author: FINE, J.

text:
    Gregory G. Phelps, Marlene L. Phelps, Estate of Adam Phelps, Deceased, by his Special Administrator, Gregory G. Phelps, and Caroline Phelps and Kyle Phelps, minors, by their Guardian ad Litem, William M. Cannon, Plaintiffs-Respondents, v. Physicians Insurance Company of Wisconsin, Inc., a Wisconsin insurance corporation, and Matthew Lindemann, M.D., Defendants-Appellants.
    Court of Appeals

      No. 03-0580.

      Oral argument April 7, 2004.

    Decided April 27, 2004.

    2004 WI App 91
    (Also reported in 681 N.W.2d 571.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of John S. Shilton, Chris
      topher G. Hanewicz and Gabrielle E. Bina of Heller Ehr-man White & McAuliffe, LLP, Madison; and Michael B. Van Sicklen and Michael S. Heffernan of Foley & Lardner, Madison. There was oral argument by John S. Skilton and Michael B. Van Sicklen.

    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of William M. Cannon and Sarah F. Kaas of Cannon & Dunphy, S.C., Brookfield. There was oral argument by William M. Cannon.

    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review granted 9-16-04.

   FINE, J.

¶ 1. Physicians Insurance Company of Wisconsin, Inc., and Matthew Lindemann, M.D., appeal from an "order for judgment" awarding judgment against them, jointly and severally, in this medical-malpractice case, as follows: (1) $901,015 to Gregory G. Phelps and Marlene L. Phelps; (2) $45,000 to Caroline Phelps; and (3) $45,000 to Kyle Phelps. Marlene Phelps was pregnant with Adam and Kyle when she was treated by Dr. Lindemann, who was then an unlicensed first-year resident working at St. Joseph's Hospital in Milwaukee. The Phelpses alleged, and the trial court found in a bench trial, that Dr. Lindemann negligently caused Adam's death. The trial court apportioned eighty percent of the causal negligence to Dr. Lindemann and twenty percent to St. Joseph's Hospital.

¶ 2. Physicians Insurance and Dr. Lindemann contend that the trial court erred in: (1) not giving them the jury trial they had demanded; (2) applying what they contend was the wrong standard of care in assessing whether Dr. Lindemann was negligent; (3) determining that Dr. Lindemann was not a "health care provider," as that term is used in Wrs. Stat. § 146.38 (health-care-services-review confidentiality); (4) not applying the statutory cap on damages mandated by Wis. Stat. ch. 655; (5) awarding emotional-distress damages to Mr. and Mrs. Phelps; and (6) awarding damages to Mr. and Mrs. Phelps's children for their loss of their mother's society and companionship. We agree that the trial court should have, under the facts of this case, granted the defendants' motion to extend the time within which to pay the jury fee. Accordingly, we reverse and remand for a new trial. We also address the issues that are reasonably likely to recur on remand.

I. Jury Trial.

A.

¶ 3. The Phelpses filed their amended summons and complaint naming Physicians Insurance and Dr. Lindemann on April 14, 2000. On May 30, 2000, Physicians Insurance and Dr. Lindemann filed their answer, and demanded a trial by jury. On July 10, 2001, the trial court entered a standard Milwaukee County "civil division scheduling order," which provided as material to the jury-trial issue: "Jury fees must be paid in accordance with Local Rule #371 on or before 9-1-01 or the jury shall be deemed waived." (Uppercasing omitted; bolding in original; underlined date handwritten.) The name of Donald R. Peterson, Esq., appears on the scheduling order on behalf of Physicians Insurance and Dr. Lindemann. According to the judgment roll, Peterson "appeared by phone from Philadelphia." Mary K. Wolverton, Esq., a member of Peterson's firm, Peterson, Johnson & Murray, S.C., attended the scheduling conference. The $72 jury fee was paid by letter dated September 12,2001, which was signed by Wolverton and filed by the Clerk of Circuit Court on September 13, 2001. The letter does not indicate that a copy was sent to the Phelpses' counsel, and the parties agree that none was sent.

¶ 4. By order dated June 10, 2002, and on stipulation, Corneille Law Group, LLC, was substituted as counsel in place of Peterson, Johnson & Murray for Physicians Insurance and Dr. Lindemann. On September 11, 2002, counsel for the Phelpses, and counsel for Physicians Insurance and Dr. Lindemann filed with the trial court a "stipulation to amend scheduling order," which, among other things, set a "12 person Jury Trial" for December 4, 2002. (Bolding and uppercasing omitted.)

¶ 5. On October 29,2002, the Phelpses' lawyer and the lawyer for Physicians Insurance and Dr. Lindemann filed with the trial court their respective proposed special jury verdicts and proposed jury instructions.

¶ 6. By letter dated December 2, 2002 (two days before the scheduled jury trial), and hand-delivered to the trial court (but mailed to the lawyer for Physicians Insurance and Dr. Lindemann), the Phelpses' lawyer wrote:

Plaintiffs have not requested a jury trial in the above-captioned case. At no time did plaintiffs pay the jury fee. Defendants requested a jury trial in their amended [sic] answer. This Court's [July] 10, 2001, Scheduling Order provides that "Jury fees must be paid in accordance with Local Rule # 371 on or before 9-1-01 or the jury shall be deemed waived."
When notice was received from the Court that this case was set for a jury trial, plaintiffs' counsel believed defense counsel had paid the jury fee in accordance with this Court's Scheduling Order and Rule 371.
Plaintiffs' counsel inadvertently discovered last week that defense counsel not only failed to timely pay the jury fee, but did not notify plaintiffs' counsel of the payment. Defendants are in violation of the Court's scheduling order and Local Rule 371 on both counts. Local Rule 371 provides:
PAYMENT OF JURY FEE
Any party who has made a demand for jury trial pursuant to Sec. 805.01(2), Wis. Stats., shall have no more than thirty (30) days following the first scheduling/pre-trial conference to pay the jury fee. Such party shall notify in writing all counsel of record and/or parties not represented by counsel of record of payment of the jury fee or waiver of the demand for jury. Any other party shall have an additional thirty (30) days from receipt of notification of waiver to demand a jury trial and pay the jury fee. If no other party demands a jury trial and pays the jury fee within this subsequent thirty (30)-day period, it shall constitute a waiver of the right of jury trial and consent by all parties to a trial to the court sitting without a jury.
(Emphasis added.)
Defendants' failure to pay the jury fee until September 13, 2001, and not notify plaintiffs' counsel of such payment results in a waiver of their right to a jury trial. This conclusion results not only from the express language of the Scheduling Order and Local Rule 371, which reflect the provisions of 814.61(4), Wis. Stat., but the decision of several Milwaukee County judges addressing this precise issue. Several of those decisions have been affirmed by the appellate courts under the principle that the right to a jury trial, both statutory and constitutional, can be waived. See § 805.01(3), Wis. Stat., Wis. Const. art. I, § 5.
Given defendants' violation of the scheduling order and local rule, defendants have waived their right to a jury trial. Moreover, plaintiffs submit that a bench trial is particularly appropriate in this case given the evidence of [Physicians Insurance]'s ex parte communications and breach of privileges as well as the applicable standard of care for Matthew Lindemann. Therefore, plaintiffs request an order setting the case for a bench trial.

(Footnotes added; underlining and bolding by Phelpses' counsel.)

¶ 7. On December 3, 2002, the trial court held a telephone conference with the lawyers on the jury-trial issue. No testimony was taken, nor were any affidavits submitted. The trial court ruled that Physicians Insurance and Dr. Lindemann had waived their right to a jury trial, and gave the following reasons:

This is a highly-complicated matter. I haven't been able to concentrate on anything else because of this issue now this afternoon, but that is neither here nor there. That is an aside, but the point of the matter is it's very clear in the scheduling order that if you don't pay the jury fee timely[,] which I did not know until now, the jury is waived. Gentlemen, the jury is waived. I'll see you tomorrow morning. We are trying this case to the court.

