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2008AP2156 Konkel v. Acuity

By: dmc-admin//August 17, 2009//

2008AP2156 Konkel v. Acuity

By: dmc-admin//August 17, 2009//

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Torts
Medical malpractice; subrogation

A tortfeasor cannot seek subrogation from the plaintiff's treating physician for costs incurred via unnecessary medical treatment.

"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 Wis. 2d at 63. If Acuity wants to step into Konkel's shoes, the nature of the action remains the same as if Konkel had pursued it herself. See id. ('[S]ubrogation confers no greater rights on the subrogee than the subrogor had at the time of the subrogation. Accordingly, the identity of a cause of action is not changed by the subrogation, and no new cause of action is created thereby.') (citation omitted). Based on the foregoing, the dissent's position that Acuity's claim for reimbursement of expenses related to what it contends was an unnecessary surgery performed by Dr. Ahuja is not subject to Wis. Stat. ch. 655 is misguided as this case clearly implicates ch. 655."

Affirmed.

Recommended for publication in the official reports.

2008AP2156 Konkel v. Acuity

Dist. I, Milwaukee County, Foley, J., Curley, J.

Attorneys: For Appellant: Simpson, Arthur P., Milwaukee; Rice, Christine Marie, Milwaukee; For Respondent: Weir, Todd M., Milwaukee; Allen, Shannon A., Milwaukee

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