Case No.: |
2008AP2156 |
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Complete Title of Case: |
†Petition for Review Filed. |
Opinion Filed: |
August 11, 2009 |
Submitted on Briefs: |
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Oral Argument: |
May 21, 2009 |
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JUDGES: |
Curley, P.J., Fine and Brennan, JJ. |
Concurred: |
Fine, J. |
Dissented: |
Fine, J. |
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Appellant |
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ATTORNEYS: |
On behalf of the defendants-third-party plaintiffs-appellants, Acuity, a mutual insurance company, and Nancy Lynch, the cause was submitted on the briefs of Arthur P. Simpson and Christine M. Rice of Simpson & Deardorff, S.C., of Milwaukee, with oral argument by Arthur P. Simpson. |
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Respondent |
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ATTORNEYS: |
On behalf of the third-party
defendants-respondents, the cause was submitted on the brief of Todd M.
Weir and Jason J. Franckowiak
of Otjen, Van Ert & Weir, S.C., of |
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2009 WI App 132
COURT OF APPEALS DECISION DATED AND FILED August 11, 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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Lisa Konkel and Kevin Konkel, Plaintiffs, United Healthcare of Wisconsin, Inc., Involuntary-Plaintiff, v. Acuity, a Mutual Insurance Company and Nancy Lynch, Defendants-Third-Party Plaintiffs-Appellants, v. and Dr. Arvind Ahuja, M.D.,
Third-Party
Defendants-Respondents. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 CURLEY, P.J. Acuity, a Mutual Insurance Company, and its insured, Nancy Lynch (collectively referred to as Acuity unless otherwise specified) appeal from a summary judgment order dismissing their action against Midwest Neurosurgical Associates, S.C., and Arvind Ahuja, M.D. (collectively referred to as Dr. Ahuja unless otherwise specified). Acuity argues that it should be reimbursed for the expenses related to what it contends was an unnecessary surgery performed by Dr. Ahuja on Lisa Konkel.
¶2 At issue are the rights of an alleged tortfeasor, following Hanson
v. American Family Mutual Insurance Co., 2006 WI 97, 294 Wis. 2d 149,
716 N.W.2d 866, to recover in subrogation against a plaintiff’s health care
provider for unnecessary treatment.
Pursuant to Hanson, if a plaintiff is injured in an accident, an alleged
tortfeasor must pay for damages related to the plaintiff’s unnecessary surgery
if he or she exercised ordinary care in selecting the surgeon.
I. Background.
¶3 This appeal arises out of a motor vehicle accident on April 28, 2005, involving vehicles operated by Konkel and Lynch. Konkel and her husband filed a personal injury lawsuit against Lynch and Acuity alleging that Lynch’s negligent operation of her vehicle caused them injuries.[2] As relevant here, Konkel sought to recover damages related to a cervical decompression and arthrodesis surgery she claimed was necessitated by injuries she sustained in the accident. Konkel’s surgery was performed by Dr. Ahuja of Midwest Neurosurgical Associates, S.C.
¶4 Acuity filed a third-party complaint against Dr. Ahuja and Midwest Neurosurgical Associates, S.C., alleging that the surgery performed on Konkel was medically unnecessary.[3] In the event it was determined that Konkel exercised reasonable care in selecting Dr. Ahuja, but that the surgery was medically unnecessary, Acuity sought an award of indemnity from Dr. Ahuja and Midwest Neurosurgical Associates, S.C., for payment of all damages incurred because of the unnecessary surgery.
¶5 Dr. Ahuja moved for summary judgment, arguing: (1) that Acuity lacked standing to bring a medical malpractice action against a health care provider in Wisconsin; (2) that Acuity’s third-party claim was at odds with the purpose behind Wis. Stat. ch. 655; and (3) that Acuity’s third-party claim was barred on public policy grounds because it creates an inappropriate burden upon the physician-patient relationship. Dr. Ahuja has consistently denied that he was negligent in his treatment of Konkel, and in support of his summary judgment motion, Konkel provided an affidavit stating that she has “no complaints concerning the care and treatment Dr. Ahuja … provided [her], and continues to provide [her], as [her] treating neurosurgeon.”[4]
¶6 Acuity subsequently filed an amended third-party complaint adding a subrogation claim. Acuity asserted that it was both subrogated to the rights of Konkel and entitled to indemnity from Dr. Ahuja in the event it was determined that Konkel exercised reasonable care in selecting Dr. Ahuja, but that the surgery was medically unnecessary. Specifically, Acuity sought to recover “all damages [it] incur[s] because of the unnecessary medical surgery, including the charges for the surgery and all care related to the surgery, as well as any pain and suffering awarded by a jury because of the surgical procedure.” In opposing Dr. Ahuja’s summary judgment motion, Acuity submitted two expert reports concluding that the surgery performed by Dr. Ahuja was medically unnecessary. Prior to when Dr. Ahuja’s answer to the amended third-party complaint was due, the trial court granted his summary judgment motion. Acuity now appeals.
