United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Damien Smith is proceeding on claims that staff at the New
Lisbon Correctional Institution failed to give him
appropriate treatment after he broke his hand in May 2014,
thus violating his rights under the Eighth Amendment and
state negligence law. On September 21, 2017, Judge Barbara B.
Crabb granted in part and denied in part the motions for
summary judgment filed by defendants, concluding that there
were genuine disputes of material fact with respect to
Smith's claims against state defendants Angela Stetter
and Anthony Hentz, and privately employed defendant Annette
Zaripov-Brand. Dkt. 111. Judge Crabb then granted Smith's
motion for assistance in recruiting counsel to represent him
at trial, and the court recruited lawyers from Quarles &
Brady, LLP to represent Smith. On December 19, 2017, this
case was reassigned to me for further proceedings, including
the jury trial scheduled for October 9, 2018.
before the court are defendants' motions for leave to
file motions to dismiss Smith's medical malpractice
claims, Dkt. 138 (Stetter and Hentz), 141 (Zaripov-Brand), as
well as the motions to dismiss. Dkt. 139 (Stetter and Hentz),
142 (Zaropiv-Brand). Defendants argue that Smith's
medical malpractice claims should be dismissed because all of
the remaining defendants are registered nurses and Wisconsin
law does not permit medical malpractice claims against nurses
grant defendants' requests for leave to file their
motions, as their argument that Smith has failed to state a
claim for medical malpractice is one that can be raised at
any time. Fed.R.Civ.P. 12(h)(2). As for the motions to
dismiss, I will deny the motions for the reasons below.
premise of defendants' motions is that Wisconsin Statutes
Chapter 655 provides the “exclusive” means of
raising a medical malpractice claim under Wisconsin law. Dkt.
140 at 4 (arguing that Chapter 655 “govern[s] who may
(and may not) be sued under Wisconsin law for medical
malpractice”). Defendants further argue that because
Chapter 655 does not permit medical malpractice claims
against nurses directly, Smith's medical negligence
claims against defendants Stetter, Hentz or Zaripov-Brand
must be dismissed.
interpretation of Chapter 655 is only partially accurate.
Chapter 655 sets forth a broad legislative scheme regulating
medical malpractice actions, including procedural
requirements for bringing claims, insurance obligations, and
the creation of the Injured Patients and Families
Compensation Fund. Wisconsin Med. Soc'y, Inc. v.
Morgan, 2010 WI 94, ¶ 11, 328 Wis.2d 469, 787
N.W.2d 22. Defendants are correct that Chapter 655 is
intended to provide the “exclusive procedure and
remedy” for medical malpractice claims brought against
medical care providers who are covered by the chapter.
However, Chapter 655 does not apply to all individuals who
provide medical care. Instead, Chapter 655 applies to
“health care providers” and
“employees” of health care providers, as those
terms are defined in the statute. See Phelps v.
Physicians Ins. Co. of Wisconsin, 2009 WI 74, ¶ 64,
319 Wis.2d 1, 768 N.W.2d 615 (Phelps II) (“Chapter 655
constitutes the exclusive procedure and remedy for medical
malpractice in Wisconsin against health care providers, as
that term is defined in Wis.Stat. § 655.001(8), and
their employees.”) (citation omitted) (emphasis added).
Thus, if a named defendant meets the definition of
“health care provider” or “employee”
of a health care provider, the procedures and remedies set
forth in Chapter 655 govern any medical malpractice claim
brought against the defendant.
individuals who provide medical care but who do not qualify
as “health care providers” or
“employees” of a health care provider under the
definition in Chapter 655 are not covered by the statute.
