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Wisconsin Supreme Court votes to accept 3 new cases, denies review of Froedtert South med mal, others

By: Steve Schuster, [email protected]//January 29, 2024//

Froedtert South Hospital Kenosha Staff Photo Steve Schuster

Wisconsin Supreme Court votes to accept 3 new cases, denies review of Froedtert South med mal, others

By: Steve Schuster, [email protected]//January 29, 2024//

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The Wisconsin Supreme Court has voted to accept three new cases, and the Court acted to deny review in a number of other cases, including a medical malpractice case against Froedtert South, according to court officials.

The case numbers, counties of origin and the issues presented in granted cases are listed below:

I. No. 2022AP1329 State v. B.W.
Supreme Court case type: Petition for Review
Court of Appeals: District I
Circuit Court: Milwaukee County, Judge Ellen R. Brostrom, affirmed.
Long caption:
In re the termination of parental rights to B.W., a person under the age of 18:
State of Wisconsin, Petitioner-Respondent v. B.W., Respondent-Appellant-Petitioner.
Issue(s) presented:
1. When a parent in a termination of parental rights case enters a no contest plea to grounds, is the circuit court’s plea colloquy defective if it informs the parent of the best interest standard but miscommunicates the burden of proof it is required to apply at disposition?
2. Did the circuit court improperly rely on the adoptive parent’s assurance that she would allow B.W. to continue to visit with his son in deciding to terminate his parental rights?

II. No. 2023AP533 Waukesha County v. M.A.C.
Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Waukesha County, Judge Laura F. Lau, affirmed.
Long caption:
In the matter of the mental commitment of M.A.C.:
Waukesha County, Petitioner-Respondent v. M.A.C., Respondent-Appellant-Petitioner.
Issue(s) presented:
1. This Court should accept review to determine the circumstances under which a default judgment may be entered against an individual who appears by counsel at a commitment hearing.
2. This Court should accept review to determine whether Wis. Stat. § 51.20(10)(a) entitles an individual to personal notice of a recommitment hearing. This statute provides: “[w]ithin a reasonable time prior to the final hearing, the petitioner’s counsel shall notify the subject individual and his or her counsel of the time and place of the final hearing.” (emphasis added).
3. This Court should grant review to consider whether a person can forfeit their right to an examination of their competency to refuse medication.

III. No. 2023AP215 Winnebago County v. D.E.W.
Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Winnebago County, Judge Scott C. Woldt, affirmed.
Long caption:
In the matter of the mental commitment of D.E.W.:
Winnebago County, Plaintiff-Respondent v. D.E.W., Respondent-Appellant-Petitioner.
Issue(s) presented:
1. What kind of testimony must the County present to satisfy the “reasonable explanation” requirement in Wis. Stat. § 51.61(1)(g)4?
2. Does this Court’s decision in Winnebago County v. Christopher S., 2016 WI 1, 366 Wis. 2d 1, 878 N.W.2d 109 permit the court of appeals to uphold a finding that the patient is incompetent to refuse medication based on “conclusory” testimony from the testifying doctor so long as the lower court finds that testimony “credible?”

Denied Cases

The Wisconsin Supreme Court denied review of a case involving a medical malpractice lawsuit against Froedtert South. 2022AP588 in Hensley v. Froedtert South, Inc. Plaintiffs Spriggie and Mary Hensley sued Froedtert South Kenosha and Pleasant Prairie Hospitals, along with two specific doctors and an insurance carrier.

Mary and Spriggie sought medical treatment for Mary at Froedtert South-Somers Clinic. Mary was, at the time, unknowingly suffering from appendicitis. During Mary’s initial visit she  presented with a host of symptoms typically associated with appendicitis, including lower abdominal and back pain, distended abdomen, with bloating, nausea and diarrhea, as well as vomiting, constipation and a recurring fever. The care provider at Froedtert South did not order a CT scan of Mary’s abdomen, nor order diagnostic tests or conduct a thorough history or physical examination to determine the cause of Mary’s illness, according to court documents obtained by the Wisconsin Law Journal. 

According to court documents, the Wisconsin Court of Appeals affirmed the original trial court’s decision in August of 2023.

One of the issues presented before the Wisconsin Supreme Court by Hensley was: Is an indigent litigant barred from raising a medical malpractice claim simply because he or she cannot afford a paid medical expert, and if so, does this deprive the indigent litigant access to the court merely due to his or her poverty?

The Court of Appeals relied upon the general proposition that in medical malpractice actions, Wisconsin law requires a paid medical expert to testify as to the standard of care and the defendants’ departure from it, (R215: ¶8 pg. 5,6). The Court of Appeals rejected the Hensleys’ contention that their claims did not require paid expert testimony and held that they could not compel the defendants to offer opinions as to the standard of care, and that the testimony of “Dr. Jandali,” the surgeon who actually performed Mary’s life-saving surgery, did not qualify as expert testimony. The Court of Appeals offered no comment regarding Mary and Spriggie’s indigent pro se status or their financial inability to afford paid expert testimony, according to court documents obtained by the Wisconsin Law Journal.

