Smith, Damien v. Doe(s), John et al

Filing 150

ORDER granting defendants' motions 138 , 141 leave to file dismissal motion on invalidity of state law claims; and denying defendants' 139 , 142 motions to dismiss. Signed by District Judge James D. Peterson on 3/19/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DAMIEN SMITH,
Plaintiffs,

OPINION & ORDER

v.
15-cv-633-jdp
ANTHONY HENTZ, ANNETTE ZARIPOVBRAND and ANGELA STETTER,
Defendants.

Plaintiff Damien Smith is proceeding on claims that staff at the New Lisbon
Correctional Institution failed to give him appropriate treatment after he broke his hand in
May 2014, thus violating his rights under the Eighth Amendment and state negligence law. On
September 21, 2017, Judge Barbara B. Crabb granted in part and denied in part the motions
for summary judgment filed by defendants, concluding that there were genuine disputes of
material fact with respect to Smith’s claims against state defendants Angela Stetter and
Anthony Hentz, and privately employed defendant Annette Zaripov-Brand. Dkt. 111. Judge
Crabb then granted Smith’s motion for assistance in recruiting counsel to represent him at
trial, and the court recruited lawyers from Quarles & Brady, LLP to represent Smith. On
December 19, 2017, this case was reassigned to me for further proceedings, including the jury
trial scheduled for October 9, 2018.
Now before the court are defendants’ motions for leave to file motions to dismiss
Smith’s medical malpractice claims, Dkt. 138 (Stetter and Hentz), 141 (Zaripov-Brand), as
well as the motions to dismiss. Dkt. 139 (Stetter and Hentz), 142 (Zaropiv-Brand). Defendants
argue that Smith’s medical malpractice claims should be dismissed because all of the remaining

defendants are registered nurses and Wisconsin law does not permit medical malpractice claims
against nurses directly.1
I will grant defendants’ requests for leave to file their motions, as their argument that
Smith has failed to state a claim for medical malpractice is one that can be raised at any time.
Fed. R. Civ. P. 12(h)(2). As for the motions to dismiss, I will deny the motions for the reasons
below.

OPINION
The premise of defendants’ motions is that Wisconsin Statutes Chapter 655 provides
the “exclusive” means of raising a medical malpractice claim under Wisconsin law. Dkt. 140 at
4 (arguing that Chapter 655 “govern[s] who may (and may not) be sued under Wisconsin law
for medical malpractice”). Defendants further argue that because Chapter 655 does not permit
medical malpractice claims against nurses directly, Smith’s medical negligence claims against
defendants Stetter, Hentz or Zaripov-Brand must be dismissed.
Defendants’ interpretation of Chapter 655 is only partially accurate. Chapter 655 sets
forth a broad legislative scheme regulating medical malpractice actions, including procedural
requirements for bringing claims, insurance obligations, and the creation of the Injured Patients
and Families Compensation Fund. Wisconsin Med. Soc’y, Inc. v. Morgan, 2010 WI 94, ¶ 11, 328
Wis. 2d 469, 787 N.W.2d 22. Defendants are correct that Chapter 655 is intended to provide
the “exclusive procedure and remedy” for medical malpractice claims brought against medical