II. Analysis.
A. Standards of Review.
¶7 We review de novo a
trial court’s rulings on summary judgment and apply the governing standards “just
as the trial court applied those standards.” Green Spring Farms v. Kersten, 136
¶8 This appeal involves the interpretation and application of
various statutory provisions found within Wis.
Stat. ch. 655. Because statutory
interpretation presents questions of law, our review is de novo. Lornson
v. Siddiqui, 2007 WI 92, ¶14, 302
¶9 As part of our analysis, we will address whether the
application of Wis. Stat. ch. 655
to Acuity’s claim violates equal protection guarantees. “The constitutionality of a statute is a
question of law we review without deference to the [trial] court.” State v. Quintana, 2007 WI App 29,
¶19, 299
B.
¶10 As an initial matter, we note that based on the record before
us, Acuity has abandoned its claim for indemnification, and instead pursues
only its subrogation claim. See Reiman
Assocs., Inc. v. R/A Adver., Inc., 102
1. Acuity’s
subrogation claim is no longer valid.
¶11 Acuity contends that its subrogation claim in this matter has
been recognized by the common law and that it is not abolished by Wis. Stat. ch. 655. As such, Acuity
contends that it has the right to “stand in the shoes” of Konkel and seek
reimbursement for her allegedly unnecessary care. See Wilmot
v.
¶12 We conclude that Wis.
Stat. ch. 655 extinguished Acuity’s subrogation claim.
¶13 According to Acuity, this omission supports its position
insofar as there is no indication from either the notes to Wis. Stat. ch. 655 or the statutory
language itself that the legislature meant to exclude a subrogation claim
against a health care provider arising out of a payment for damages resulting
from an unnecessary surgery. In making
this argument, Acuity overlooks that ch. 655 was created in response to a
“perceived crisis in
¶14 We are not convinced that this resolution leads to a “loophole,” amounting to de facto immunity for physicians who render unnecessary care, as argued by Acuity. It remains that, pursuant to Wis. Stat. § 655.007, any “patient or the patients’ representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice” can pursue a claim in accordance with the exclusive procedures set forth in Wis. Stat. ch. 655.
¶15 Finally, Acuity contends that “the Hanson decision does not say that the innocent defendant is to be left ‘holding the bag’ without any recourse against the party who made the decision to render such treatment in the first place.” We are not persuaded by Acuity’s argument, which as restated by Dr. Ahuja, goes like this: “that questions not presented to the Hanson court provide Acuity and Lynch the right to proceed, because the questions, which were not presented, were not answered.” (Underling omitted; italics added.) Hanson does not lend any guidance on the resolution of the issues at hand and, in the absence of such guiding principles, cannot be said to support Acuity’s position.
2. Acuity alleges that
Dr. Ahuja committed medical malpractice.
¶16 In an effort to convince us that its claim for subrogation is
outside the purview of Wis. Stat. ch.
655, Acuity asserts that its claim is not a “claim for injury or death on
account of malpractice” as is required to invoke Wis. Stat. § 655.007.
Instead, Acuity describes it as a claim for reimbursement of payments
made to Konkel for damages resulting from Dr. Ahuja’s unnecessary surgery.
¶17 According to Acuity, the circumstances of its claim are
analogous to those of the patient’s claim in Northwest General Hospital v. Yee,
115
¶18 Unlike the court’s conclusion in Yee, here, despite
Acuity’s admirable efforts to avoid the medical malpractice label, we conclude
that its contention that Dr. Ahuja rendered unnecessary medical treatment
amounts to an action for medical malpractice.
See id. at 61-62 (“Initially, we would like to stress that this
court and other jurisdictions have found unnecessary and improper treatment to
constitute malpractice.”) (citations omitted); see also Deborah S.S. v. Yogesh N.G., 175
¶19 Our conclusion that Acuity is asserting a medical malpractice
claim governed by Wis. Stat. ch.
655 is further supported because, as articulated by Dr. Ahuja, “if the
third-party claim had been brought against Dr. Ahuja by Ms. Konkel, who
was Dr. Ahuja’s patient, rather than by Acuity, a third-party non-patient,
there would be no question that the amended third-party complaint, in fact, asserts
a medical malpractice claim.” (Some
uppercasing omitted.) See Wis.