Phelps v. Physicians Ins. Co. of Wisconsin, 2005 WI
85, ¶ 62, 282 Wis.2d 69, 698 N.W.2d 643 (Phelps I)
(explaining that provisions of chapter “cannot be
applied to a non-chapter 655 case or non-chapter 655 health
care provider”). Thus, in Phelps I, the Wisconsin
Supreme Court concluded that the provisions of Chapter 655
would not apply to a medical malpractice claim brought
against a first-year resident, because he was not a licensed
physician who qualified as a “health care
provider” under Chapter 655, unless the resident was as
an “employee” of a health care provider.
Id. This was significant in Phelps I, because
without the protections of Chapter 655, the resident would
not be covered by the Injured Patients and Families
Compensation Fund, would not be protected by the medical
malpractice damage caps and could face a claim for negligent
infliction of emotional distress to a bystander, a claim not
allowed under Chapter 655. Id. at ¶ 64. The
Court remanded the case to the circuit court to consider the
question whether the resident qualified as a “borrowed
employee” of the hospital at which he worked.
Id. at ¶ 65. In a later decision, the Court
concluded that the resident qualified as a “borrowed
employee” and was covered by Chapter 655. Phelps II,
2009 WI 74, ¶ 57.
relevant in this case, it is well-established that Chapter
655 does not generally apply to state employees. Wisconsin
Med. Soc'y, 2010 WI 94, ¶ 10 (noting that provisions
of Chapter 655 are not applicable to “state, county, or
municipal employees, or federal employees”) (citing
Wis.Stat. § 655.003)); Rouse v. Theda Clark Med.
Ctr., Inc., 2007 WI 87, ¶ 50, 302 Wis.2d 358, 735
N.W.2d 30 (Abrahamson, C.J. dissenting); Suchomel v.
Univ. of Wis. Hosp. & Clinics, 2005 WI.App. 234,
¶¶ 26-28, 288 Wis.2d 188, 708 N.W.2d 13; Coe v.
Cty. of Wood, 168 Wis.2d 359, 485 N.W.2d 839 (Ct. App.
1992) (unpublished). Thus, medical malpractice claims against
state employees are not governed by Chapter 655, but are
instead controlled by other statutes applicable to medical
malpractice claims generally, and to claims against state
employees in particular. See, e.g., Wis.Stat. §§
893.82 (procedures governing claims against state employees);
893.55 (medical malpractice statute of limitations); see
also Estate of Radley ex rel. Radley v. Ives, 2007
WI.App. 19, ¶ 6, 298 Wis.2d 551, 727 N.W.2d 375
(applying former notice-of-claim statute, Wis.Stat. §
893.82(2m), to medical malpractice claim against nurses
employed by state); Lamoreux v. Oreck, 2004 WI.App.
160, ¶ 50, 275 Wis.2d 801, 828, 686 N.W.2d 722, 735
(dismissing “medical malpractice action” brought
against state employee because plaintiff failed to satisfy
the notice-of-claim requirements under Wis.Stat. §
893.82(3), in effect at the time); McCullough v.
Lindblade, 513 F.Supp.2d 1037, 1038 (W.D. Wis. 2007)
(applying notice-of-claim requirements to “medical
malpractice” action brought against physician employed
by state); Rice v. Sielaff, 2006 WI.App. 101, 293
Wis.2d 361, 715 N.W.2d 240 (same).
“nurses” are not “health care
providers” subject to individual liability under the
statute. Wis.Stat. § 655.002(1); Patients Comp Fund
v. Lutheran Hosp.-La Crosse, Inc., 216 Wis.2d 49, 56,
573 N.W.2d 572, 575 (Wis. Ct. App. 1997). A claim of medical
negligence against a nurse who is an “employee”
of a “health care provider” is still governed by
Chapter 655, however, as providers are required to maintain
insurance to cover employees who are not obligated to
maintain their own insurance. Patients Comp. Fund, 216 Wis.2d
at 56, 573 N.W.2d at 575. Thus, if an injured claimant
alleges that a nurse employed by a “health care
provider” was negligent, the claimant could name the
nurse's employer or the employer's insurer as a
defendant. Wis.Stat. § 655.23(5); Rogers ex rel.
