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WHA Seeks "amicus" Status in Fund Action Against Provider
Fund Attempts to Expand Provider's Liability (11/21/07)
As part of its ongoing efforts to protect Wisconsin's uniquely balanced and strong medical liability system, the Wisconsin Hospital Association on November 20 sought to file an amicus curiae or "friend of the court" brief in the Schultz v. Injured Patients and Families Compensation Fund ("the Fund") case.
As reported previously in the Valued Voice, Schultz is a Milwaukee County medical malpractice case in which the Fund, by filing a third-party complaint and cross-claim, is seeking to proceed in the nature of a plaintiff against a health care provider and the provider's insurer. The Fund is arguing that the Schultz's injuries were caused, at least in part, by negligent training and supervision by the provider and that negligent training and supervision are claims separate from claims of medical malpractice. The Fund is seeking money from the provider's professional liability and corporate general liability policies.
WHA retained experienced lawyers from the Appellate Consulting Group to prepare and submit the amicus brief. In its brief, WHA argues that Chapter 655 of the statutes is the exclusive system for resolving medical malpractice claims in Wisconsin and that such exclusivity is essential to the chapter's fulfilling its purpose. The brief underscores that the statute specifically sets out the financial obligations of the health care provider and, no less specifically, sets out the limits of the health care provider's liability. With its lawsuit, by contrast, the Fund improperly seeks to extend the financial obligations of the health care provider beyond the liability limits set out by statute. Anne Berleman Kearney of the Appellate Consulting Group summarizes the matter as follows: "We argue to the court on behalf of WHA that, as alleged, the plaintiff's claims are ones that in fact are for malpractice. If the Fund can maintain that it should receive additional monies from the health care provider by recharacterizing the claims as 'negligent supervision,' 'negligent training,' or 'negligent management,' the health care provider's liability would be expanded beyond that contemplated by the Chapter 655 system."
The brief sets forth why the Fund's actions seeking to extend the liability of the health care provider are contrary to the Chapter 655 system, which controls and limits the circumstances in which the Fund may maintain actions in its own right. The brief explains that where a health care provider or its insurer in the face of a malpractice claim has satisfied the statutory limits of health care liability, courts have not permitted the Fund to bring suit. The brief observes that this makes sense as the Fund is held in trust not only for plaintiffs, but also for health care providers. The Fund therefore has been permitted to sue health care providers only in limited circumstances insofar as necessary to ensure compliance with Chapter 655 obligations where non-compliance could materially impair the Fund.
"The potential public policy effects of the Fund's action are substantial," noted Kearney. "The Fund's actions in this case may require hospitals on a going-forward basis to obtain additional insurance to cover claims such as those alleged by the Fund--more professional liability insurance or general liability insurance plans. The longer-term effect could very well be to diminish the quality of health care provided by physicians and hospitals in Wisconsin. Should additional insurance be required, the incentive to locate and continue to provide health care services in this state would be decreased."
Watch the Valued Voice for updates on the Schultz case.
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