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COURT OF APPEALS DECISION DATED AND FILED February 12, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from orders of the circuit court for
Before Dykman, Lundsten and Bridge, JJ.
¶1 PER CURIAM. Steven R. Schmidt appeals from the orders of the circuit court that dismissed his claims against Froedtert Memorial Lutheran Hospital, Inc., Dr. Monica Ziebert, Dr. Carol A. Wood, GAMP (General Assistance Medical Plan) Health Services, The Commonwealth Fund, Aurora St. Luke’s Hospital, and Abbott Laboratories.[1] Schmidt argues that the statute limiting medical practice liability, Wis. Stat. ch. 655 (2007-08),[2] is unconstitutional. Because we conclude that the circuit court properly dismissed this action, we affirm.
¶2 Schmidt brought this action on behalf of his deceased son, alleging that the various defendants had engaged in medical malpractice that led to his son’s death. The underlying facts as alleged in the complaint are tragic. Schmidt’s adult son, Steven A. Schmidt, died apparently of liver and kidney failure. Schmidt alleges that his son was suffering from a non-threatening, but painful bladder condition, for which he received painkillers. He further alleges that in the days and hours preceding his son’s death, both Schmidt and his son attempted to obtain medical treatment, but that his son was told to wait for a scheduled appointment. Schmidt’s son died in his home during the early morning hours of the date of the scheduled appointment.
¶3 After the complaint was filed, the various defendants moved to dismiss. Each asserted slightly different grounds. The circuit court held a hearing on the motions. At that hearing, the court explained that the defendants moved to dismiss because Schmidt purported to bring the claims on behalf of his adult son’s estate, and in order to do this, Schmidt needed to have been appointed the personal representative of the estate. Because the estate was never probated, and because Schmidt was not appointed the personal representative of the estate, he did not have standing to bring this action. Schmidt stated that he did not know that he needed to start the probate action and be appointed personal representative in order to bring this action. The circuit court acknowledged the tremendous grief Schmidt had suffered, as well as Schmidt’s efforts to honor his son’s memory by creating a foundation in his name. The court also explained, however, that as a court, it was bound by the law, and the law required that the case be dismissed.
¶4 “Whether a claim for relief exists is a question of law which
an appellate court decides independently without deference to the trial court,
and by taking facts stated in the complaint as true.” Dziadosz v. Zirneski, 177
¶5 Under Wis. Stat. § 655.007, a patient or a patient’s representative has a direct claim for medical malpractice against a health care provider. In this case, Schmidt brought the action on behalf of his son’s estate. Schmidt does not dispute, however, that he was never appointed the personal representative of his estate. Consequently, we agree with the circuit court that he does not have standing under ch. 655 to bring a direct claim for his son’s estate against the health care providers.
¶6 Although the complaint purports only to bring a claim on
behalf of the estate, because Schmidt is acting pro se, we will also address whether he could bring a derivative
claim for loss of society and companionship against the health care
providers. The statute allows derivative
actions to be brought by “spouse, parent, minor sibling or child.” Wis.
Stat. § 655.007. This list
is exclusive. See Czapinski v.
¶7 The circuit court also dismissed the claims against GAMP, The
Commonwealth Fund, and Abbott Laboratories.
The circuit court did not specifically address the issues raised by
these defendants. In his brief to this
court, Schmidt challenges only the constitutionality of Wis. Stat. ch. 655. As noted above, this chapter applies to
health care providers. Wis. Stat. § 655.02. Because the remaining defendants are not
health care providers as defined under § 655.02, Schmidt has waived any
argument that the circuit court erred when it dismissed his claims against
them. See Reiman Assocs., Inc. v. R/A
Adver., Inc., 102
¶8 Even had Schmidt not waived the arguments against the
remaining respondents, we would affirm the decision to dismiss on the
merits. In its brief, and in its motion
to the circuit court, GAMP states that it is a program operated by the
Milwaukee County Department of Health and Human Services, and as such is not an
entity capable of being sued, and that Schmidt did not comply with the notice
of claim statute for bringing an action against it. Construing the complaint broadly to assume
that Schmidt intended to sue
¶9 The Commonwealth Fund argues that Schmidt’s claim against it were properly dismissed or, in the alternative, that it is entitled to summary judgment. The Commonwealth Fund states that while the precise basis for Schmidt’s claim against it is difficult to discern from the complaint, it appears to be based on Schmidt’s assumption that The Commonwealth Fund is an insurer. The Commonwealth Fund argues that the undisputed evidence before the circuit court established that it is not an insurer, and does not have any relationship to this case. We agree. Consequently, the circuit court properly dismissed the case against it as well.
¶10 The final defendant is Abbott Laboratories. Abbott argues that it was properly dismissed from the case because Schmidt did not state a cause of action against it. Schmidt alleged that all of the defendants were jointly and severally liable by virtue of their duty to provide healthcare to his son. Specifically as to Abbott, he alleged that it manufactures the drug Vicodin, a painkiller, and that his son died from the “effects of the long term pain medications prescribed to [his] son—mainly Vicodin.” Schmidt has not alleged that Vicodin was defective or unreasonably dangerous, or that Abbott failed to provide adequate warnings about any danger associated with the use of the drug. Schmidt has not alleged any specific cause of action against Abbott, and his claim against it was properly dismissed. For the reasons stated, we affirm the orders of the circuit court.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.