The following day, December 4, the day set for the jury trial by the scheduling order as amended by the September 11, 2002, stipulation, counsel for Physicians Insurance and Dr. Lindemann asked the trial court to extend, nunc pro tunc, the time for them to pay the jury fee. Peterson, their initial counsel, testified that Wolverton attended the July 10, 2001, scheduling conference because he was out of town. He explained why, in his view, the fees were not paid by the September 1 deadline:

Since I was handling the file, Mary Wolverton returned it to me. Unfortunately, I became ill in late August, knew that I had a serious problem, turned out to be kidney cancer. I stopped — continued to do some work but I really stopped going into the office. When they realized I wasn't coming into the office, Mary Wolverton took the file back, was going to handle it in my absence, discovered that the jury fees had not been paid on September 3, and so arranged to have the fees paid on September 12, seven business days later.

September 1, 2001, was a Saturday; September 3 was a Monday.

¶ 8. Peterson's testimony was not challenged by the Phelpses' lawyer, who asked him no questions. The trial court adhered to its view that the case should be tried to the court and not to a jury:

Well, you know, I suppose the argument goes that I could extend the time for the jury and I guess that is the argument that is made, hut there is [sic] a huge number of issues in this case, okay, and a lot of issues about what evidence ought to be before the trier of fact and what won't go before the trier of fact, many of which, the majority of which, as a matter of fact, have been raised by the defense and Dr. Lindemann which have complicated this case tremendously, and in my opinion, it's not a suitable place for me to exercise my discretion for those reasons. That is largely it. It's a situation of the defense's making my position. This is a time of year it's going to be very difficult to get this case in as it is before the Christmas break and, you know, given the complications that have come up in the case because of claims of — requests by the defense for motions [sic] in limine, requests by the plaintiffs for motions [sic] in limine, additional discovery and all of this, these are things the court can handle in a court trial a lot more simply and keep the case moving so we get these parties their day in court, and I — sorry, but we are going to try this case to the court, folks.

B.

¶ 9. The right to a jury trial in civil cases is preserved by article I, section 5 of the Wisconsin Constitution, and by Wis. Stat. Rule 805.01. Both provisions, however, recognize that the right may be waived. Thus, article I, section 5 provides: "The right of trial by jury shall remain inviolate, and shall extend to all cases without regard to the amount in controversy; but a jury may be waived by the parties in all cases in the manner prescribed by law." Similarly, Rule 805.01(1) reads: "The right of trial by jury as declared in article I, section 5, of the constitution or as given by a statute and the right of trial by the court shall be preserved to the parties inviolate." Rltle 805.01(3) is one provision that specifies how waiver may be effectuated:

The failure of a party to demand in accordance with sub. (2) a trial in the mode to which entitled constitutes a waiver of trial in such mode. The right to trial by jury is also waived if the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

Under Rule 805.01(2), parties must demand a trial by jury in civil cases "at or before the scheduling conference or pretrial conference, whichever is held first." Wisconsin Stat. § 814.61(4) is another waiver provision:

For a jury in all civil actions, except a garnishment action under ch. 812, a nonrefundable fee of $6 per juror demanded to hear the case to be paid by the party demanding a jury within the time permitted to demand a jury trial. If the jury fee is not paid, no jury may be called in the action, and the action may be tried to the court without a jury.

Thus, under Rule 805.01(2) and § 814.61(4), Physicians Insurance and Dr. Lindemann had until the July 10, 2001, scheduling conference to pay the fee for the jury they demanded in their answer. Under Milwaukee County Cir Ct. Rule 371, they had until thirty days following the scheduling conference within which to pay the jury fee. Although these provisions conflict, the conflict is immaterial here because none of the parties to this appeal contends that the scheduling order's resetting the date to September 1, 2001, was invalid. The question is thus whether the trial court erroneously denied the motion by Physicians Insurance and Dr. Lindemann to excuse the September 12 payment of the $72 jury fee.

¶ 10. Whether to forgive late payment of a jury fee is within the trial court's discretion. Chitwood v. A.O. Smith Harvestore Prods., Inc., 170 Wis. 2d 622, 628, 489 N.W.2d 697, 701 (Ct. App. 1992). A court may enlarge nunc pro tunc the time within which a party must do something if "the court finds that the failure to act [timely] was the result of excusable neglect." Wis. Stat. Rule 801.15(2)(a) ("If the motion [to enlarge time within which to do something] is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect.’’). Application of Rule 801.15(2)(a) is also within the trial court's reasoned discretion. Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 467-468, 326 N.W.2d 727, 730-731 (1982).

¶ 11. A trial court erroneously exercises its discretion when it either ignores the governing law or misapprehends it, and our analysis of what the law requires is de novo. F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840, 844 (Ct. App. 1999). The focus of Wis. Stat. Rule 801.15(2)(a) is "excusable neglect." Once "excusable neglect" is found, the trial court should consider the "interests of justice":

The circuit court grants relief under sec. 801.15(2)(a) if it finds reasonable grounds for noncompliance with the statutory time period (which the statute and this court refer to as excusable neglect) and if the interests of justice would be served by the enlargement of time, e.g., that the party seeking an enlargement of time has acted in good faith and that the opposing party is not prejudiced by the time delay.

Hedtcke, 109 Wis. 2d at 468, 326 N.W.2d at 731; Williams Corner Investors, LLC v. Areawide Cellular, LLC, 2004 WI App 27, ¶ 19, 269 Wis. 2d 682, 692-693, 676 N.W.2d 168, 173-174 (finding of "excusable neglect" is prerequisite to consideration of "interests of justice").

¶ 12. As we have seen, the trial court did not apply the requisite excusable-neglect standard. This was error. We therefore undertake our own review of the uncontested facts to determine whether they "provide support for the circuit court's decision." Hedtcke, 109 Wis. 2d at 471, 326 N.W.2d at 732. If they do not, we must reverse. Id., 109 Wis. 2d at 471-472, 326 N.W.2d at 732 ("If the record indicates that the circuit court failed to exercise its discretion, if the facts of record fail to support the circuit court's decision, or if this court's review of the record indicates that the circuit court applied the wrong legal standard, this court will reverse the circuit court's decision as an abuse of discretion."). We analyze the Hedtcke factors in turn.

1. Excusable Neglect.

¶ 13. The only reason of record for the seven-business-day delay in paying the $72 jury fee was that the lawyer responsible for the file discovered that he was "serious[ly]" ill in August, 2001 — that is, before the September 1 due date. As he testified: "I became ill in late August, knew that I had a serious problem, turned out to be kidney cancer." If his letting the September 1 date pass without paying the jury fee was "neglect" it certainly was "excusable."

2. Interests of Justice.

a. Importance of Jury Right.

¶ 14. The Wisconsin Constitution recognizes the "inviolate" nature of the jury-trial right. Although the trial court was concerned that the case was too complicated for a jury to understand, that a trial might be easier without a jury does not trump the constitutional guarantee; many cases present complex issues of law and fact. See Fabrikant v. Bache & Co., 609 F.2d 411, 419-432 (9th Cir. 1979) (there is no complexity-exception to the Seventh Amendment to the United States Constitution), cert. denied sub nom. Gant v. Union Bank, 446 U.S. 929; Kenney v. Scientific, Inc., 517 A.2d 484, 485-486 (N.J. Super. Ct. App. Div. 1986) (interpreting state constitution, which like article I, section 5 of the Wisconsin Constitution, provided that "the right of trial by jury shall remain inviolate"); cf. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 n.4, 51-52 (1989) (Congress "lacks the power to strip parties contesting matters of private right of their constitutional right to a trial by jury.").

b. Good Faith of Physicians Insurance and Dr. Lindemann.

