PUBLISHED OPINION
Case No.: 94-2490
†Petition for
Review filed.
Complete
Title
of
Case:DELORES HOFFMAN,
INDIV. AND AS
SPECIAL ADMINISTRATOR OF THE
ESTATE OF RICHARD HOFFMAN (DECEASED),
Plaintiff-Respondent, †
v.
MEMORIAL HOSPITAL OF IOWA COUNTY
AND WISCONSIN PATIENTS COMPENSATION FUND,
Defendants,
EVERETT R. LINDSEY, M.D.
AND TIMOTHY A. CORRELL, M.D.,
Defendants-Appellants.
Submitted
on Briefs: June 13, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: August 24, 1995
Opinion
Filed: August
24, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Moria
Krueger
so
indicate)
JUDGES: Eich, C.J., Dykman and Sundby, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendants-appellants the
cause was submitted on the briefs of Steven C. Zach of Boardman,
Suhr, Curry & Field of Madison, and Jeanne M. Armstrong of Bell,
Metzner, Gierhart & Moore of Madison, and Stephen O. Murray of Otjen,
Van Ert, Stangle, Lieb & Weir, S.C. of Madison.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of Sean N. Duffey of Schulz &
Duffey, S.C. of Milwaukee and Robert A. Pretto of Madison.
|
COURT OF APPEALS DECISION DATED AND RELEASED August
24, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2490
STATE OF WISCONSIN IN
COURT OF APPEALS
DELORES
HOFFMAN, INDIV. AND AS
SPECIAL
ADMINISTRATOR OF THE
ESTATE
OF RICHARD HOFFMAN (DECEASED),
Plaintiff-Respondent,
v.
MEMORIAL
HOSPITAL OF IOWA COUNTY
AND
WISCONSIN PATIENTS COMPENSATION FUND,
Defendants,
EVERETT
R. LINDSEY, M.D.
AND
TIMOTHY A. CORRELL, M.D.,
Defendants-Appellants.
APPEAL
from an order of the circuit court for Dane County: MORIA KRUEGER,
Judge. Reversed and cause remanded
with directions.
Before
Eich, C.J., Dykman and Sundby, JJ.
DYKMAN,
J. We granted Doctors Everett R.
Lindsey and Timothy A. Correll's petition for leave to appeal a trial
court order denying their motions for a change of venue. Section 808.03(2), Stats. The court
concluded that § 655.009(3), Stats.,[1]
determines venue in actions against health care providers. It further concluded that § 801.52, Stats.,[2]
which provides for a discretionary change of venue, was inapplicable to those
actions. Because we conclude that
§ 801.52 is applicable to actions against health care providers, we
reverse and remand with directions that the trial court may exercise its
discretion under § 801.52 to determine venue in this case.
BACKGROUND
Delores
Hoffman sued Doctors Lindsey and Correll, Memorial Hospital of Iowa County and
Wisconsin Patients Compensation Fund, alleging that their negligent medical
care caused the death of her husband, Richard Hoffman. Although her cause of action arose in Iowa
County, she commenced her suit in Dane County because she lives there. The doctors moved under § 801.52, Stats., to change venue to Iowa County,
alleging that they, the nurses who cared for Richard Hoffman, and other
hospital personnel would be inconvenienced by having to travel to Madison for a
trial. The trial court denied their
motion because it concluded that § 655.009(3), Stats., did not provide for a discretionary venue change, and
therefore, § 801.52 was inapplicable to actions against health care
providers.
VENUE
Because
this case is decided by our interpretation of statutes, a matter which is a
question of law, we review the trial court's decision de novo. State ex rel. Frederick v. McCaughtry,
173 Wis.2d 222, 225, 496 N.W.2d 177, 179 (Ct. App. 1992). Section 801.50, Stats., is the general venue statute used to determine the
place of trial. However,
§ 801.50(2) states, "Except as otherwise provided by statute,"
indicating that § 801.50 is not the only venue statute. The 1983 Judicial Council Committee's Note
to § 801.50 identifies a list of some thirty-four separate venue statutes,
including § 655.009, Stats.[3] Hoffman asserts that because
§ 655.009(3) provides otherwise, and fails to include a discretionary
change of venue provision, discretionary changes of venue are not available in
actions against health care providers.
