00-3943, 01-1040 Cooper v. Eagle River Memorial Hospital Inc.

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“The administrative code provisions at issue here are clearly regulatory in nature and do not reveal the clear and unambiguous language necessary to impose civil liability. Number 8.10 (2) is part of a larger chapter governing the certification of advanced practice nurses. Similarly, while Section 124.24 requires hospitals to maintain written policies, failure to comply with the provision allows the Wisconsin Department of Health and Family Services to revoke or suspend a hospital’s license. See Wis. Admin. Code sec. HFS 124.03 (6) and (7). This, too, supports the conclusion that the relevant administrative code provisions do not constitute ‘safety statutes’ as the Wisconsin Supreme Court has defined that term. Cf. Antwaun A. v. Heritage Mut. Ins. Co., 596 N.W.2d 456 (1999) (statute providing for alternative regulatory penalties did not impose new standard of civil liability).

“The problem associated with issuing a negligence per se instruction based upon alleged statutory violations is easy to identify in this case, just as it was in Leahy. A negligence per se instruction would improperly focus the jury’s attention on whether Perez complied with the licensure statute governing nurse practitioners. Instead, the appropriate inquiry should have been, as the district court instructed, whether Perez’s care for Cooper fell within the appropriate standards of care for nurse practitioners. Because the two code provisions upon which Cooper relies do not reflect the clear and unambiguous language required to warrant a negligence per se instruction, we affirm the district court’s refusal to issue one in this case.”

Affirmed.

Appeals from the United States District Court for the Western District of Wisconsin, Crabb, J., Flaum, J.