¶ 15. Given that the undisputed reason for the seven-business-day delay in paying the $72 jury fee was the lawyer's intervening illness, there is no evidence of bad faith in not paying the fee timely. Although the Phelpses accuse Physicians Insurance and Dr. Linde-mann of "laying in the weeds" because the defendants did not tell the Phelpses that they had paid the fee on September 13, by the Phelpses' own reading of Milwaukee County Cir Ct. Rule 371 this should have put the Phelpses on notice that the fee had not been paid by September 1. See Milwaukee County Cir Ct. Rule 371 (party demanding a trial by jury "shall notify in writing all counsel of record ... of payment of the jury fee"). Significantly, as we have seen, the rule does not, in so many words, require a party who demands a jury but does not pay the fee to notify opposing parties of the non-payment, although it does require such notification if the party demanding a jury subsequently decides to waive the jury-trial right. Of course, the defendants should have notified the plaintiffs when they did pay the jury fee, and it would have also been better for them to seek relief under Wis. Stat. Rule 801.15(2) at that time.

c. Prejudice to the Phelpses by the Delay.

¶ 16. As we have seen, both parties envisioned that their case would be tried to a jury, and filed their proposed jury instructions and special verdicts. Indeed, as the Phelpses' December 2 letter admits, they did not discover until the week of November 25, 2002, that Physicians Insurance and Dr. Lindemann had not paid the jury fee timely. Presumably, the Phelpses did not discover that fact until late in the week, because they did not notify the trial court of their discovery until Monday, December 2.

¶ 17. For some reason not readily apparent from the record, the Phelpses preferred a bench trial to a jury trial. At oral argument, however, counsel for the Phelpses explained in response to a question that he respected the trial judge's ability to sort out the complicated and potentially confusing evidence. But one party's loss of strategic preferences cannot, standing alone, be "prejudice" so as to deprive an opposing party of the jury trial to which it is entitled. See State v. Burks, 2004 WI App 14, ¶¶ 15-16, 268 Wis. 2d 747, 760, 674 N.W.2d 640, 647 (criminal trial). The Phelpses were no more prejudiced by the delay in paying the jury fee than was Hyperphrase Technologies prejudiced in its Madison, Wisconsin, federal-court case against Microsoft because Microsoft missed, by four minutes and twenty-seven seconds, the deadline for it to file its motion for summary judgment. Hyperphrase Techs., LLC v. Microsoft Corp., 56 Fed. R. Serv. 3d 467, 2003 WL 21920041 (W.D. Wis. 2003) (Magis. Judge).

d. Conclusion.

¶ 18. All factors recognized by Hedtcke that entitle a party to nunc pro tunc relief under Wis. Stat. Rule 801.15(2)(a) are present here. Accordingly, we reverse and remand this case for the jury trial to which Physicians Insurance and Dr. Lindemann were entitled.

¶ 19. Although our resolution of an issue disposi-tive of an appeal would normally end matters, see Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need he addressed), this appeal presents other issues that have been briefed by the parties and will recur on remand. Accordingly, we analyze those issues as well. See State ex rel. Jackson v. Coffey, 18 Wis. 2d 529, 533, 118 N.W.2d 939, 942 (1963) (issues briefed may be considered if they may be significant on remand even though other issues are disposi-tive of appeal).

II. Standard of Care Applicable to Dr Lindemann.

A.

¶ 20. Wisconsin Stat. § 448.01(5), as material here, defines a "physician" as a person "possessing the degree of doctor of medicine ... and holding a license granted by the medical examining board." Although a medical-school graduate, Dr. Lindemann did not have that license. Before the Board may issue a license "to practice medicine and surgery" the applicant must, as material here, satisfy all of the following:

• be a "graduate of and possess a diploma from a medical. .. college approved by the board"; and
• have "completed postgraduate training of 12 months in a facility approved by the board."

Wis. Stat. § 448.05(2). Dr. Lindemann was in his twelve months of "postgraduate training" when he treated Mrs. Phelps. Thus, as the trial court found, his freedom of action was more restrictive than that of licensed physicians: He "was a first year unlicensed resident who had no authority or privileges to provide primary obstetrical care," and "was not supposed to act as the primary attending physician." Rather, again as found by the trial court, "[h]is primary duty was to assess and report findings and differential diagnoses to an upper level senior resident or to the attending obstetrician."

¶ 21. Before the trial, the parties disputed the standard of care appropriate for Dr. Lindemann. The Phelpses sought to have the standard be that of "fully licensed physicians," and wanted the trial court to instruct the jury (the jury trial was still scheduled) that "Dr. Lindemann was required to use that degree of care, skill, and judgment which is usually exercised by the average physician who provides obstetrical care." (Underlining by the Phelpses.) Physicians Insurance and Dr. Lindemann, on the other hand, asked the trial court to apply a standard of care that reflected Dr. Lindemann's status of "an unlicensed first year resident." They wanted the trial court to instruct the jury that Dr. Lindemann "was required to use the degree of care, skill, and judgment which the reasonable first year resident in his first obstetrical rotation would exercise in the same or similar circumstances, having due regard for the state of medical science at that time."

¶ 22. The trial court resolved the issue in a letter to counsel dated November 27, 2002, noting that it "agree[d] with the plaintiffs' arguments." The trial court explained:

At the time in question, Dr. Lindemann was operating as a doctor treating an obstetrical patient. Whatever his resident status, he saw the patient [Mrs. Phelps] three times within a critical three hour period and undertook to treat her complaints. Then, when he finally realized she could be suffering from something dangerous to her as yet unborn child, he consulted no one. During that time he assumed the mantle of a physician treating an obstetrical patient. Therefore, that must be the standard to which he is held.

In its decision finding Dr. Lindemann negligent, however, the trial conrt applied both standards of care. It found that Dr. Lindemann "was negligent in his care and treatment of Marlene Phelps and Adam Phelps under both the standard of care applicable to a first-year resident and the standard of care determined to be applicable by this court in its decision dated November 27, 2002." As noted, the trial court found Dr. Linde-mann to be eighty percent causally negligent and St. Joseph’s Hospital to be twenty percent causally negligent.

B.

¶ 23. There are two problems with the trial court's legal conclusion that Dr. Lindemann was causally negligent under each of the two disparate standards of care. First, there was testimony that Dr. Lindemann complied with the standard of care applicable to first-year residents, and there is no way of ascertaining what percentage of the total negligence found by the trial court was attributable to Dr. Lindemann's violation of which standard. This uncertainty affects the appropriate level of St. Joseph's Hospital's causal negligence, which would, perforce, depend on which standard Dr. Lindemann violated. Stated another way, presumably the percentage of causal negligence attributable to Dr. Lindemann would be greater if he were held to the higher standard of care, and lower if he were held to the lower standard of care, and St. Joseph's Hospital's percentage of causal negligence would vary accordingly. Second, the trial court's November 27, 2002, ruling conflicts with our decision in Johnson v. Agoncillo, 183 Wis. 2d 143, 515 N.W.2d 508 (Ct. App. 1994), which is dispositive here. Thus, we do not discuss or analyze the many out-of-state cases upon which the Phelpses rely. If Johnson's teaching, which we reaffirm as accurately stating Wisconsin law, is to be discarded, that must by done by the Wisconsin Supreme Court. See Cook v. Cook, 208 Wis. 2d 166, 189-190, 560 N.W.2d 246, 256 (1997).