We view the statutory scheme differently.
In
most cases, § 801.50, Stats.,
determines the venue of a lawsuit. But
there are many exceptions to § 801.50, and each one serves as a basis for
determining venue in a particular case.
Ordinarily, that ends the matter.
However, when it is necessary "in the interest of justice" or
"for the convenience of the parties or witnesses," § 801.52, Stats., permits a trial court in its
discretion to change the venue of an action.
Hoffman
argues that this interpretation is incorrect for several reasons. First, she notes that § 801.01(2), Stats., provides that § 801.52, Stats., and all other provisions of
chs. 801 to 847, Stats., govern
procedure and practice in trial courts "except where different procedure
is prescribed by statute or rule."
She concludes that § 655.009(3), Stats.,
constitutes such an exception, and therefore § 801.52 is inapplicable to
actions governed by ch. 655, Stats. But this construction is inconsistent with
§ 801.50, Stats. In our view, the "different
procedure" is not ch. 655's lack of a discretionary change of venue
statute but its provisions for venue.
In other words, the legislature's failure to insert a discretionary
change of venue statute in ch. 655 is not a directive that no discretionary
change of venue is available.
Indeed,
the legislature has considered this situation.
Section 779.20(2), Stats.,
provides in pertinent part: "In
actions appealed from municipal court no change of venue shall be allowed
except for prejudice of the judge or of the people." Had the legislature intended that no
discretionary change of venue was permitted in actions against health care
providers, it would have done as it did in § 779.20. There are many venue statutes and it is
difficult to imagine that the legislature intended that in all of them,
discretionary venue change was unavailable.
A more logical interpretation is that the legislature intended that all
venue statutes be subject to § 801.52, Stats.,
except where otherwise provided.
Hoffman
also contends that case law supports her position. She notes that in Rineck v. Johnson, 155 Wis.2d
659, 668, 456 N.W.2d 336, 341 (1990), cert. denied, 498 U.S. 1068
(1991), overruled on other grounds by Chang v. State Farm Mut.
Auto. Ins. Co., 182 Wis.2d 549, 566, 514 N.W.2d 399, 405 (1994), the
supreme court concluded that the limit on damages for society and companionship
found in the wrongful death statute, § 895.04(4), Stats., did not apply to medical malpractice actions. There, the court said, "We do not
believe that the legislature would have taken pains to specifically refer to
particular statutes such as these if it intended to incorporate without mention
other miscellaneous general provisions, such as sec. 895.04(4)." Id. at 667, 456 N.W.2d at
340. Hoffman's argument was enhanced by
Dziadosz v. Zirneski, 177 Wis.2d 59, 63, 501 N.W.2d 828, 830 (Ct.
App. 1993), where we said: "The
language of the court's holding in Rineck is clear and
concise: Chapter 655 governing medical
malpractice actions precludes from application those statutory provisions not
expressly referred to in that chapter. See
Rineck, 155 Wis.2d at 666-67, 456 N.W.2d at 340."
The
supreme court followed Rineck in Jelinek v. St. Paul Fire
& Casualty Ins. Co., 182 Wis.2d 1, 512 N.W.2d 764 (1994). The court quoted Rineck,
noting: "Chapter 655 sets tort
claims produced by medical malpractice apart from other tort claims, and
parties are conclusively presumed to be bound by the provisions of the chapter
regardless of injury or death." Id.
at 9, 512 N.W.2d at 767 (quoting Rineck, 155 Wis.2d at 665, 456
N.W.2d at 339).
But
Rineck, Dziadosz and Jelinek were
followed by Estate of Wells v. Mount Sinai Medical Ctr., 183
Wis.2d 667, 515 N.W.2d 705 (1994), where the supreme court considered whether
it should extend recovery rights to the parents of negligently injured adult
children, expanding the court's earlier decision to permit parents of
negligently injured minor children to recover damages for the loss of
their children's society and companionship.