Stat. § 655.006(1)(a) (“On and after July 24, 1975, every patient,
every patient’s representative and every health care provider shall be
conclusively presumed to have accepted to be bound by this chapter.”). Acuity cannot have it both ways—it wants to
stand in Konkel’s shoes and yet not be bound by the exclusive procedure that
would govern any claim against Dr. Ahuja that she could assert. “[W]here one acquires a right by subrogation,
that right is not a separate cause of action from the right held by the
subrogor.” Wilmot, 136
3. Acuity
and Lynch do not have standing to bring a medical malpractice
action
in
¶20 Dr. Ahuja challenges Acuity’s and Lynch’s standing to bring a medical malpractice claim in this matter. Wisconsin Stat. § 655.007 specifies those who are eligible to make claims for medical malpractice. It provides:
655.007 Patients’ claims. On and after July 24, 1975, any patient or the patient’s representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter.
The terms “patient” and “patient’s representative” are defined as follows:
(10) “Patient” means an individual who received or should have received health care services from a health care provider or from an employee of a health care provider acting within the scope of his or her employment.
….
(12) “Representative” means the personal representative, spouse, parent, guardian, attorney or other legal agent of a patient.
Wis. Stat. § 655.001(10), (12).
¶21 Acuity and Lynch do not fall within the definition of a patient
or a representative. Despite
distinguishable factual scenarios, recent opinions by our supreme court
evidence a restrictive approach limiting the classification of claimants to
those expressly referenced in Wis. Stat.
§ 655.007. See Czapinski,
236
¶22 Acuity and Lynch concede that they are neither patients nor
patient’s representatives; however, they seek to use this to their advantage by
asserting that they necessarily fall outside the scope of Wis. Stat. ch. 655. In Wisconsin Patients Compensation Fund v.
Continental Casualty Co., 122
4. We
decline the invitation to “equitably” consider Acuity and Lynch to
be
patients or patient’s representatives.
¶23 In an alternative argument, Acuity asserts that if Wis. Stat. ch. 655 governs its claim, Acuity and Lynch should “equitably” be considered patients or patient’s representatives due to their subrogated rights. Other than citing case law to support basic subrogation principles, Acuity offers no case law to support its request.
¶24 This request that we somehow rewrite the statutory definitions
of a patient or a representative to encompass Acuity and Lynch is not
compelling at its most basic level. See State v. Martin, 162
C. The
application of Wis. Stat. ch. 655
to bar Acuity’s subrogation claim does
not violate equal protection guarantees.
¶25 Acuity challenges the constitutionality of Wis. Stat. ch. 655 as applied to it. Specifically, Acuity argues that applying ch. 655 to preclude it from seeking recourse results in disparate treatment. It writes: “Why should the plaintiff’s doctor be protected and the tortfeasor punished when the doctor decides to recommend and render an unnecessary medical service? The classification of classes created by Dr. Ahuja’s application of Wis. Stat. [c]h. 655 is unconstitutional.” (Footnote omitted.)
¶26 To succeed on its challenge, Acuity must show that Wis. Stat. ch. 655 is unconstitutional
as it applies to it. See Quintana, 299
¶27 Acuity does not claim the classification interferes with a
fundamental right, nor does it claim a suspect class has been disadvantaged so
as to require a review of Wis. Stat.
ch. 655 with strict scrutiny. See Quintana,
299
¶28 Acuity argues that there is “no rational reason why a physician is liable when it is his patient that makes the claim, but the physician is protected when it is the tortfeasor that pays for the surgery and makes the same claim. Liability should not be dependent upon who pays for the unnecessary surgery.”[11] (Bolding in brief omitted.) Acuity further asserts:
By not allowing Acuity and Lynch to pursue their subrogation claim against Dr. Ahuja, the legislature/court is not reducing litigation against doctors or reducing the cost of medical malpractice insurance. In a situation of unnecessary surgery, either Ms. Konkel makes the claim or Acuity and Lynch make the claim. The notion that somehow the subrogation claim versus the patient’s claim for the same surgery would open the “flood gate” or create a “de facto launching pad” is irrational.
(Some uppercasing omitted.)
¶29 We are not convinced by Acuity’s assessment relating to the anticipated non-effect of allowing its claim to proceed. Based on her affidavit, it appears Konkel has no desire to pursue a claim against Dr. Ahuja. We cannot reconcile how a holding that would allow Acuity to “step into her shoes” and pursue a claim that Konkel herself does not wish to pursue would not open the flood gate to similar lawsuits.