¶ 24. The physician in Johnson undertook to treat a high-risk obstetrical patient even though he was "a family practitioner with a general medical practice." Id., 183 Wis. 2d at 147, 515 N.W.2d at 510. The child was born early and suffered "from catastrophic complications of his prematurity." Ibid, (footnote omitted). The Johnsons contended that the trial court erred in instructing the jury that Dr. Agoncillo was "required to use the degree of care, skill, and judgment which is usually exercised in the same or similar circumstances by the average family practitioner who treats obstetrical patients having due regard for the state of medical science at the time." Id., 183 Wis. 2d at 149, 515 N.W.2d at 511. The Johnsons wanted Dr. Agoncillo "held to the standard of 'the average physician who treats high risk obstetrical patients, rather than the average family practitioner who treats such patients.'" Id., 183 Wis. 2d at 150, 515 N.W.2d at 511 (footnote omitted). We held that there was no error because in Wisconsin a physician is held to the standard of care applicable to his or her class, and not to the class of physician that the patient's condition might require. Id., 183 Wis. 2d at 150-152, 515 N.W.2d at 511-512. As we explained, applying our earlier decision in Zintek v. Perchik, 163 Wis. 2d 439, 471 N.W.2d 522 (Ct. App. 1991), overruled on other grounds, Steinberg v. Jensen, 194 Wis. 2d 439, 534 N.W.2d 361:

Contrary to the Johnsons' argument, Zintek did not require that physicians of one class who treat patients whose medical problems arguably require the expertise of physicians in another class conform to the standard of care applicable to that other class. Thus, for example, a cardiologist who attempts to treat a patient with cancer is, in the words of Wis JI — Civil 1023, "required to use the degree of care, skill, and judgment which is usually exercised in the same or similar circumstances by the average" cardiologist [the "specialist who practices the specialty which (doctor) practices"]; the cardiologist is not held to the standard applicable to oncologists. The cardiologist who negligently attempts to treat outside of his or her expertise is not, however, thereby immunized from liability. If competent evidence establishes that the average cardiologist would either refer the cancer patient to an oncologist or would consult with an oncologist, the cardiologist could be found negligent for not referring or consulting. Under the current state of Wisconsin law, however, the cardiologist is not held to an oncologist's standard of care.

Johnson, 183 Wis. 2d at 151-152, 515 N.W.2d at 512 (bracketing and italics in original).

¶ 25. Here, Dr. Lindemann was not a licensed physician; he was an unlicensed medical-college graduate who was undergoing his "postgraduate training of 12 months in a facility approved by the" Medical Examining Board, as a precondition to licensure. He should have been held to the standard applicable to his class. This does not mean, of course, that he automatically escapes liability. As in Johnson, Dr. Lindemann could be found to be negligent if he undertook to treat outside the scope of his expertise, or if the standard of care applicable to pre-licensure residents required that he either have consulted with someone more skilled, or have referred Mrs. Phelps to someone else, as the trial court found. On remand, the trial court shall instruct the jury accordingly.

III. Confidentiality of Health-Care-Services-Review Information under Wis. Stat. § 146.38.

A.

¶ 26. By letter dated November 30, 1998, Dennis Worthington, M.D., the chairman of the Section of Maternal Fetal Medicine at St. Joseph's Hospital, complained to Dwight Cruikshank, M.D., the chairman of the Department of Obstetrics and Gynecology at the Medical College of Wisconsin, that Dr. Lindemann had "failed in a number of areas," which he specified, in connection with his treatment of Mrs. Phelps. The Phelpses sought the letter's production. Physicians Insurance and Dr. Lindemann contended that the letter was protected from disclosure by Wis. Stat. § 146.38(lm).

¶ 27. Wisconsin Stat. § 146.38(1m) provides, with exceptions not material here, that "[n]o person who participates in the review or evaluation of the services of health care providers . . . may disclose any information acquired in connection with such review or evaluation." The initial question, therefore, is whether Dr. Lindemann is a "health care provider" under that subsection, so that Dr. Worthington's letter might qualify as a "review or evaluation" of Dr. Lindemann's "services" in connection with Mrs. Phelps. The term "health care provider" is not defined specifically by the section but, by virtue of § 146.38(l)(b), "includes an ambulance service provider, as defined in s. 146.50(l)(c), an emergency medical technician, as defined in s. 146.50(l)(e), and a first responder, as defined in s. 146.50(l)(hm)."

¶ 28. The trial court ordered the letter produced, ruling that Dr. Lindemann was not a "health care provider" under the statute. As a result, the trial court did not determine whether the letter was otherwise protected from discovery.

B.

¶ 29. Whether evidence is shielded from disclosure by Wis. Stat. § 146.38 presents a question of law subject to our de novo review. Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77, ¶ 113, 262 Wis. 2d 539, 607, 664 N.W.2d 545, 578. Moreover, whether the privilege applies does not turn on how the professionals involved may have characterized the circumstances surrounding the evidentiary dispute. Braverman v. Columbia Hosp., Inc., 2001 WI App 106, ¶ 13, 244 Wis. 2d 98, 107, 629 N.W.2d 66, 70 ("The determination of privilege is one for the courts, not for the professionals involved."). Furthermore, the party asserting that a privilege prevents the disclosure or use of evidence has the burden of proof on that issue. Ibid. Finally, eviden-tiary privileges are to be narrowly construed. Ibid.; see also United States v. Nixon, 418 U.S. 683, 709-710 (1974) (Privileges to be construed narrowly because "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.") (footnote omitted).

¶ 30. As noted, Wis. Stat. § 146.38 does not define specifically who is a "health care provider" as that term is used in that section. The trial court borrowed the phrase's definition from Wis. Stat. ch. 655, which governs medical-malpractice claims against health-care providers. Wisconsin Stat. §§ 655.001(8) and 655.002(l)(a) together define "health care provider," as material here, as "[a] physician." As we have seen, a "physician" is, again as material here, "a medical. . . physician licensed under ch. 448." § 655.001(10m). Wisconsin Stat. § 990.01(28) is similar: " 'Physician'... means a person holding a license or certificate of registration from the medical examining board."

¶ 31. Dr. Lindemann was not a "health care provider" under Wis. Stat. ch. 655 because he was not yet licensed when he treated Mrs. Phelps. He and Physicians Insurance argue, however, that the definitions in ch. 655 are, by virtue of Wis. Stat. § 655.001, meant to apply only "in this chapter," and that a more expansive reading of "health care provider" should apply under Wis. Stat. § 146.38. We agree.

¶ 32. There is no doubt but that Dr. Lindemann provided "health care" to Mrs. Phelps, although the Phelpses contend that he was, tragically, not very skilled in doing so. Indeed, although the Phelpses are not bound by this, see Fletcher v. Eagle River Memorial Hospital, Inc., 156 Wis. 2d 165, 178-180, 456 N.W.2d 788, 794-795 (1990) (party not bound by concession on legal issue), one of the briefs they submitted to the trial court contended that Dr. Lindemann was liable "for any damages he caused when he provided health care to Marlene Phelps." As the trial court colorfully recognized in the course of its ruling:

To paraphrase one of the song titles of the Andrews' Sisters of the 1940's, "Is he is, or is her ain't" a health care provider as of November 24,1998. Common sense seems to dictate one answer, but an interpretation of Chapter 655 already led me to another answer in this case. To rule differently now, especially since sec. 146.38 contains no definition of "health care provider," would result in different rulings on the same issue in the same case. I decline to do that.

(Footnote added.) Unlike ch. 655, however, § 146.38 does not exclude unlicensed medical-school graduates from its purview. A statutory provision that "includes" a list of terms in a category does not mean that the list is exhaustive. See National Motorists Ass'n v. Office of the Comm'r of Ins., 2002 WI App 308, ¶ 31, 259 Wis. 2d 240, 261-262, 655 N.W.2d 179, 188 (applying Wis. Stat. § 600.03(25)); cf. State v. A.H., 211 Wis. 2d 561, 566, 566 N.W.2d 858, 860 (Ct. App. 1997) (interpreting Wis. Stat. Rule 904.04(2)). Thus, the phrase in § 146.38(1) (b) that says that the term "[Wealth care provider includes" persons providing specified emergency health-care services is not exclusionary — other health-care providers are within its ambit. But that does not end our analysis.