The state defendants also argue in a footnote that if Smith’s claims are not barred by Chapter
655, they should be dismissed because Smith failed to file a notice of claim under Wis. Stat.
§ 893.82. However, Judge Crabb rejected this argument already and defendants have raised
no basis to reconsider her decision. Dkt. 111 at 22. Therefore, I will not consider it further.
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care providers who are covered by the chapter. However, Chapter 655 does not apply to all
individuals who provide medical care. Instead, Chapter 655 applies to “health care providers”
and “employees” of health care providers, as those terms are defined in the statute. See Phelps
v. Physicians Ins. Co. of Wisconsin, 2009 WI 74, ¶ 64, 319 Wis. 2d 1, 768 N.W.2d 615 (Phelps
II) (“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.”) (citation omitted) (emphasis added). Thus, if a named defendant meets the
definition of “health care provider” or “employee” of a health care provider, the procedures and
remedies set forth in Chapter 655 govern any medical malpractice claim brought against the
defendant.
However, individuals who provide medical care but who do not qualify as “health care
providers” or “employees” of a health care provider under the definition in Chapter 655 are
not covered by the statute. Phelps v. Physicians Ins. Co. of Wisconsin, 2005 WI 85, ¶ 62, 282 Wis.
2d 69, 698 N.W.2d 643 (Phelps I) (explaining that provisions of chapter “cannot be applied to
a non-chapter 655 case or non-chapter 655 health care provider”). Thus, in Phelps I, the
Wisconsin Supreme Court concluded that the provisions of Chapter 655 would not apply to a
medical malpractice claim brought against a first-year resident, because he was not a licensed
physician who qualified as a “health care provider” under Chapter 655, unless the resident was
as an “employee” of a health care provider. Id. This was significant in Phelps I, because without
the protections of Chapter 655, the resident would not be covered by the Injured Patients and
Families Compensation Fund, would not be protected by the medical malpractice damage caps
and could face a claim for negligent infliction of emotional distress to a bystander, a claim not
allowed under Chapter 655. Id. at ¶ 64. The Court remanded the case to the circuit court to
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consider the question whether the resident qualified as a “borrowed employee” of the hospital
at which he worked. Id. at ¶ 65. In a later decision, the Court concluded that the resident
qualified as a “borrowed employee” and was covered by Chapter 655. Phelps II, 2009 WI 74, ¶
57.
As relevant in this case, it is well-established that Chapter 655 does not generally apply
to state employees. Wisconsin Med. Soc’y, 2010 WI 94, ¶ 10 (noting that provisions of Chapter
655 are not applicable to “state, county, or municipal employees, or federal employees”) (citing
Wis. Stat. § 655.003)); Rouse v. Theda Clark Med. Ctr., Inc., 2007 WI 87, ¶ 50, 302 Wis. 2d
358, 735 N.W.2d 30 (Abrahamson, C.J. dissenting); Suchomel v. Univ. of Wis. Hosp. & Clinics,
2005 WI App 234, ¶¶ 26–28, 288 Wis. 2d 188, 708 N.W.2d 13; Coe v. Cty. of Wood, 168 Wis.
2d 359, 485 N.W.2d 839 (Ct. App. 1992) (unpublished). Thus, medical malpractice claims
against state employees are not governed by Chapter 655, but are instead controlled by other
statutes applicable to medical malpractice claims generally, and to claims against state
employees in particular. See, e.g., Wis. Stat. §§ 893.82 (procedures governing claims against
state employees); 893.55 (medical malpractice statute of limitations); see also Estate of Radley ex
rel. Radley v. Ives, 2007 WI App 19, ¶ 6, 298 Wis. 2d 551, 727 N.W.2d 375 (applying former
notice-of-claim statute, Wis. Stat. § 893.82(2m), to medical malpractice claim against nurses
employed by state); Lamoreux v. Oreck, 2004 WI App 160, ¶ 50, 275 Wis. 2d 801, 828, 686
N.W.2d 722, 735 (dismissing “medical malpractice action” brought against state employee
because plaintiff failed to satisfy the notice-of-claim requirements under Wis. Stat. §
893.82(3), in effect at the time); McCullough v. Lindblade, 513 F. Supp. 2d 1037, 1038 (W.D.
Wis. 2007) (applying notice-of-claim requirements to “medical malpractice” action brought