¶30 As set forth in Strykowski, the legislative rationale behind the creation of Wis. Stat. ch. 655 was as follows:
The legislature cited a sudden increase in the number of malpractice suits, in the size of awards, and in malpractice insurance premiums, and identified several impending dangers: increased health care costs, the prescription of elaborate “defensive” medical procedures, the unavailability of certain hazardous services and the possibility that physicians would curtail their practices.
Strykowski,
81
D. Public policy considerations
support this resolution.
¶31 Acuity argues that it is against public policy to allow physicians to engage in unnecessary medical care and then “charge it off” to alleged tortfeasors. Instead of working in Acuity’s favor, however, we conclude that public policy considerations support a holding that precludes its subrogation claim.
¶32 We agree with Dr. Ahuja that if these claims are allowed to proceed, “virtually every personal injury case will involve an allegation that some of the care occasioned by the accident was malpractice and, therefore, not the responsibility of the tortfeasor.” Aside from the almost certain influx of third-party subrogation claims that would result, we are further concerned about the effect of such claims on physician/patient relationships. Konkel’s affidavit is in the record. In it, she states that she continues to receive treatment from Dr. Ahuja and has no complaints concerning the care and treatment he has provided her. She further indicates that she has “concerns that Dr. Ahuja’s presence in this lawsuit as a party may interfere with [their] physician/patient relationship.” Her concerns are legitimate. Should Acuity’s claim be allowed to proceed to trial, presumably she will be called to testify regarding his treatment of her. The nature of her testimony could subject Dr. Ahuja to additional damage claims and strain their relationship.
¶33 Like the trial court, we conclude that allowing Acuity to
proceed would “‘enter a field that has no sensible or just stopping
point.’” See Cole v. Hubanks,
2004 WI 74, ¶8, 272
¶34 For the reasons stated, we affirm the summary judgment order dismissing Acuity’s action.[12]
By the Court.—Order affirmed.
No. |
2008AP2156(CD) |
¶35 fine,
j. (concurring/dissenting). The question in this case is whether Nancy
Lynch and her insurer Acuity must, under Hanson v. American Family Mutual Insurance
Co., 2006 WI 97, 294 Wis. 2d 149, 716 N.W.2d 866, pay the allegedly
unreasonable charges billed by Midwest Neurosurgical Associates, S.C., and
Arvind Ahuja, M.D., for their treatment of Lisa Konkel, who was injured in an
accident with Lynch. Although I agree
with the Majority that Wis. Stat. ch.
655 governs Lynch’s and Acuity’s claim that they should be reimbursed by
Midwest and Dr. Ahuja for Konkel’s pain and suffering caused by any unnecessary
procedures performed by Dr. Ahuja, see
Northwest
Gen. Hosp. v. Yee, 115
¶36 There
is no doubt that if
¶37 Yee teaches
that Lynch’s and Acuity’s challenge to the reasonableness of the medical
expenses they are asked to pay is not subject to Wis. Stat. ch. 655.
Yee held that ch. 655 did not govern a patient’s claim against
her physician to recover what she asserted were unnecessary charges billed to
her by the hospital as a result of the physician’s “unreasonable, unnecessary,
and negligent” treatment. Yee,
115
¶38 As
the Majority notes, Wis. Stat.
ch. 655 was enacted to hold down the cost of health-care. We may take judicial notice that run-away
health-care expenses have wracked our society and the problem and its horrific
ramifications for the uninsured and the under-insured are only getting
worse. See Wis. Stat. Rule 902.01(2)(a),
(3), (6) (A court may take judicial notice of any “fact generally known within
the territorial jurisdiction” of the court, “whether requested or not,” and “at
any stage of the proceeding.”). Making persons
like Lynch and her insurer liable for unreasonable costs of medical care will
only make things worse—those who have carte blanche to charge what they will,
will charge what they want. This will
exacerbate the health-care crisis and make those who buy insurance and,
inevitably, the taxpayer pay ever burgeoning costs. Certainly, Konkel has no interest or
incentive to ensure that the accident-related charges by
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted. Although the surgery at issue took place in May 2006, the current version of the statutory sections cited in this opinion are the same in all relevant respects.
[2] As her husband’s claims in this matter are not an issue in this appeal, we refer to Lisa as Konkel throughout this opinion.
[3] Technically, Acuity named Midwest Neurosciences Associates, LLC, as a third-party defendant. It was later determined that Midwest Neurosurgical Associates, S.C., was the proper entity.