Froedtert South declined to comment.

As previously reported by the Wisconsin Law Journal, Froedtert Kenosha Hospital and Froedtert Pleasant Prairie Hospital were the only two hospitals in Wisconsin last spring to earn “D” safety ratings, according to a 2023 report.

Hospitals get rated based on several factors, including: infection, surgery, safety, and error prevention.

Also as previously reported by the Wisconsin Law Journal, the death of a woman discharged from a Froedtert South Emergency room highlights a gap in Wisconsin’s medical malpractice laws.

The Wisconsin Supreme Court also denied review in the additional following cases.

2023AP1896-OA
Underwood v. Vos [Original Action]

Barron County

2022AP1270-CR
State v. Geiger

Brown County

2023AP730

DHS v. A.K.

Dane County

2022AP740-CR
State v. Tarkenton

2022AP907
Mosely v. Oakwood Lutheran Senior Ministries

Dodge County

2022AP1467
City of Mayville v. Village of Kekoskee

Eau Claire County

2020AP1811-W
Northern v. Tegels [Justices Ann Walsh Bradley and Rebecca Frank Dallet dissent]
2021AP1520-CR

State v. Bye

2022AP194-CR
State v. Paulus

2023XX1096-CR
State v. Brown

Fond du Lac County

2021AP288-CR
State v. Rasmussen

2022AP1739-CR
State v. Mark

2022AP2098-CR
State v. Guerra

Kenosha County

2021AP626-CR

State v. Marchese
2021AP1730-CR
2021AP1731-CR

State v. Gallegos

2022AP1356
K&D Realty, LLC v. WisDOT

La Crosse County

2021AP1993
State v. Cleaves

2022AP1135-CR
State v. Lewis

Marathon County

2022AP699-CR
State v. Nelson

Marinette County

2022AP1234
Taps v. Estate of Zolondick

Milwaukee County

2020AP2101-CR
State v. Henderson

2021AP220

2021AP221

State v. Moore [Justice Janet C. Protasiewicz did not participate]

2021AP1035-CR
State v. Alexander

2021AP1362-CR
State v. Smith

2021AP1446
Lee v. Nationwide Ins. Co.

2021AP1740-CR
State v. Payne

2021AP1937-CR
State v. Arevalo-Viera

2021AP2207-CR
State v. Jemison

2021AP2075-CR
State v. Keene

2022AP166
Johnson v. Torrez

2022AP343
State v. Martin-Andrade

2022AP608-CR

2022AP609-CR

State v. Hicks

2022AP1143-CRNM

State v. Fischer-Hamilton

2022AP1209-CR
State v. Carroll

2022AP1294-CR
State v. Johnson

2022AP1342-CR
State v. Hill

2022AP1536
Toboyek v. Wisconsin Public Service Corp.

2022AP1875-CR
State v. Yorke

2022XX1148-CR
State v. Scott [Justice Rebecca Frank Dallet did not participate]

2023AP1095

2023AP1096

State v. R.T.

2023AP1288

2023AP1289

2023AP1290

2023AP1291

2023AP1292

State v. S.A.

2023AP1506-W

Ross v. Buesgen

[Writ of Habeas Corpus]

Oconto County

2021AP1920-CR

2021AP1921-CR

State v. Hoover

Outagamie County

2022AP624-CR
State v. Peace
Ozaukee County

2021AP670
Riverback Farms, LLC v. Saukville Feed Supplies, Inc.

2022AP1481
Holmes v. Hayes

2022AP1834-CR
State v. Nordgren

Pierce County

2022AP578-CR
State v. Navarro

2022AP1529-FT
Mid Iowa Construction, Inc. v. Ventre Investments, LLC
Polk County

2021AP1398
Coleman & Hartman, S.C. v. iAMg, LLC

Racine County

2021AP1340-CR

State v. Gurtowski
2021AP1905-CR

State v. Metcaffe
2023AP769-CR

State v. Thornton

Rusk County

2021AP842-CR
State v. Kraft

Sawyer County

2021AP231
Nelson Lumber & Home Inc. v. Dunlop

St. Croix County

2021AP1743-CR
State v. Dionne

Vilas County

2022AP428
Meyers v. Wis. DOT

Waukesha County

2021AP5-CR
State v. Gomez Torres

2021AP1772-CR
State v. Wahlgren

2022AP296-CR
State v. Delanguillette

2022AP1263-CR
State v. Mayberry

2022AP1810
Misko v. State of Wisconsin Department of Public Instruction [Justice Rebecca Grassl Bradley dissents]

2023AP1661-W
Kleinhans v. Court of Appeals, District II [Supervisory Writ]

As the state’s law-developing court, the Wisconsin Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, the above denied cases came to the Court via petition for review by the party who lost in the lower court, court officials said.

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