¶ 33. There are two provisions in the statutes dealing with health-care services review: Wis. Stat. § 146.37, which provides that those who participate in the health-care-services-review process have, if certain criteria are met, immunity from liability for "civil damages" arising from that participation, § 146.37(lg); and, as we have seen, the confidentiality section, Wis. Stat. § 146.38. Neither defines "health care provider," however, and each has the provision that "includes" the emergency personnel that we have already seen in § 146.38(l)(b), see § 146.37(l)(a), which tracks § 146.38(l)(b). But the two sections are clearly tied together, and it is therefore highly significant that Wis. Stat. ch. 655 refers to one of them and uses the term "health care provider" when establishing a reimbursement mechanism for those health-care providers upon whom liability is imposed, § 146.37 notwithstanding:

PeeR Review activities, (a) The fund shall pay that portion of a claim described in par. (b) against a health care provider that exceeds the limit expressed in s. 655.23 (4) or the maximum liability limit for which the health care provider is insured, whichever limit is greater.
(b) A health care provider who engages in the activities described in s. 146.37 (lg) and (3) shall be liable for not more than the limits expressed under s. 655.23 (4) or the maximum liability limit for which the health care provider is insured, whichever limit is greater, if he or she is found to be liable under s. 146.37, and the fund shall pay the excess amount, unless the health care provider is found not to have acted in good faith during those activities and the failure to act in good faith is found by the trier of fact, by clear and convincing evidence, to be both malicious and intentional.

Wis. Stat. § 655.27(lm) (emphasis added).

¶ 34. There are two possible consequences to the legislature's use of "health care provider" both in Wis. Stat. §§ 146.37 and 146.38, and in Wis. Stat. § 655.27(lm). On one hand, the legislature could have intended that the definition of the term be the same in the health-care-services-review sections as it is in Wis. Stat. ch. 655. On the other hand, it could have intended that the Fund be a liability umbrella for only those health-care-providers within the chapter's scope, excluding others who may fall within the broader reach of that term in the health-care-services-review sections.

¶ 35. Although the first possibility has a certain pleasing symmetry (that is, no one who may be liable for their peer-review activities is outside the Fund's umbrella), the legislature has, in haec verba, made the definition of "health care provider" more broad in Wis. Stat. §§ 146.37 and 146.38 than it is in Wis. Stat. ch. 655 by expanding the definition to "include []" the emergency-care workers specified in §§ 146.37(l)(a) and 146.38(l)(b). They are not protected against a large civil-liability award by ch. 655's umbrella. Thus, because the definition of "health care provider" is already broader in §§ 146.37 and 146.38 than it is in ch. 655, and the legislature did not thus make the definition of "health care provider" in ch. 655 congruent with those encompassed by the term in §§ 146.37 and 146.38, there is no reason not to have § 146.38's use of the phrase also cover unlicensed physicians who, as did Dr. Lindemann, provide health-care services.

¶ 36. Our conclusion that Dr. Lindemann was a "health care provider" under Wis. Stat. § 146.38 when he provided health-care services to Mrs. Phelps does not end our inquiry because there is a dispute whether Dr. Worthington's letter is otherwise protected from disclosure by § 146.38.

¶ 37. As we have seen, Wis. Stat. § 146.38(lm) provides: "No person who participates in the review or evaluation of the services of health care providers ... may disclose any information acquired in connection with such review or evaluation." Additionally, § 146.38(2) provides:

All organizations or evaluators reviewing or evaluating the services of health care providers shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10 (4) or otherwise except as provided in sub. (3). No such record may be used in any civil action for personal injuries against the health care provider or facility; however, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10 (4) or use in any civil action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.

" 'Evaluator'" is defined by § 146.38(1) (a) as "a medical director or a registered nurse who coordinates review of an emergency medical services program of a health care provider." " 'Medical director'" is defined by § 146.38(1) (c) as having "the meaning specified in s. 146.50 (1) (j)," which defines the term as "a physician who trains, medically coordinates, directs, supervises, establishes standard operating procedures for, and designates physicians for direction and supervision of, emergency medical technicians and who reviews the performance of emergency medical technicians and ambulance service providers."

¶ 38. The statute does not define "organization." We have previously held, however, that, for the purposes of Wis. Stat. § 146.38, it is " 'a group of people that has a more or less constant membership, a body of officers, a purpose, and usu[ally] a set of regulations.'" Franzen v. Children's Hosp. of Wis., Inc., 169 Wis. 2d 366, 379-380, 485 N.W.2d 603, 608 (Ct. App. 1992) (quoted source and footnote omitted).

¶ 39. Records are protected by Wis. Stat. § 146.38 from disclosure only if the following two elements are met. "First, the investigation must be part of a program organized and operated to improve the quality of health care at the hospital. Second, the organization contemplated by the statute is a group with relatively constant membership, officers, a purpose and a set of regulations." Braverman, 2001 WI App 106, ¶ 15, 244 Wis. 2d at 108, 629 N.W.2d at 71 (internal citation omitted). But this two-step test is only the first hurdle. Thus, § 146.38(2) protects against disclosure only records of "investigations, inquiries, proceedings and conclusions" of "organizations or evaluators reviewing or evaluating the services of health care providers." See Franzen, 169 Wis. 2d at 377-378, 485 N.W.2d at 607. On the other hand, "information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10 (4) or use in any civil action merely because they were so presented." § 146.38(2); see also Franzen, 169 Wis. 2d at 378, 485 N.W.2d at 607. Additionally, "[a]ny person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation." § 146.38(2); see also Franzen, 169 Wis. 2d at 378, 485 N.W.2d at 607.

¶ 40. An analysis of whether Wis. Stat. § 146.38 protects against disclosure of something sought by a party requires fact-finding by the trial court. Franzen, 169 Wis. 2d at 381, 485 N.W.2d at 608; see also Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155, 159 n.3 (1980) (court of appeals may not decide issues of fact). As we said in Franzen, the "trial court [must] make three distinct findings of fact":

(1) identify those individuals preparing a record in order to determine if they are either evaluators or members of an organization "reviewing or evaluating services,"
(2) determine if a record pertains to an investigation, inquiry, proceeding or conclusion of the evaluator or organization identified in step one, [and]
(3) determine if a record was presented to the evaluator/organization or was kept by the evaluator/organization.

Franzen, 169 Wis. 2d at 381-382, 485 N.W.2d at 608-609 (footnote omitted; emphasis by Franzen). The trial court should make this analysis on remand, apply the facts that it finds, and decide, independent of any legal conclusion that may be offered by any witness, whether § 146.38 applies.

IV Applicability of Wis. Stat. § 893.55.

¶ 41. The trial court held that the cap imposed by Wis. Stat. § 893.55(4) on noneconomic damages did not apply to Dr. Lindemann. On our independent review of that legal issue, see Arenz v. Bronston, 224 Wis. 2d 507, 511, 592 N.W.2d 295, 297 (Ct. App. 1999) (whether person is a "health care provider" under § 893.55 is a question of law subject to de novo review), we agree.

¶ 42. Wisconsin Stat. § 893.55 has two parts. First, it establishes when "an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based" may be brought. § 893.55(l)-(3). Second, it sets a limit on the "noneco-nomic damages," defined by § 893.55(4)(a), as "recoverable for bodily injury or death, including any action or proceeding based on contribution or indemnification ... from all health care providers and all employees of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the patients compensation fund." § 893.55(4)(b). The term "health care provider" is used both in § 893.55(l)-(2) and in § 893.55(4)(b). Ordinarily, that would mean that the phrase would have one meaning — the same in each subsection. General Castings Corp. v. Winstead, 156 Wis. 2d 752, 759, 457 N.W.2d 557, 561 (Ct. App. 1990). This is one of those rare instances where it does not.

