Killian v. Nicholson et al
Filing
37
ORDER denying 22 MOTION to Dismiss signed by Chief Judge William C. Griesbach on 4/20/18. (cc: all counsel and via US Mail to Jamie Killian)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMIE KILLIAN,
Plaintiff,
v.
Case No. 17-C-895
CRAIG E. NICHOLSON, et al.,
Defendants.
ORDER DENYING MOTION TO DISMISS
Plaintiff Jamie Killian, who is representing himself, is proceeding on claims that the staff at
Oshkosh Correctional Institution (“OCI”) were deliberately indifferent to his medical needs following foot
surgery, which resulted in him falling in a non-handicap accessible shower, in violation of his rights under
the Eighth Amendment. He is also proceeding on a claim that Defendant Kimberly Haase, a contract
employee who was a nurse at OCI, committed medical malpractice when she mis-transcribed his narcotics
prescription post-surgery, which caused him to be overdosed on narcotics. He alleges the overdose sideeffects he experienced contributed to the fall.1 Now before the court is Haase’s motion to dismiss Killian’s
medical malpractice claim. ECF No. 22. For the reasons explained below, the motion will be denied.
1
Because Killian alleges both theories of liability for his fall, Killian’s state common law claim
against Nurse Haase shares a common nucleus of operative facts with his federal deliberate indifference
claim, over which the Court has original jurisdiction pursuant to 28 U.S.C. § 1331. For this reason, the
Court will exercise supplemental jurisdiction over Killian’s state common law claim pursuant to 28 U.S.C.
§ 1367. See Bailey v. City of Chi., 779 F.3d 689, 696 (7th Cir. 2015).
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BACKGROUND
While awaiting foot surgery to replace a bent plate and broken screws in his left foot, Killian was
restricted by his doctor from bearing weight on that foot and was ordered to be placed in a cell with a
handicap-accessible shower, which would allow him to shower without placing weight on his left foot.
ECF No. 1 at 2. After two weeks of having a handicap-accessible shower, Killian was moved into a cell
that was not. Id. at 3. Instead, Killian was given a chair to use while in the shower. Id. Despite
complaints, Killian was not moved. Id. While this was occurring, Killian met with a nurse practioner and
complained about foot pain. Id. at 5. The nurse practioner increased Killian’s Vicodin prescription. Id.
Defendant Haase transcribed the prescription.
On July 21, 2014, Killian eat breakfast, took his pain medication, and went to shower in his nonhandicap-accessible shower. Id. at 6. He fell while in the shower and was knocked unconscious. Id. He
was taken to the hospital and diagnosed with a concussion, a cervical sprain, and contusions on his
shoulder, elbow, and foot. Id. at 7. During medication rounds on July 26, 2014, another nurse informed
Killian that his narcotics prescription had mis-transcribed and he was receiving twice as many pills as he
should have been. Id. at 9.
Killian brought forth this suit alleging that the deliberate indifference by the jail staff and the
medical malpractice by Haase caused him to fall. On January 11, 2018, Haase filed a motion to dismiss
the medical malpractice claim against her. ECF No. 22. Haase argues that Chapter 655 of the Wisconsin
Statutes provides the exclusive remedy for any medical malpractice claim in Wisconsin. Haase also argues
that she is not subject to Chapter 655. Therefore, she asserts that a medical malpractice claim cannot be
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brought against her and the claim must be dismissed. The matter has been fully briefed and is ripe for
decision.
LEGAL STANDARDS
A motion to dismiss tests the sufficiency of the complaint to state a claim upon which relief can
be granted and does not decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th
Cir. 1990); see Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss under Rule 12(b)(6), the
court must accept all well-pleaded factual allegations as true and draw all inferences in the light most
favorable to the non-moving party. Guitierrez v. Peters, 111 F.3d 1364, 1368–69 (7th Cir. 1997); Mosley
v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991). Rule 8(a)(2) mandates that a complaint need only
include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The plaintiff’s short and plain statement must “give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
ANALYSIS
Haase’s motion to dismiss is premised on the assumption that Chapter 655 of the Wisconsin
Statutes provides the exclusive remedy for all medical malpractice claims in Wisconsin; therefore, because
Haase is not subject to Chapter 655, she cannot be liable for medical malpractice. Haase’s assumption
is incorrect.
In the 1970s, the Wisconsin legislature enacted Chapter 655 to address the perceived medical
malpractice crisis. Patients Compensation Fund v. Lutheran Hospital-La Crosse, 223 Wis. 2d 439, 452,
588 N.W.2d 35 (1998). Chapter 655 creates a statutory scheme that established a mandatory amount of
primary insurance coverage that health care providers must maintain; it also created a Compensation Fund
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that health care providers pay into yearly, which serves as an excess liability insurance carrier. Id. In
establishing the statutory scheme, the legislature defined who was required to participate—by defining
“health care provider.”2 Wis. Stat. §§ 655.01; 655.02. The Wisconsin Supreme Court has explained that
“‘Chapter 655 constitutes the exclusive procedure and remedy for medical malpractice in Wisconsin’
against health care providers, as that term is defined in Wis. Stat. § 655.001(8), and their employees.”
Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶ 64, 319 Wis. 2d 1, 768 N.W.2d 615 (citing
Finnegan v. Wis. Patients Comp. Fund, 2003 WI 98 ¶ 22, 263 Wis. 2d 574, 666 N.W.2d 797) (emphasis
added). Therefore, if an individual is a “health care provider” or the employee of a “health care provider,”
they are subject to Chapter 655, which governs any medical malpractice claim brought against them.
