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Creative pleading fails to bear fruit

“Creative pleading” did not work out for two plaintiffs seeking damages despite the absence of viable professional negligence claims.

A Dec. 30 opinion from the Wisconsin Court of Appeals rejected a plaintiff’s attempt to sue his doctor for breach of contract, rather than malpractice in tort. And a Jan. 5 opinion from the same court rejected a client’s claims against his former attorney for fraudulent misrepresentation and breach of fiduciary duty.

Medical malpractice

Ronald J. VanHierden was referred to Dr. Jack Swelstad in 2002 for injuries to his thumb and hand that resulted in persistent pain. According to VanHierden, Swelstad told him, “we’re going to get rid of your pain and we’re going to get you back to work.”

VanHierden signed a form acknowledging that “I am aware that the practice of medicine and surgery is not an exact science and I acknowledge that no guarantees have been made to me concerning the results of the operation or procedure(s).”

When surgery did not end the pain or enable VanHierden to return to work, he sued Swelstad for breach of contract.

But the trial court held, and the Court of Appeals affirmed, that a reasonable patient would not have construed Swelstad’s statements to create a binding warranty or contract.

The court noted that patients seeking damages from physicians generally do so under a malpractice theory, but that breach of contract is a viable claim, citing McMahon v. Brown, 125 Wis.2d 351. 371 N.W.2d 414 (Ct.App.1985). In addition, centuries-old precedent recognizes that a physician may bind himself to curing a patient or accomplishing a particular result. (Reynolds v. Graves, 3 Wis. 416 (1854).)

Here, however, the court concluded that the consent form vitiated any guarantees that Swelstad may have made.

Judge Burnie Bridge wrote for the court, “In light of this express acknowledgement, it would be unreasonable to conclude that VanHierden had been given and relied upon a guarantee concerning the result of the surgery.”

Legal malpractice

In the second case, Michael D. Bartz was convicted in Wisconsin state court of first-degree intentional homicide, and sentenced to life in prison.

Attorney Michael J. Edmonds was later appointed by a federal judge to assist him with his petition for habeas corpus relief in federal court. However, the petition was ultimately denied by the court, and no timely appeal was filed.

Bartz sued Edmonds in state court, alleging that Edmonds failed to notify him the petition had been denied, asserting malpractice, breach of fiduciary duty and fraudulent misrepresentation.

Summary judgment was granted to Edmonds on all claims, and the Court of Appeals affirmed.

The malpractice claim was doomed by well-established precedent holding that a criminal defendant cannot recover damages for legal malpractice unless he is actually innocent.

But the court concluded that that precedent also doomed the claim for fraudulent misrepresentation. The only damage that Bratz alleged from the alleged failure to inform him that the habeas corpus petition was dismissed was that it delayed his claim for civil damages.

However, because he had no viable legal malpractice claim, the court held that he could not prove any injury from the alleged misrepresentation.

Finally, the court held that the breach of fiduciary duty claim failed, for a variety of reasons.

Even assuming that Edmonds had a fiduciary duty to notify Bartz of the federal court decision, the court found no evidence that any breach was intentional – a necessary element of the claim.

In addition, the court found that Bartz did not have a reasonable hope of an acquittal if he was retried, and thus could not show any causal link between the alleged breach of fiduciary duty and injury to himself.

Judge Kitty K. Brennan wrote for the court, “he admitted shooting the victim in he face and only hoped to be convicted of a lesser form of homicide. He never had any hope of an acquittal, and does not now.”

The cases are VanHierden v. Swelstad, No. 2009AP544, and Bartz v. Edmonds, No. 2009AP262.

One comment

  1. Compare Dr. Swelstad’s statement of potential success with Dr. McGee’s statement to his patient in the case of Hawkins v. McGee where Dr. McGee said: “I will guarantee to make the hand a hundred per cent perfect hand or a hundred per cent good hand”. In that case, the Supreme Court of New Hampshire concluded that the jury could find that Dr.McGee’s statement could be understood to offer a warranty for his services.

    In any event, the New Hampshire court held that damages would be: “the difference between the value to the patient of a perfect hand or a good hand, such as the jury found that Dr.McGee promised his patient, and the value of his hand in its present condition, including any incidental consequences fairly within the contemplation of the parties when they made their contract.”

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