¶ 43. In ascertaining what "health care provider" means in Wis. Stat. § 893.55(1), the main limitation-of-actions provision in § 893.55, Clark v. Erdmann, 161 Wis. 2d 428, 438-439, 468 N.W.2d 18, 22 (1991), held that the phrase was not ambiguous: "The term 'health care provider' in sec. 893.55, Stats., plainly applies to anyone who professionally provides health care to others." Thus, an action against a podiatrist was governed by time-limitations imposed by § 893.55. Clark, 161 Wis. 2d at 439-441, 468 N.W.2d at 22-23. In support of that conclusion, Clark also noted that podiatrists were once included within Wis. Stat. ch. 655's definition of "health care provider," Clark, 161 Wis. 2d at 439-440, 468 N.W.2d at 22-23, and, also, that podiatrists were licensed by the Medical Examining Board, id., 161 Wis. 2d at 439, 468 N.W.2d at 22. We followed Clark in Webb v. Ocularra Holding, Inc., 2000 WI App 25, ¶¶ 8-15, 232 Wis. 2d 495, 501-509, 606 N.W.2d 552, 556-559 (optometrist), overruled on other grounds, Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860; Arenz, 224 Wis. 2d at 512-515, 592 N.W.2d at 298-299 (chiropractor); and Ritt v. Dental Care Associates, 199 Wis. 2d 48, 60-64, 543 N.W.2d 852, 856-858 (Ct. App. 1995) (dentist). In all three cases, we relied, in part, on the fact that each of the professionals was required to be licensed before they could practice. Webb, 2000 WI App 25, ¶ 15, 232 Wis. 2d at 509, 606 N.W.2d at 559; Arenz, 224 Wis. 2d at 515, 592 N.W.2d at 298-299; and Ritt, 199 Wis. 2d at 61-62, 543 N.W.2d at 856-857.

¶ 44. This appeal does not, however, concern whether the Phelpses' action was brought timely. Rather, as material to our discussion in this part of our opinion, the dispute here centers on whether the limit on recoverable noneconomic damages applies. Significantly, there is no reason — other than, perhaps, the arcana of the legislative process — why the time limitations in Wis. Stat. § 893.55(1) — (3) and the limitations on the recovery of noneconomic damages in § 893.55(4)-(5) could not have been placed in separate sections, rather than different subsections of the same section.

¶ 45. The legislature has unambiguously declared that the cap on noneconomic damages in Wis. Stat. § 893.55(4)(b) applies only to those who are health-care providers under Wis. Stat. ch. 655, and to "employees of health care providers" as the phrase is further limited by § 893.55(4)(b). Thus Wis. Stat. § 655.017 provides:

The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider if the act or omission occurs on or after May 25, 1995, and for acts or omissions of an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits under s. 893.55(4)(d) and (f).

(Emphasis added.) As we have seen, Dr. Lindemann was not a "health care provider" as that term is defined by ch. 655. Similarly, § 893.55(4)~(5) (unlike § 893.55(l)-(3)), makes special reference to ch. 655.

¶ 46. First, as we have already seen, Wis. Stat. § 893.55(4)(b) provides:

The total noneconomic damages recoverable for bodily injury or death, including any action or proceeding based on contribution or indemnification, may not exceed the limit under par. (d) for each occurrence on or after May 25, 1995, from all health care providers and all employees of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the patients compensation fund.

(Emphasis added.) The "patients compensation fund" refers to the Wisconsin Patients Compensation Fund established by Wis. Stat. § 655.27. Sections 893.55(4) (e) and 893.55(5) also refer to Wis. Stat. ch. 655. Thus, § 893.55(4)(e) provides:

Economic damages recovered under ch. 655 for bodily injury or death, including any action or proceeding based on contribution or indemnification, shall be determined for the period during which the damages are expected to accrue, taking into account the estimated life expectancy of the person, then reduced to present value, taking into account the effects of inflation.

And § 893.55(5) provides:

Every award of damages under ch. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of injury to the date of award and for the period after the date of award, without regard to the limit under sub. (4) (d):
(a) Pain, suffering and noneconomic effects of disability.
(b) Loss of consortium, society and companionship or loss of love and affection.
(c) Loss of earnings or earning capacity.
(d) Each element of medical expenses.
(e) Other economic injuries and damages.

The provisions in § 893.55 regulating the award of damages, including the award of noneconomic damages are thus inextricably bound to ch. 655. As material to this appeal, the Patients Compensation Fund can be liable only for those "health care providers" who fall within the definition in Wis. Stat. § 655.001(8), and, as we have seen, Dr. Lindemann is not such a person. See Turner v. City of Milwaukee, 193 Wis. 2d 412, 420, 535 N.W.2d 15, 17 (Ct. App. 1995) (when statutes on the same subject conflict or are inconsistent with one another, courts must attempt to harmonize them in order to effectuate the legislature's intent).

¶ 47. We recognize that the exclusion from Wis. Stat. ch. 655 of first-year residents who have their M.D. degrees but are not yet licensed, and those provisions with which that chapter is in synergy, is anomalous because they, like licensed physicians, provide healthcare services to patients. But this is what the legislature has done; it can remove the anomaly if it desires. See Clark, 161 Wis. 2d at 439, 468 N.W.2d at 22.

V Damage Awards.

¶ 48. Finally, Physicians Insurance and Dr. Linde-mann contend that the trial court erred in awarding to Mr. and Mrs. Phelps damages for the emotional distress they suffered as a consequence of Adam's death. They make two arguments. First, they contend correctly that Wis. Stat. ch. 655 does not permit the award of such damages. See Wis. Stat. § 655.017. Second, they assert that the evidence adduced at the trial does not support the award. We have already held in Section III of this opinion, however, that ch. 655 does not apply to medical-college graduates who are not licensed. Thus, we reject their first contention. As to their second contention, the validity of any damage award will turn on the evidence produced at that new trial.

¶ 49. Physicians Insurance and Dr. Lindemann also argue that the award of damages to Mr. and Mrs. Phelps's surviving children for the loss of their mother's society and companionship violates public policy. Their briefs on appeal do not, however, explain why that would be so, other than to set out the recognized public-policy factors without amplifying discussion. We do not decide issues that are inadequately briefed. See Vesely v. Security First Nat'l Bank of Sheboygan Trust Dep't, 128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593, 598 n.5 (Ct. App. 1985).

VI. Summary.

¶ 50. For the reasons set out above, we conclude that: (1) the trial court erred in not giving Physicians Insurance and Dr. Lindemann the jury trial they demanded; (2) the trial court erred insofar as it determined that Dr. Lindemann was to be held to the standard of care applicable to licensed physicians; (3) further fact-finding is needed to determine whether Dr. Worthington's November 30, 1998, letter is protected from disclosure by Wis. Stat. § 146.38; (4) the trial court ruled correctly that the cap on noneconomic damages imposed by Wis. Stat. § 893.55(4)(b) does not apply here; (5) Wis. Stat. ch. 655 does not.apply to Dr. Lindemann's alleged failure to properly treat Mrs. Phelps; and (6) any decision on the appropriateness of any damage award must await the evidence adduced at the retrial.

By the Court. — Judgment reversed and cause remanded with directions.

       Although parties other than Physicians Insurance, Dr. Lindemann, and St. Joseph's Hospital were named as defendants, neither those other parties nor St. Joseph's Hospital are parties to this appeal. St. Joseph's Hospital, its insurer, and the Wisconsin Patients Compensation Fund, which was also named as a defendant in both the original and amended summons and complaint, were dismissed by stipulation in July, 2001.

       Physicians Insurance and Dr. Lindemann demanded a jury trial in their answer to the amended complaint.

