Northern, Lawrence v. Baumgart, A. et al

Filing 107

ORDER granting defendant Koreen Frisk's 100 Motion to Dismiss plaintiff's medical malpractice claims. Signed by District Judge James D. Peterson on 6/14/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LAWRENCE NORTHERN,
Plaintiff,
v.

ORDER
13-cv-367-jdp

KOREEN FRISK,
Defendant.

Plaintiff Lawrence Northern injured his Achilles tendon playing basketball at the New
Lisbon Correctional Institution. He brought claims that defendant Koreen Frisk (a nurse at
NLCI) violated his Eighth Amendment rights by failing to properly examine his Achilles and
provide him with pain medication after he complained of pain following the injury. In a March
16, 2017 order, I denied Frisk’s motion for summary judgment on these claims. See Dkt. 91. I
also granted Northern’s motion to amend his complaint to include parallel medical malpractice
claims against Frisk, and gave Frisk a chance to file a dispositive motion on these claims.
Frisk responded by filing a motion to dismiss the malpractice claims, contending that
under Wisconsin Statutes Chapter 655, Northern cannot bring a medical malpractice claim
against a nurse. See Patients Comp. Fund v. Lutheran Hosp.-La Crosse, Inc., 216 Wis. 2d 49, 573
N.W.2d 572, 575 (Ct. App. 1997) (“nurses employed by a hospital to participate in the care
of a hospital’s patients, with the exception of nurse anesthetists, are not defined as health care
providers”). Northern does not dispute this point, instead contending that Frisk’s actions
responding (or failing to respond) to Northern’s complaints did not constitute the provision of
“health services,” so Chapter 655 does not apply to his claims. See Wis. Stat. § 655.005(1)
(“Any person listed in s. 655.007 having a claim or a derivative claim against a health care

provider or an employee of the health care provider, for damages for bodily injury or death due
to acts or omissions of the employee of the health care provider acting within the scope of his
or her employment and providing health care services, is subject to this chapter.” (emphasis
added)). Northern cites Snyder v. Injured Patients & Families Comp. Fund, 2009 WI App 86, 320
Wis. 2d 259, 768 N.W.2d 271, a case in which the Wisconsin Court of Appeals concluded
that Chapter 655 did not apply to claims against hospital employees for negligently failing to
search a suicidal patient for dangerous items. The patient sneaked in a handgun and
ammunition while out on a five-hour pass and then shot herself. Id., ¶ 2. The court concluded
that the claim concerned staff’s failure to exercise ordinary care in providing “routine” or
“custodial” care rather than medical treatment, so it was a garden-variety negligence claim
rather than a malpractice claim covered by Chapter 655. Id., ¶ 19. The Snyder court referred to
other Wisconsin decisions addressing the distinction between a negligence claim regarding
custodial care and a malpractice claim concerning medical care. See, e.g., Kujawski v. Arbor View
Health Care Ctr., 139 Wis. 2d 455, 407 N.W.2d 249, 252-54 (1987) (claim that failure to
properly restrain patient in wheelchair was matter of “nonmedical, administrative, ministerial
or routine care” that did not require expert testimony to prove).
I agree with Frisk that Snyder cannot reasonably be stretched to fit the allegations
Northern presents here. Frisk was directly responding to Northern’s complaints regarding his
Achilles injury; it was not a matter of ancillary “custodial” care of a patient. Northern admits
that he alleges that Frisk “failed to provide [him] with health care services of any kind,”
Dkt. 105, at 4, which underscores the thrust of his claims: Frisk could have performed
diagnostic tests or provided comfort items and pain medication, but chose not to. Those were
the actions of someone “providing health care services.”

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I take Northern to mean that Frisk’s complete failure to provide care (or “exercise
professional judgment” in a way that might show deliberate indifference to the medical
problem) might open the door to a negligence claim outside of the purview of Chapter 655.
But accepting Northern’s argument would mean that the failure to provide medical care would
fall outside of the malpractice statutes, even though the statutes expressly cover such failures,
see Wis. Stat. § 655.005 (Chapter 655 covers claims “for damages for bodily injury or death
due to acts or omissions of the employee of the health care provider . . . providing health care
services.”). Decisions to treat or not treat obviously fall within the common understanding of
medical malpractice: if a patient asks a doctor to perform a certain procedure and the doctor
refuses, the doctor is “providing health care services” even when she chooses not to undertake
a particular treatment. Therefore, I will grant Frisk’s motion to dismiss Northern’s medical
malpractice claims. The case will proceed to trial only on Northern’s deliberate indifference
claims.

ORDER
IT IS ORDERED that defendant Koreen Frisk’s motion to dismiss plaintiff Lawrence
Northern’s medical malpractice claims, Dkt. 100, is GRANTED.
Entered June 14, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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