[4] There has been no finding that Dr. Ahuja committed malpractice.
[5] After the filing of the appeal in this case, the Konkels settled their claims against Acuity and Lynch; however, we did not allow Acuity to supplement the record with the release. In the event we deemed actual payment to be a prerequisite to its subrogation claim, Acuity sought a remand to the trial court so that a finding can be made that there has been a payment. Presumably, once such a finding is made, Acuity will appeal raising the same issues that are presently before us. Consequently, we conclude that the posture of this case and the interests of judicial economy compel us to address the merits of the issues raised.
[6] Due to the timing of the summary judgment order dismissing Acuity’s case, Dr. Ahuja did not file an answer to Acuity’s amended third-party complaint raising any defense related to Acuity’s subrogation claim or asserting that Acuity failed to state a claim upon which relief can be granted. As such, it appears that the trial court never considered whether proof of payment was required for Acuity to bring its claim against Dr. Ahuja.
[7] Chapter
655 of the Wisconsin Statutes was enacted in 1975. See
1975
[8] The notes to Wis. Stat. ch. 655 set forth the legislative findings underpinning the chapter’s enactment. The notes provide:
“Legislative findings. (1) The legislature finds that:
“(a) The number of suits and claims for damages arising from professional patient care has increased tremendously in the past several years and the size of judgments and settlements in connection therewith has increased even more substantially;
“(b) The effect of such judgments and settlements, based frequently on newly emerging legal precedents, has been to cause the insurance industry to uniformly and substantially increase the cost and limit the availability of professional liability insurance coverage;
“(c) These increased insurance costs are being passed on to patients in the form of higher charges for health care services and facilities;
“(d) The increased costs of providing health care services, the increased incidents of claims and suits against health care providers and the size of such claims and judgments has caused many liability insurance companies to withdraw completely from the insuring of health care providers;
“(e) The rising number of suits and claims is forcing both individual and institutional health care providers to practice defensively, to the detriment of the health care provider and the patient;
“(f) As a result of the current impact of such suits and claims, health care providers are often required, for their own protection, to employ extensive diagnostic procedures for their patients, thereby increasing the cost of patient care;
“(g) As another effect of the increase of such suits and claims and the costs thereof, health care providers are reluctant to and may decline to provide certain health care services which might be helpful, but in themselves entail some risk of patient injury;
“(h) The cost and the difficulty in obtaining insurance for health care providers discourages and has discouraged young physicians from entering into the practice of medicine in this state;
“(i) Inability to obtain, and the high cost of obtaining, such insurance has affected and is likely to further affect medical and hospital services available in this state to the detriment of patients, the public and health care providers;
“(j) Some health care providers have curtailed or ceased, or may further curtail or cease, their practices because of the nonavailability or high cost of professional liability insurance; and
“(k) It therefor appears that the entire effect of such suits and claims is working to the detriment of the health care provider, the patient and the public in general.”
(Quoting 1975
[9] Acuity
contends that Lund v. Kokemoor, 195
[10] In one of the expert reports submitted by Acuity in opposition to Dr. Ahuja’s motion for summary judgment, Ronald P. Pawl, M.D., opined that the surgery was both unnecessary and improper, stating:
In my opinion, the surgical procedure carried out by Dr. Ahuja constituted malpractice of the worst kind, since it was deliberate and without any foundation medically, and especially since he documented symptoms that he recognized would not respond to the surgery, but in no way attempted to find out the source of those symptoms.
Mrs. Konkel has no medical residuals from the motor accident in question, but does have residuals from the unnecessary surgery carried out by Dr. Ahuja.
[11] We
are not persuaded that the reasoning set forth in Funk v. Wollin Silo &
Equipment, Inc., 148 Wis. 2d 59, 435 N.W.2d 244 (1989), on which Acuity
relies, is analogous to the present circumstances. Funk addressed whether the
classification scheme set forth in a statute of repose controlling the time
period during which an action for injury resulting from improvements to real
property must be brought violated equal-protection guarantees. See id. at 61. Acuity also relies on Ferdon ex rel. Petrucelli,
where our supreme court invalidated the medical malpractice cap on noneconomic
damages based on its conclusion that it violated equal protection guarantees.
[12] Because
we affirm the dismissal of Acuity’s claim, we need not address the remaining
arguments presented by Dr. Ahuja. See Gross
v. Hoffman, 227
[13]
Lynch and Acuity do not argue that they may use Wis. Stat. ch. 655 to pursue their claims for money they
paid for Konkel’s pain-and-suffering caused by what they contend were Dr.