claims by bystanders.

"We conclude that Lindemann was a borrowed employee of St. Joseph's, and was therefore an employee of a health care provider under ch. 655. As a result, ch. 655 governs Gregory's claim," Roggensack wrote. " We further conclude that ch. 655 does not permit claims arising from medical negligence other than those listed in Wis. Stat. §§ 655.005(1) and 655.007, and the negligent infliction of emotional distress to a bystander is not one of those claims. Therefore, Gregory's claim is not actionable under Wisconsin law."

In a dissent Justice Ann Walsh Bradley said Phelps should receive damages for emotional distress.

"Phelps witnessed the spontaneous delivery of Adam," she wrote. "He witnessed the injuries and death of his son. I conclude that Phelps had a firsthand observation of the traumatic, injury-producing event."

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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