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against physician employed by state); Rice v. Sielaff, 2006 WI App 101, 293 Wis. 2d 361, 715
N.W.2d 240 (same).
Additionally, “nurses” are not “health care providers” subject to individual liability
under the statute. Wis. Stat. § 655.002(1); Patients Comp Fund v. Lutheran Hosp.–La Crosse, Inc.,
216 Wis. 2d 49, 56, 573 N.W.2d 572, 575 (Wis. Ct. App. 1997). A claim of medical negligence
against a nurse who is an “employee” of a “health care provider” is still governed by Chapter
655, however, as providers are required to maintain insurance to cover employees who are not
obligated to maintain their own insurance. Patients Comp. Fund, 216 Wis. 2d at 56, 573 N.W.2d
at 575. Thus, if an injured claimant alleges that a nurse employed by a “health care provider”
was negligent, the claimant could name the nurse’s employer or the employer’s insurer as a
defendant. Wis. Stat. § 655.23(5); Rogers ex rel. Rogers v. Saunders, 2008 WI App 53, ¶ 2, 309
Wis. 2d 238, 241, 750 N.W.2d 477, 479 (“[A] nurse employed by a health care provider (as
defined by the chapter) has no personal exposure for malpractice liability. Rather, any
negligence on the part of the nurse is included in the liability limit of the health care provider
and is covered by the provider's insurance.”).
In their motions to dismiss, defendants argue that Smith’s state law claims should be
dismissed because, as nurses, they cannot be subjected to medical malpractice lawsuits under
Chapter 655. With respect to the state defendants’ motion, however, their citation to Chapter
655 missed the point. Defendants are correct that they are not covered by Chapter 655, but
that is because no state employee is covered by that chapter. Defendants are neither “health
care providers” nor employees of a “health care provider.” But this just means that Smith’s
medical malpractice claim proceeds as a “non-Chapter 655 case,” to borrow the Court’s phrase
from Phelps I, 2005 WI 85, ¶ 62, subject to the particular rules and restrictions that apply to
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claims against state employees generally. The fact that defendants are not covered by Chapter
655 does not mean that Smith has no cause of action against them. Defendants understandably
cite Northern v. Frisk, No. 13-cv-367, 2017 WL 2589426 (W.D. Wis. June 14, 2017), in
support of their position, but that 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, particularly now that the issue is pointedly contested.
Wisconsin courts make clear that a claim for “medical malpractice” is simply a claim
that that a medical care provider’s actions fell below the requisite standard of care. See, e.g.,
McEvoy by Finn v. Grp. Health Co-op. of Eau Claire, 213 Wis. 2d 507, 529–30, 570 N.W.2d 397,
406 (1997) (describing “medical malpractice” as “negligent medical acts or decisions made in
the course of rendering professional medical care”). Thus, regardless whether the medical
malpractice claim is brought against an individual covered by Chapter 655 or an individual
falling outside Chapter 655, the underlying claim is governed by common law negligence
standards. As the Wisconsin Court of Appeals has explained, “[i]n 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 or injuries, or damages, i.e., a negligent act or omission that causes an
injury.” Estate of Hegarty ex rel. Hegarty v. Beauchaine, 2006 WI App 248, ¶ 153, 297 Wis. 2d
70, 159, 727 N.W.2d 857, 900 (emphasis added) (citing Paul v. Skemp, 2001 WI 42, ¶ 17, 242
Wis. 2d 507, 520, 625 N.W.2d 860, 865). Stapleton v. Warner, No. 2012AP2336, 2013 WL
12183674, at *1 (Wis. Ct. App. Sept. 10, 2013) (unpublished) (applying same standards to
negligence claim brought against prison nurses). In short, although defendants Stetter and
Hentz are not subject to the requirements of Chapter 655, Smith may still bring a medical
malpractice claim based on common law negligence. To conclude otherwise would be to leave
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patients injured by the negligent actions of state-employed nurses without any remedy at all, a
conclusion this court will not reach without clear guidance from the Wisconsin legislature or
Wisconsin state courts.
As for defendant Zaripov-Brand, who was employed by private company TotalMed
Staffing, Inc., Smith’s medical malpractice claim may fall under Chapter 655. In particular, if
TotalMed Staffing qualifies as a “health care provider,” it may be that Smith needed to follow
the procedural requirements of Chapter 655 and seek recovery from Zaripov-Brand’s employer
or the employer’s insurer. However, Zaripov-Brand has provided no information about
TotalMed Staffing from which I could conclude that she was an “employee” of a “health care
provider” within the meaning of Chapter 655. In fact, Zaripov-Brand provided no information
about TotalMed at all. Accordingly, I will not dismiss Smith’s claim against Zaripov-Brand
either.

ORDER
IT IS ORDERED that
1. The motions “for leave to file dismissal motion on invalidity of state law claims”
filed by defendants Anthony Hentz and Angela Stetter, dkt. #138, and defendant Annette
Zaripov-Brand, dkt. #141, are GRANTED.

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2. Defendants’ motions to dismiss, dkt. ##139, 142, are DENIED.
Entered March 19, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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