Rogers v. Saunders, 2008 WI.App. 53, ¶ 2, 309
Wis.2d 238, 241, 750 N.W.2d 477, 479 (“[A] nurse
employed by a health care provider (as defined by the
chapter) has no personal exposure for malpractice liability.
Rather, any negligence on the part of the nurse is included
in the liability limit of the health care provider and is
covered by the provider's insurance.”).
their motions to dismiss, defendants argue that Smith's
state law claims should be dismissed because, as nurses, they
cannot be subjected to medical malpractice lawsuits under
Chapter 655. With respect to the state defendants'
motion, however, their citation to Chapter 655 missed the
point. Defendants are correct that they are not covered by
Chapter 655, but that is because no state employee is covered
by that chapter. Defendants are neither “health care
providers” nor employees of a “health care
provider.” But this just means that Smith's medical
malpractice claim proceeds as a “non-Chapter 655 case,
” to borrow the Court's phrase from Phelps I, 2005
WI 85, ¶ 62, subject to the particular rules and
restrictions that apply to claims against state employees
generally. The fact that defendants are not covered by
Chapter 655 does not mean that Smith has no cause of action
against them. Defendants understandably cite Northern v.
Frisk, No. 13-cv-367, 2017 WL 2589426 (W.D. Wis. June
14, 2017), in support of their position, but that decision
was based on the briefs and arguments provided by the parties
in that case. It does not necessarily foreclose medical
negligence claims brought against nurses employed by the
state, particularly now that the issue is pointedly
courts make clear that a claim for “medical
malpractice” is simply a claim that that a medical care
provider's actions fell below the requisite standard of
care. See, e.g., McEvoy by Finn v. Grp. Health Co-op. of
Eau Claire, 213 Wis.2d 507, 529-30, 570 N.W.2d 397, 406
(1997) (describing “medical malpractice” as
“negligent medical acts or decisions made in the course
of rendering professional medical care”). Thus,
regardless whether the medical malpractice claim is brought
against an individual covered by Chapter 655 or an individual
falling outside Chapter 655, the underlying claim is governed
by common law negligence standards. As the Wisconsin Court of
Appeals has explained, “[i]n a medical malpractice
claim, like in any negligence claim, the plaintiff must
establish (1) a breach of (2) a duty owed (3) that results in
(4) an injury or injuries, or damages, i.e., a negligent act
or omission that causes an injury.” Estate of
Hegarty ex rel. Hegarty v. Beauchaine, 2006 WI.App. 248,
¶ 153, 297 Wis.2d 70, 159, 727 N.W.2d 857, 900 (emphasis
added) (citing Paul v. Skemp, 2001 WI 42, ¶ 17,
242 Wis.2d 507, 520, 625 N.W.2d 860, 865). Stapleton v.
Warner, No. 2012AP2336, 2013 WL 12183674, at *1 (Wis.
Ct. App. Sept. 10, 2013) (unpublished) (applying same
standards to negligence claim brought against prison nurses).
In short, although defendants Stetter and Hentz are not
subject to the requirements of Chapter 655, Smith may still
bring a medical malpractice claim based on common law
negligence. To conclude otherwise would be to leave patients
injured by the negligent actions of state-employed nurses
without any remedy at all, a conclusion this court will not
reach without clear guidance from the Wisconsin legislature
or Wisconsin state courts.
defendant Zaripov-Brand, who was employed by private company
TotalMed Staffing, Inc., Smith's medical malpractice
claim may fall under Chapter 655. In particular, if TotalMed
Staffing qualifies as a “health care provider, ”
it may be that Smith needed to follow the procedural
requirements of Chapter 655 and seek recovery from
Zaripov-Brand's employer or the employer's insurer.
However, Zaripov-Brand has provided no information about
TotalMed Staffing from which I could conclude that she was an
“employee” of a “health care
provider” within the meaning of ...