       At oral argument, counsel for the Phelpses explained that he was referring to circuit court decisions, at least one of which was affirmed in an unpublished decision of this court. This was entirely proper; Phelpses' counsel was not "citing" an unpublished decision of this court, see Wis. Stat. Rule 809.23(3) (with some exceptions, unpublished decisions of the court of appeals may not be cited), but, rather decisions of the circuit court, the citation of which is permissible, Brandt v. Labor & Indus. Review Comm'n, 160 Wis. 2d 353, 362-365, 466 N.W.2d 673, 676-677 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992). Moreover it is proper to apprise court and counsel whether the circuit court decision has been upheld, reversed, or modified on appeal. Id., 160 Wis. 2d at 364, 466 N.W.2d at 677. For completeness, however, and without violating Rule 809.23(3), we note that the unpublished decision of this court, identified by counsel in response to our question, affirming a circuit-court ruling referenced in the Phelpses' December 2 letter is not material to the jury-fee-waiver issue we decide here.

       As we have seen, Milwaukee County Cir Ct. Rule 371 provides: "Any party who has made a demand for jury trial pursuant to See. 805.01(2), Wis. Stats., shall have no more than thirty (30) days following the first scheduling/pre-trial conference to pay the jury fee."

       The Seventh Amendment to the United States Constitution " 'does not apply to the states. Nevertheless, we may be guided by the federal cases interpreting that provision.'" Guzman v. St. Francis Hosp., Inc., 2001 WI App 21, ¶ 10, 240 Wis. 2d 559, 575, 623 N.W.2d 776, 784 (quoted source omitted).

       We recognize that Johnson v. Agoncillo, 183 Wis. 2d 143, 515 N.W.2d 508 (Ct. App. 1994), was overruled sub silentio on other grounds by State v. Messelt, 185 Wis. 2d 254, 518 N.W.2d 232 (1994). See State v. Delgado, 215 Wis. 2d 16, 26 n.2, 572 N.W.2d 479, 483-484 n.2 (Ct. App. 1997) (recognizing that Johnson was overruled sub silentio by Messelt), rev'd on other grounds, 223 Wis. 2d 270, 588 N.W.2d 1 (1999).

       WISCONSIN Stat. § 146.38 is generally referred to as a "peer review" provision. Franzen v. Children's Hospital of Wisconsin, Inc., 169 Wis. 2d 366, 383-384 n.29, 485 N.W.2d 603, 609 n.29 (Ct. App. 1992), characterizes this as "not only inappropriate" hut "actually misleading." Nevertheless, as we have seen in the main body of this opinion, the legislature has, itself, referred to "health care services review" as "peer review." Wis. Stat. § 655.27(lm). We refer to the statute by its formal title because it seems to be more accurate, although we recognize that titles "are not part of the statutes." Wis. Stat. § 990.001(6).

       The trial court was referencing its decision on whether Wis. Stat. ch. 655's cap on noneconomic damages applied to Dr. Lindemann. We discuss that aspect of the trial court's ruling below.

       Dr. Lindemann and Physicians Insurance also argue that Dr. Lindemann should be considered to be St. Joseph's Hospital's "borrowed employee" and thus within Wis. Stat. § 893.55(4)(b) as an "employeeü of [a] health care provider[]." The trial court made no findings on that issue. As noted, we cannot find facts. The parties and the trial court are free to explore this issue on remand.

       By letter dated March 30, 2004, Dr. Lindemann and Physicians Insurance suggest that we should hold our decision in this appeal pending the Wisconsin Supreme Court's decisions in the following cases: Maurin v. Hall, No. 00-0072 (oral argument heard by the supreme court on April 7, 2004), and Pierce v. Physicians Insurance Co. of Wisconsin, Inc., No. 01-2710 (oral argument to be heard by the supreme court on April 28, 2004). According to the supreme court's web site, the Maurin case will present the following issues: "Are the caps on noneconomic damages in a wrongful death case constitutional?" and "Can the plaintiffs in a medical malpractice action, where there is a death caused by medical negligence, recover both noneconomic damages for medical malpractice and wrongful death?" http://www.wicourts.gov/html/sc/SCCASES.htm. As the Phelpses point out in their letter of April 2, 2004, opposing any delay, neither of these issues were presented to the trial court in this case or argued on appeal before us.
      According to the supreme court's web site, the Pierce case will present the following issue: "Can a mother who gave birth to a stillborn child recover 'bystander' damages under ch. 655 for negligent infliction of emotional distress, see Finnegan v. Wisconsin Patients Compensation Fund, 2003 WI 98, 263 Wis. 2d 574, 666 N.W.2d 797 and Bowen v. Lumbermen's Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994)?" http://www. wicourts.gov/html/sc/SCCASES.htm. Although the Pierce decision may impact this case, its application vel non will depend on the facts adduced at the trial on remand. We agree with the Phelpses that we should not hold this decision pending either Maurin or Pierce.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Kenneth A. Hudson, Defendant-Appellant.
    Court of Appeals

      No. 03-2083-CR.

      Submitted on briefs April 6, 2004.

    Decided April 27, 2004.

    2004 WI App 99
    (Also reported in 681 N.W.2d 316.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David D. Cook of Monroe.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition for Review denied 9-16-04.

   CANE, C.J.

¶ 1. Kenneth Hudson appeals orders denying him independent and court-ordered postcon-viction deoxyribonucleic acid (DNA) testing of various items. He argues the trial court erred by concluding Wis. Stat. § 974.07(6) did not allow him to independently test physical evidence in the State's possession that contains biological materials. Because the State concedes the trial court erred by construing the statute to prevent independent testing of certain items at Hudson's expense, subject to protective conditions imposed by the trial court, we reverse the order entered March 25, 2003. Hudson also claims the trial court erred by refusing to order the items be tested under § 974.07(7)(a). Because we agree with the trial court that Hudson has not shown a reasonable probability he would not have been convicted if the exculpatory DNA testing results had been available before, we affirm the order entered July 16, 2003.

Background

¶ 2. On June 25, 2000, David Carnot was working in his yard when he heard a woman screaming. He ran through a wooded area toward the source of the screams. When Carnot arrived at Plank Road, he saw a man, later identified as Hudson, hanging onto an opened truck door, standing over a woman later identified as Shanna Van Dyn Hoven. Carnot, who was carrying a garden rake, came down the roadside and yelled, demanding to know what was going on.

¶ 3. Hudson jumped into his truck, put it into gear, accelerated, and drove straight at Carnot. Carnot ran and tried climbing a nearby fence, but Hudson's truck slammed into the fence before Carnot cleared the top. The impact caused Carnot to fall on top of the truck, from which he then jumped over the fence and ran into a nearby quarry. After freeing the truck from the fence's tangle, Hudson sped away down Plank Road. Carnot returned to the roadside and saw Van Dyn Hoven lying in a pool of blood. By that time, she had stopped moving and was no longer breathing. Carnot ran to a neighbor's house and they called 911.

¶ 4. Melvin Vanden Bloomer testified he heard a loud noise coming from Plank Road. He saw Hudson's truck approaching with a flat front driver's side tire. He saw Hudson throw something out of the window, which Vanden Bloomer shortly thereafter discovered was a bloody rag.

¶ 5. Sergeant Robert Patschke saw Hudson's truck traveling on a highway, noticed the flat tire, and turned his vehicle around to investigate. As Patschke pursued Hudson's truck, Hudson did not slow down, but turned onto Highway 41 and accelerated. Patschke activated his siren and a chase ensued. After reaching speeds of 80-90 m.p.h., Hudson was finally forced to pull over where he was removed from the truck, escorted to the ground, and handcuffed. Patschke observed a blood-soaked passenger seat and a bloody knife laying on the floor beneath the brake pedal. Patschke also saw Hudson had blood on different parts of his body. Patschke placed Hudson in the back of the squad car. Fifteen minutes later, Patschke noticed Hudson was slouched on his side and hyperventilating, at which point an ambulance transported Hudson to a hospital.

¶ 6. Later that night, Hudson was transferred to the Kaukauna Police Department and interviewed by John Manion, the assistant chief of the Kaukauna Police Department, and lieutenant Kevin Shepardson. Hudson claimed he bought the knife to gut and clean some fish he recently caught. Manion indicated that while Hudson first denied stabbing anyone, he later made several incriminating statements, including the incomplete sentence: "I got into an argument with a girl and I think I stabbed ...Hudson said he fought with the girl who was running and tried to push her into the truck. After he forced her into the passenger side, Hudson reentered the truck but the girl got out. Hudson said he believed he stabbed her while she was in the truck.

