United States District Court, E.D. Wisconsin
ORDER DENYING MOTION TO DISMISS
William C. Griesbach, United States District Court Chief
Jamie Killian, who is representing himself, is proceeding on
claims that the staff at Oshkosh Correctional Institution
("OCI") were deliberately indifferent to his
medical needs following foot surgery, which resulted in him
falling in a non-handicap accessible shower, in violation of
his rights under the Eighth Amendment. He is also proceeding
on a claim that Defendant Kimberly Haase, a contract employee
who was a nurse at OCI, committed medical malpractice when
she mis-transcribed his narcotics prescription post-surgery,
which caused him to be overdosed on narcotics. He alleges the
overdose side-effects he experienced contributed to the
fall. Now before the court is Haase's motion
to dismiss Killian's medical malpractice claim. ECF No.
22. For the reasons explained below, the motion will be
awaiting foot surgery to replace a bent plate and broken
screws in his left foot, Killian was restricted by his doctor
from bearing weight on that foot and was ordered to be placed
in a cell with a handicap-accessible shower, which would
allow him to shower without placing weight on his left foot.
ECF No. 1 at 2. After two weeks of having a
handicap-accessible shower, Killian was moved into a cell
that was not. Id. at 3. Instead, Killian was given a
chair to use while in the shower. Id. Despite
complaints, Killian was not moved. Id. While this
was occurring, Killian met with a nurse practioner and
complained about foot pain. Id. at 5. The nurse
practioner increased Killian's Vicodin prescription.
Id. Defendant Haase transcribed the prescription.
21, 2014, Killian eat breakfast, took his pain medication,
and went to shower in his non-handicap-accessible shower.
Id. at 6. He fell while in the shower and was
knocked unconscious. Id. He was taken to the
hospital and diagnosed with a concussion, a cervical sprain,
and contusions on his shoulder, elbow, and foot. Id.
at 7. During medication rounds on July 26, 2014, another
nurse informed Killian that his narcotics prescription had
mis-transcribed and he was receiving twice as many pills as
he should have been. Id. at 9.
brought forth this suit alleging that the deliberate
indifference by the jail staff and the medical malpractice by
Haase caused him to fall. On January 11, 2018, Haase filed a
motion to dismiss the medical malpractice claim against her.
ECF No. 22. Haase argues that Chapter 655 of the Wisconsin
Statutes provides the exclusive remedy for any medical
malpractice claim in Wisconsin. Haase also argues that she is
not subject to Chapter 655. Therefore, she asserts that a
medical malpractice claim cannot be brought against her and
the claim must be dismissed. The matter has been fully
briefed and is ripe for decision.
motion to dismiss tests the sufficiency of the complaint to
state a claim upon which relief can be granted and does not
decide the merits of the case. Gibson v. City of
Chi., 910 F.2d 1510, 1520 (7th Cir. 1990); see
Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss
under Rule 12(b)(6), the court must accept all well-pleaded
factual allegations as true and draw all inferences in the
light most favorable to the non-moving party.
Guitierrezv. Peters, 111 F.3d 1364, 1368-69 (7th
Cir. 1997); Mosley v. Klincar, 947 F.2d 1338, 1339
(7th Cir. 1991). Rule 8(a)(2) mandates that a complaint need
only include "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). The plaintiffs short and plain
statement must "give the defendant fair notice of what
the claim is and the grounds upon which it rests."
Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555
motion to dismiss is premised on the assumption that Chapter
655 of the Wisconsin Statutes provides the exclusive remedy
for all medical malpractice claims in Wisconsin; therefore,
because Haase is not subject to Chapter 655, she cannot be
liable for medical malpractice. Haase's assumption is
1970s, the Wisconsin legislature enacted Chapter 655 to
address the perceived medical malpractice crisis.
Patients Compensation Fund v. Lutheran Hospital-La
Crosse, 223 Wis.2d 439, 452, 588 N.W.2d 35 (1998).
Chapter 655 creates a statutory scheme that established a
mandatory amount of primary insurance coverage that health
care providers must maintain; it also created a Compensation
Fund that health care providers pay into yearly, which serves
as an excess liability insurance carrier. Id. In
establishing the statutory scheme, the legislature defined
who was required to participate-by defining "health care
provider." Wis.Stat. §§ 655.01; 655.02. The
Wisconsin Supreme Court has explained that '"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." Phelps v.
Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶
64, 319 Wis.2d 1, 768 N.W.2d 615 (citing Finnegan v. Wis.
Patients Comp. Fund, 2003 WI 98 ¶ 22, 263 Wis.2d
574, 666 N.W.2d 797) (emphasis added). Therefore, if an
individual is a "health care provider" or the
employee of a "health care provider, " they are
subject to Chapter 655, which governs any medical malpractice
claim brought against them.
argues that Chapter 655 is the exclusive method to bring a
medical malpractice suit in Wisconsin and, therefore, because
she is not subject to Chapter 655, she cannot be subject to a
medical malpractice lawsuit. Haase's interpretation
operates from the assumption that Chapter 655 established a
medical malpractice cause of action in Wisconsin and
therefore, the only way one may bring a medical
malpractice claim is through Chapter 655. That assumption is
malpractice claims are claims of "negligent medical acts
or decisions made in the course of rendering professional
medical care." McEvoy v. Group Health Coop.,
213 Wis.2d 507, 530, 570 N.W.2d 397 (1997). Therefore,
medical malpractice claims are grounded in Wisconsin
negligence common law: "In 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 . . . ." Estate of Hegarty
v. Beauchaine, 2006 WI.App. 248, ¶ 153, 297 Wis.2d
70, 727 N.W.2d 857 (2006) (emphasis added). This conclusion
is supported by the history of Chapter 655 clearly shows that
Wisconsin legislature was not concerned about creating a
cause of action for medical malpractice. Instead, it was
concerned about controlling medical malpractice claims and
the '"sudden increase in the number of malpractice
suits, in the size of awards, and in malpractice insurance
premiums.'" Czapinski v. St. Francis Hosp.,
236 Wis.2d 316, 326, 613 N.W.2d 120 (2000) (citing State
ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 509, 261
N.W.2d 434 (1978)). Stated another way, Chapter 655 was
created to provide limitations on medical malpractice claims,
not to establish it as a cause of action.
there are a number of individuals that Chapter 655 does not
apply to. It does not apply to public employees that work for
a governmental agency. Wis.Stat. § 655.003. Similarly,
there are individuals who may provide medical care but who do
not qualify as a "health care provider, " like
nurses, that would not be subject to Chapter 655 unless ...