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04/13/83 TRINITY MEMORIAL HOSPITAL CUDAHY v.

April 13, 1983

TRINITY MEMORIAL HOSPITAL OF CUDAHY, INC., A WISCONSIN NOT-FOR-PROFIT CORPORATION; ST. MICHAEL HOSPITAL OF FRANCISCAN SISTERS, MILWAUKEE, A WISCONSIN NOT-FOR-PROFIT CORPORATION; MT. SINAI MEDICAL CENTER, INC., A WISCONSIN NOT-FOR-PROFIT CORPORATION; ST. LUKE'S HOSPITAL ASSOCIATION, INC., A WISCONSIN NOT-FOR-PROFIT CORPORATION; ST. JOSEPH'S HOSPITAL OF FRANCISCAN SISTERS OF MILWAUKEE, A WISCONSIN NOT-FOR-PROFIT CORPORATION; COLUMBIA HOSPITAL, A WISCONSIN NOT-FOR-PROFIT CORPORATION; ST. MARY'S HOSPITAL OF MILWAUKEE, A WISCONSIN NOT-FOR-PROFIT CORPORATION; ST. FRANCIS HOSPITAL, INC., A WISCONSIN NOT-FOR-PROFIT CORPORATION; GOOD SAMARITAN MEDICAL CENTER, INC., A WISCONSIN NOT-FOR-PROFIT CORPORATION; ST. ANTHONY HOSPITAL OF THE ARCHDIOCESE OF MILWAUKEE, INC., A WISCONSIN NOT-FOR-PROFIT CORPORATION; AND HOSPITAL COUNCIL OF THE GREATER MILWAUKEE AREA, INC., A WISCONSIN NOT-FOR-PROFIT CORPORATION; ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ALL OTHER HOSPITALS WHICH PROVIDE EMERGENCY SERVICES TO DEPENDENT PERSONS UNDER S. 49.02, WIS. STATS., IN MILWAUKEE COUNTY AND ALL HOSPITALS WITHIN WISCONSIN WHICH PROVIDE EMERGENCY SERVICES TO DEPENDENT MILWAUKEE COUNTY RESIDENTS FOR WHICH THE HOSPITALS SEEK REIMBURSEMENT FROM MILWAUKEE COUNTY; AND RUTH CODY AND SHIRLEY KRIEGEL; ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ALL OTHER MILWAUKEE COUNTY RESIDENTS WHO QUALIFY FOR THE PROVISION OF EMERGENCY SERVICES PURSUANT TO CHAP. 49, WIS. STATS., BUT WHO ARE NOT ELIGIBLE FOR THE PROVISION OF EMERGENCY SERVICES PURSUANT TO S. 32.90, GENERAL ORDINANCES OF MILWAUKEE COUNTY, PLAINTIFFS-RESPONDENTS,
v.
MILWAUKEE COUNTY, A WISCONSIN MUNICIPAL CORPORATION; MILWAUKEE COUNTY DEPARTMENT OF SOCIAL SERVICES; AND KENNETH RAMMINGER, INDIVIDUALLY AND AS THE ACTING DIRECTOR OF THE MILWAUKEE COUNTY DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS-APPELLANTS



Appeal from a judgment of the Circuit Court for Milwaukee County: Patrick T. Sheedy, Judge.

Moser, P.j., Decker and Wedemeyer, JJ.

The opinion of the court was delivered by: Decker

Milwaukee County, its Department of Social Services and Kenneth Ramminger (appellants) appeal from a summary judgment in favor of Trinity Memorial Hospital of Cudahy (Trinity) which held Milwaukee County General Ordinance sec. 32.90 to be null and void. We agree with the trial court that the ordinance is invalid as a legislative act beyond the scope of the county's power because it abrogates a state statutory scheme and affirm.

Trinity brought suit challenging the validity of ordinance sec. 32.90. The trial court granted Trinity's motion for summary judgment, determining that ordinance sec. 32.90 conflicted with sec. 49.02(5), Stats. No facts have been presented to this court on appeal.

Section 49.02(5), Stats., provides as follows:

(5) The municipality or county shall be liable for the hospitalization of and care rendered by a physician and surgeon to a person entitled to relief under this chapter, without previously authorizing the same, when, in the reasonable opinion of a physician, immediate and indispensable care or hospitalization is required, and prior authorization therefor cannot be obtained without delay likely to injure the patient. There shall be no liability for such care or hospitalization beyond what is reasonably required by the circumstances of the case, and liability shall not attach unless, within 7 days after furnishing the first care or hospitalization of the patient, written notices by the attending physician and by the hospital be mailed or delivered to the official or agency designated in accordance with this section, reciting the name and address of the patient, so far as known, and the nature of the illness or injury, and the probable duration of necessary treatment and hospitalization. Any municipality giving care or hospitalization as provided in this section to a person who has settlement in some other municipality may recover from such other municipality as provided in s. 49.11.

We agree with the trial court that the statute sets forth four requirements that must be met before a county or municipality becomes liable for medical care rendered to the indigent:

(1) The recipient must be a "dependent person" within the meaning of sec. 49.01(4), Stats; *fn1

(2) The recipient must be "eligible" for relief under ch. 49, Stats., within the meaning of sec. 49.01(7), Stats; *fn2

(3) The physician must reasonably believe that immediate and indispensable care is required and authorization cannot be obtained without delay likely to injure the patient; and

(4) The county or municipality must be given written notice from the attending physician and the hospital itself within seven days of the first care provided. Such notices must contain the name and address of the patient, the nature of the illness or injury and the probable duration of the treatment.

Milwaukee Ordinance sec. 32.90 *fn3 placed additional restrictions upon emergency care for the indigent by, in effect, requiring that such care be rendered primarily at the Milwaukee County Medical Complex.

The appellants first contend that the county has the authority to enact an ordinance "implementing the administration" of sec. 49.02(5), Stats. We do not agree that the ordinance "implements" the statutory scheme; rather, it is inconsistent with the statute.

Prior attempts by counties to restrictively augment the plain language of secs. 49.01 and 49.02, Stats., have met with little success. In Mercy Medical Center of Oshkosh, Inc. v. Winnebago County, 58 Wis. 2d 260, 266, 206 N.W.2d 198, 200 (1973), our supreme court rejected the county's argument that a person must apply for general relief before he or she can be found to be "eligible" for emergency medical care. This court has held that dependency is not to be conditioned upon the availability to the person of the Hill-Burton Act, *fn4 or Title XIX of the ...


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