Wells was a medical malpractice action. Accordingly, the provisions of ch. 655, Stats., seemed to be applicable. But the court said:
Because
petitioner alleges that Wells's injuries resulted from medical malpractice, her
loss of society and companionship claim is governed by Chapter 655. Unfortunately, Chapter 655 is silent with
respect to who can maintain such a claim, and under what conditions.
....
This lack of
statutory guidance does not, however, prevent this court from acting. As we explained in Shockley,
the rules against recovery for loss of society and companionship were created
by the courts, and it is our responsibility, as much as it is the
legislature's, to continue to shape this area of the law.
Id. at 674, 515 N.W.2d at 708 (citation and footnote omitted).
Had
the supreme court interpreted Rineck as it did in Jelinek
and as did the court of appeals in Dziadosz, it would have
concluded that the legislature's silence in ch. 655, Stats., on the question of recovery for injury to adult
children meant that the legislature intended that the plaintiff could not
recover. But the court did not choose
that avenue. Instead, it reasoned that
the legislature's silence in ch. 655 did not prevent the court from
acting.
It
is not possible to reconcile Dziadosz's view of Rineck with
Wells. Wells,
Jelinek and Rineck are supreme court cases. When decisions of the supreme court appear
to be inconsistent, we follow that court's most recent case. Betthauser v. Medical Protective Co.,
164 Wis.2d 343, 350, 474 N.W.2d 783, 786 (Ct. App. 1991), aff'd, 172
Wis.2d 141, 493 N.W.2d 40 (1992). That
case is Wells.
Hoffman attempts to distinguish Wells by
noting that it involved a common law claim, which the court, having created,
was free to change, while § 655.009(3), Stats.,
is a legislatively created provision, not susceptible to judicial
amendment. But there are two problems
with this argument. First,
§ 751.12, Stats., permits
the supreme court to promulgate rules of pleading, practice and procedure in
Wisconsin's courts. The issue of venue
in Wisconsin courts relates to practice and procedure. Indeed, the supreme court adopted
§ 261.04, Stats., 1943,
pertaining to changes of venue, effective July 1, 1942. See 239 Wis. v, vi (1942). Thus, Hoffman's assertion that the venue
provision found in § 655.009(3) is legislative and therefore not subject
to judicial revision is not correct. Wells
cannot be distinguished on the basis of the legislative history of
§ 655.009(3).
Moreover,
like the rules against recovery for loss of society and companionship at issue
in Wells, the doctrine of forum non conveniens is a common
law doctrine. The Judicial Council
Committee's Note to 1983 Wis. Act 228, § 10 reads: "[Section 801.52, Stats.,] permits the court to apply
traditional forum non conveniens principles to requests for
discretionary change of venue." Wells
cannot be distinguished on a perceived distinction between the origin of rules
against recovery for loss of society and companionship of adult children and
the origin of § 801.52.
If
we accept the view that ch. 655, Stats.,
is self-contained, subject to no outside rules of practice and procedure, there
would be no discovery, summary judgment, or amendment of pleadings in medical
malpractice cases because ch. 655 does not mention these procedures. Hoffman argues that these procedures are
permitted in medical malpractice actions because they are not inconsistent with
ch. 655. But, as we have already
explained, § 801.52, Stats.,
is not inconsistent with § 655.009(3), Stats.,
either.
Hoffman
contends that we should disregard the trial court's decision even if we
conclude that it is error because the doctors' substantial rights have not been
affected. Section 805.18(1), Stats.
But this is an interlocutory appeal.
We do not know whether the doctors' rights have been substantially
affected. Nor will the trial court have
to make this determination, because we remand this case to the trial court to
determine whether to grant Doctors Lindsey and Correll's motions for a change
of venue under § 801.52, Stats.
By
the Court.—Order reversed and
cause remanded with directions.
[1] Section 655.009(3), Stats., provides:
Venue in a court
action under this chapter is in the county where the claimant resides if the
claimant is a resident of this state, or in a county specified in s.
801.50(2)(a) or (c) if the claimant is not a resident of this state.