Sands-Wedeward, Susan v. University Hospital and Clinics and Medical Foundation, Spine Clinic and Pain Clinic

Filing 4

ORDER Dismissing 1 Complaint. (Amended complaint due 10/29/2013.) Signed by District Judge Barbara B. Crabb on 10/9/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SUSAN ANN SANDS WEDEWARD,
ORDER
Plaintiff,
13-cv-632-bbc
v.
UNIVERSITY HOSPITAL AND CLINICS
and MEDICAL FOUNDATION
SPINE CLINIC and PAIN CLINIC,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Susan Ann Sands Wedeward has filed a proposed complaint against
defendants University Hospital and Clinics and Medical Foundation, Spine Clinic and Pain
Clinic, alleging that defendants failed to give her proper treatment for a spinal injury she
suffered on October 29, 2006. She has been granted leave to proceed in forma pauperis, so
her proposed complaint is ready for screening.
A review of plaintiff’s complaint reveals a number of problems with it that may
prevent plaintiff from pursuing her claims. I will dismiss the complaint at this time and give
plaintiff an opportunity to file an amended complaint.
Plaintiff contends that defendant UW Spine Clinic is guilty of medical negligence for
returning her to work without seeing her at the clinic, that “Meriter ER” did not call a spine
surgeon and hospitalize plaintiff until testing could be completed, that neither Drs. Hicks

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nor Kaske checked her for a transverse costal facet fracture and that Raina Haupt Leer PAC
returned plaintiff to work, saying “their was nothing on her MRI.” Cpt., dkt. #1, at 2.
Plaintiff contends that Raina Haupt Leer is guilty of medical negligence and obstruction of
justice. She also contends that Dr. Nathan Rudin did not treat her properly at the Pain
Clinic and may have talked to her husband about her.

As damages, plaintiff seeks

reimbursement for “everything she lost.” Id. at 5. In addition, she asks the court to review
all the medication documentation and compare it to the American Medical Association
standards for treatment of similar injuries.
Plaintiff’s complaint has numerous problems. First, she has not named any individuals
as defendants, although she alleges malfeasance or negligence on the part of at least Raina
Haupt Leer and Drs. Rudin, Hicks and Kaske. Naming the entities where those individuals
work is not a substitute for naming them personally. Second, it is probable that the time has
expired in which she could bring a suit against anyone for acts committed or omitted in 2006.
Under Wis. Stat. § 893.55, an action for injuries resulting from malpractice must be brought
within three years of the date of the injury, § 893.55(1)(a), or one year from the date that the
injury was discovered (so long as the total time from the injury does not exceed five years),
§ 893.55(1)(b). Third, she has not explained sufficiently what each of the individuals she
discusses did that was wrong or what they failed to do and how the wrongs and omissions
injured her. A claim of medical malpractice requires a showing that the medical provider
breached a duty owed to the plaintiff and that the breach resulted in injuries or damages.
Paul v. Skemp, 2001 WI 42, ¶ 11, 242 Wis. 2d 860, 507, 521, 625 N.W.2d 860, 865.

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Finally, even if plaintiff could correct these problems, she faces the bigger problem of lack of
subject matter jurisdiction.
Federal courts have limited jurisdiction. They may hear only cases that raise a federal
question, 28 U.S.C. § 1331, or in which the parties are citizens of different states and more
than $75,000 is in dispute. Nothing in plaintiff’s complaint suggests that the issue of her
medical treatment raises any federal question; rather, it is an issue of alleged medical
malpractice, which is a state law question. Therefore, the only way in which this court would
have jurisdiction to hear the case is if plaintiff could show that each of the defendants she
intends to sue is a citizen of a state other than Wisconsin or that she is a citizen of a state
other than Wisconsin and none of the defendants are citizens of the same state of which she
is a citizen.
I will give plaintiff an opportunity to correct these problems, starting with the basic
one of jurisdiction. This is the critical issue. If she cannot make the showing required of her
on this issue, it would be a waste of her time to try to resolve the other problems in her
complaint that I have identified.

ORDER
IT IS ORDERED that plaintiff Susan Ann Sands Wedeward may have until October
29, 2013, in which to file an amended complaint that cures the problems identified in this
order. If plaintiff does not file an amended complaint by October 29, 2013, the case will be
dismissed for lack of subject matter jurisdiction. If she does file an amended complaint, it will

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be reviewed promptly to determine whether plaintiff can proceed on her suit.
Entered this 9th day of October, 2013.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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