Haase argues that Chapter 655 is the exclusive method to bring a medical malpractice suit in
Wisconsin and, therefore, because she is not subject to Chapter 655, she cannot be subject to a medical
malpractice lawsuit. Haase’s interpretation operates from the assumption that Chapter 655 established
a medical malpractice cause of action in Wisconsin and therefore, the only way one may bring a medical
malpractice claim is through Chapter 655. That assumption is false.
Medical malpractice claims are claims of “negligent medical acts or decisions made in the course
of rendering professional medical care.” McEvoy v. Group Health Coop., 213 Wis. 2d 507, 530, 570
N.W.2d 397 (1997). Therefore, medical malpractice claims are grounded in Wisconsin negligence
2
A “health care provider” is defined as a “physician or nurse anesthetist,” “a partnership comprised
of physicians or nurse anesthetists and organized and operated in this state for the purpose of providing the
medical services,” “a corporation organized and operated . . . for the primary purpose of providing the
medical services of physicians or nurse anesthetists,” “any organization or enterprise not [previously]
specified,” “a cooperative health care association,” “an ambulatory surgery center,” “a hospital,” “an entity
operated in this state that is an affiliate of a hospital and provides diagnosis or treatment of, or care for,
patients of the hospital,” and “a nursing home.” Wis. Stat. § 655.002.
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common law: “In a medical malpractice claim, like in any negligence claim, the plaintiff must establish
‘(1) a breach of (2) a duty owed (3) that results in (4) an injury . . . .” Estate of Hegarty v. Beauchaine,
2006 WI App 248, ¶ 153, 297 Wis. 2d 70, 727 N.W.2d 857 (2006) (emphasis added). This conclusion
is supported by the history of Chapter 655 clearly shows that Wisconsin legislature was not concerned
about creating a cause of action for medical malpractice. Instead, it was concerned about controlling
medical malpractice claims and the “‘sudden increase in the number of malpractice suits, in the size of
awards, and in malpractice insurance premiums.’” Czapinski v. St. Francis Hosp., 236 Wis. 2d 316, 326,
613 N.W.2d 120 (2000) (citing State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 509, 261 N.W.2d 434
(1978)). Stated another way, Chapter 655 was created to provide limitations on medical malpractice
claims, not to establish it as a cause of action.
Furthermore, there are a number of individuals that Chapter 655 does not apply to. It does not
apply to public employees that work for a governmental agency. Wis. Stat. § 655.003. Similarly, there
are individuals who may provide medical care but who do not qualify as a “health care provider,” like
nurses, that would not be subject to Chapter 655 unless their employer was a “health care provider.”
Patients Comp. Fund, 216 Wis. 2d at 56.
Under Haase’s interpretation of Chapter 655, an individual would have no remedy for a claim of
medical malpractice against any of these individuals. Essentially, Haase is requesting this court to interpret
Chapter 655 to eliminate the common law claim of medical malpractice. However, Wisconsin courts
appear to have rejected that interpretation. When a defendant is not subject to Chapter 655, Wisconsin
courts appear to apply the other statutes that may be applicable, like those applicable to state employees
or those applicable to medical malpractice claims generally. See, e.g., Estate of Radley v. Ives, 2006 WI
5
App 1274, ¶ 10, 298 Wis. 2d 551, 727 N.W.2d 375 (applying Wis. Stat. § 893.82(3), which governs
notice requirements for claims against state defendants, to a medical malpractice claim against three nurses
at a state veterans home). Therefore, this Court declines to read Chapter 655 so broadly that it eliminates
common law medical malpractice claims against individuals not subject to Chapter 655 without clearer
direction from the Wisconsin courts or legislature. See generally Smith v. Hentz, No. 15-cv-633-jdp,
2018 WL 1400954, at *3 (W.D. Wis. Mar. 19, 2018). In sum, Haase’s assertion that the medical
malpractice claim against her must be dismissed because she is not subject to Chapter 655 must be
rejected.3 At the very least, Killian still maintains a common law claim for medical malpractice against
Haase.
Lastly, I would like to address Northern v. Frisk, which Haase cites as support for interpreting
Chapter 655 to preclude claims of medical malpractice against individuals who are not subject to Chapter
655. No. 13-cv-367-jdp, 2017 WL 2589426 (W.D. Wis. June 14, 2017). In Frisk, a defendant nurse
sought to dismiss medical malpractice claims against her because she was not subject to Chapter 655. Id.
at *1. Instead of addressing whether a medical malpractice claim could be brought against a defendant
not subject to Chapter 655, the plaintiff argued that his claims were more of a general negligence claim,
and not a medical malpractice claim. Id. Judge Peterson rejected that argument and found that the
plaintiff’s claims were medical malpractice claims, subject to Chapter 655. Id. at *1–2. Judge Peterson
then dismissed the medical malpractice claims. Id. at *2. However, I find Frisk unpersuasive for two
reasons. First, it never addressed the merits of whether a medical malpractice claim could be brought
3
Haase was placed at OCI by a temporary professional placement agency and the Court does not
have sufficient facts to determine whether Haase was the employee of a “health care provider.” However,
I do not need to determine that issue to resolve this motion and thus, I do not address that issue.
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against a defendant not subject to Chapter 655. Thus, it is of limited persuasive value. Second, Judge
Peterson has recently revisited the issue in a different case and noted “that [the Frisk] decision was based
on the briefs and arguments provided by the parties in that case. It does not necessarily foreclose medical
negligence claims brought against nurses employed by the state . . . .” Hentz, 2018 WL 1400954, at *3
(finding a prisoner may bring a medical malpractice claim against a prison nurse based on a common law
negligence claim). Accordingly, I find Frisk unpersuasive.
CONCLUSION
IT IS THEREFORE ORDERED that Haase’s motion to dismiss (ECF No. 22) is DENIED.
Dated this 20th day of April, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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