03-0580 Phelps, et al. v. Physicians Insurance Co. of Wisconsin, Inc.

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Plaintiffs, a husband and wife, sued a doctor and the hospital, alleging that while the doctor was an unlicensed, first-year resident, he negligently caused the death of their unborn child. The complaint was filed on April 14, 2000; defendants filed their answer, demanding a jury trial, on May 30, 2000; the trial court entered a standard jury trial scheduling order on July 10, 2001, directing payment of the $72 jury fee by September 1, 2001; during the summer of 2001, defense counsel was diagnosed with kidney cancer; another attorney in his office took over the file, discovered the fee deadline, and filed the payment, seven business days late, without notice to plaintiffs; more than a year later, and only two days before the scheduled jury trial, plaintiff’s raised the fee issue, demanding a bench trial.

In rejecting the defendants’ motion to extend, nunc pro tunc, the deadline to pay the fee, the circuit court appeared to base its decision on its opinion that the case was complex, and would move along better as a bench trial. The circuit court concluded that the doctor was negligent, and apportioned liability 80 percent to the doctor and 20 percent to the hospital, entering judgment against them jointly and severally in the amount of $901,015 for the plaintiffs, and $45,000 each to their two surviving children.

Whether to excuse a late payment of a jury fee is within the trial court’s discretion, and under Wis. Stat. Rule 801.15(2)(a) the standard is excusable neglect; we find that if there was neglect in failing to pay the fee on time, it was excusable.

Further, the interests of justice entitle the defendants to the nunc pro tunc relief they seek; (1) the Wisconsin constitution recognizes the “inviolate” nature of the jury trial right, and the fact that a bench trial might be easier does not trump that right, (2) there was no evidence of bad faith in the delay of payment, and (3) since both parties envisioned that the case would be tried to a jury, there was no prejudice to the plaintiffs.

Significant medical malpractice issues on remand: (1) the standard of care applicable to the doctor is that applicable to his class – unlicensed medical college graduates during residency; (2) despite our conclusion that the doctor was a “health care provider” for purposes of the confidentially rules set out in Wis. Stat. Sec. 146.8, whether an internal letter critical of the doctor’s performance is protected by Sec. 146.38 remains an open question, to be resolved by further factual findings; (3) we agree with the trial court that the cap imposed on noneconomic damages by Wis. Stat. Sec, 893.55(4) does not apply to first-year residents who are not yet licensed; (4) Wis. Stat. Sec. Ch. 655 does not bar noneconomic damages, but the validity of those damages in this case remains open on remand.

Reversed and remanded with directions.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Sullivan, J., Fine, J.

Attorneys:

For Appellant: Barrett J. Corneille, Madison; Michael S. Heffernan, Madison; John S. Skilton, Madison; Michael B. Van Sicklen, Madison; David J. Pliner, Madison; Christopher G.W. Hanewicz, Madison

For Respondent: William M. Cannon, Brookfield; Sarah E. Kaas, Brookfield