¶ 7. Additionally, when Manion and Shepardson transported Hudson to the county jail, Hudson inquired what charges he was being booked for, and Manion indicated they would be homicide related because Van Dyn Hoven died as a result of the stab wounds. Manion testified Hudson started to yell and then cried and said, "Why did I stab her?" Manion testified Hudson then stated, "I didn't want for her to die. This is all because of my mother. I didn't even know her." After asking if Wisconsin had the death penalty, Hudson said his father and brother were looking down on him then, seeing what he had done.

¶ 8. State Crime Lab analyst John Ertl testified he performed DNA typing on various bloodstains: three from Hudson's truck, two from Hudson's person, and one from the knife. The blood from the knife and Hudson's vehicle was Van Dyn Hoven's. The bloodstain from Hudson's hand showed DNA from both Hudson and Van Dyn Hoven, while a stain from Hudson's left foot was not human.

¶ 9. The jury convicted Hudson of first-degree intentional homicide. Hudson later filed a postconviction motion pursuant to Wis. Stat. § 974.07 for independent or court-ordered DNA testing of ten items not previously tested: seven containing biological evidence in the form of blood, one item containing Hudson's fingernail clippings, and two items containing Van Dyn Hoven's fingernail swabbings and scrapings. Hudson sought this evidence for two purposes. First, it would undermine the credibility of the police officers who testified to Hudson's "alleged" confession. Second, it would confirm a theory of Hudson's case: that he was the victim of a Kaukauna Police Department conspiracy that was covering up for the real killer, possibly the citizen-witness David Carnot, son of a recently retired sergeant of the Kaukauna Police Department. According to Hudson, he never had physical contact with Van Dyn Hoven, the police poured a Styrofoam cupful of animal blood on him (and then smeared it on his hands and chest) while he was sleeping in the back of a squad car after he was arrested, and the police either laced the knife "purportedly found" in Hudson's vehicle with the blood that soaked the truck's passenger seat or contaminated it with blood obtained during Van Dyn Hoven's autopsy.

¶ 10. The trial court concluded Wis. Stat. § 974.07(6) does not provide a defendant with the means for independent DNA testing. The court also denied Hudson's court-ordered testing request because it concluded Hudson could not establish a reasonable probability he would not have been convicted even if the additional DNA testing results were exculpatory. Hudson appeals.

Discussion

¶ 11. Hudson first argues that under Wis. Stat. § 974.07(6)(a), the State must "make available" physical evidence containing biological material for independent DNA testing. Subsection (6) (a) states:

Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:
1. Findings based on testing of biological materials.
2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material. (Emphasis added.)

¶ 12. In the trial court, the State argued, and the court agreed, that Wis. Stat. § 974.07(6) did not compel the State to turn over evidence for independent DNA testing but only required the State to provide a movant access to review the material in order to determine which specific items he or she would like tested pursuant to a subsequent court order under subsection (7). On appeal, the State has reversed its position and concedes the trial court erred by construing the statute to prevent independent testing of certain items at Hudson's expense, subject to protective conditions imposed by the trial court. See Wis. Stat. § 974.07(6)(c) ("Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of materials requested ... in order to protect the integrity of the evidence."). We accept the State's concession and, therefore, do not address this issue further.

¶ 13. Hudson also argues he is entitled to court-ordered DNA testing under Wis. Stat. § 974.07(7)(a). Subsection (7) (a) requires the trial court to order DNA testing when the following four conditions are met:

A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the folio-wing apply:
1. The movant claims that he or she is innocent of the offense at issue in the motion under sub. (2).
2. It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.
3. The evidence to be tested meets the conditions under sub. (2) (a) to (c).
4. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

The trial court found, and the State argues on appeal, that Hudson could not establish the second condition. In light of the overwhelming evidence supporting Hudson's guilt, the court concluded it was not reasonably probable that Hudson would not have been convicted even if the supposed "exculpatory" DNA testing results showed animal blood. We agree.

¶ 14. At the outset, however, we address the parties' dispute over the standard of review we should employ. Hudson advocates we should review this matter as a mixed question of law and fact, upholding the circuit court's findings of historical fact and reviewing the question of reasonable probability de novo, just as is done in ineffective assistance of counsel cases. See State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996).

¶ 15. The State suggests a different approach. It analogizes this sort of case to those where a defendant seeks a new trial based on newly discovered evidence. The State notes that in a newly discovered evidence case, a defendant must show there is a reasonable probability that a different result would be reached in a new trial. See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997). The State further observes that the supreme court in McCallum declined to undertake a "reasonable probability determination" after it concluded the trial court applied the wrong legal standard. The court stated: "Because the circuit court is in a better position to determine whether a reasonable probability exists that a reasonable jury looking at both the recantation and the original accusation would have a reasonable doubt as to McCallum's guilt, we defer this determination to the circuit court." Id. at 480. The State contends this language strongly implies that we should employ a deferential standard of review.

¶ 16. The State also calls attention to Chief Justice Abrahamson's concurrence in McCallum, where she concluded:

On appellate review, I conclude that an appellate court should review the reasonable probability determination under the erroneous exercise of discretion standard. Having heard both the evidence at the original trial or hearing, or even just the evidence on the motion hearing, a circuit court is in a better position than an appellate court to determine whether confidence in the correctness of the outcome at the original trial or hearing has been undermined.

Id. at 491 (Abrahamson, C.J., concurring). We conclude this approach fits best. Therefore, we review the trial court's "reasonable probability" determination under Wis. Stat. § 974.07(7) under the erroneous exercise of discretion standard. A proper exercise of discretion requires that the trial court rely on facts of record and the applicable law to reach a reasonable decision. Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis. 2d 67, 629 N.W.2d 698. We now consider the substance of Hudson's argument.

¶ 17. Hudson notes Wis. Stat. § 974.07(7)(a)2 requires the circuit court to consider whether he has established, "It is reasonably probable that the movant would not have been .. . convicted ... if exculpatory deoxyribonucleic acid testing results had been available before the... conviction." Thus, he claims the court must assume that DNA testing results would be exculpatory, and must determine how the exculpatory results would have affected the proceedings leading to a conviction considering all of the other evidence. Ultimately, Hudson notes the question is whether it is reasonably probable that exculpatory DNA testing results would raise a reasonable doubt about Hudson's guilt.

¶ 18. Hudson seeks to test ten items: seven containing biological evidence in the form of blood, one item containing Hudson's fingernail clippings, and two items containing Van Dyn Hoven's fingernail swabbings and scrapings. As to the items containing blood, Hudson claims if the tests show animal blood, his theory of the case — that Kaukauna police officers poured animal blood on him while he slept in the back of the squad car shortly after being arrested — would be supported, thus creating a reasonable probability of a reasonable doubt. As to the fingernail evidence, Hudson claims he never had physical contact with Van Dyn Hoven, contrary to the State's theory that he had a vigorous and prolonged struggle with her. Hudson claims the lack of Van Dyn Hoven's DNA under his fingernails and the lack of his DNA or the presence of another's DNA under Van Dyn Hoven's fingernails creates a reasonable probability of a reasonable doubt.

¶ 19. The trial court concluded Hudson had not met his burden because even if the test results would be as he speculates, given the overwhelming evidence of his guilt, there was not a reasonable probability he would not have been convicted. We agree.

¶ 20. Even if we assume that Van Dyn Hoven's DNA is not found on Hudson's fingernail clippings, and Hudson's DNA is not under Van Dyn Hoven's fingernails, and other blood tests positive for non-human blood, none of this adds up to a reasonable doubt in view of the overwhelming evidence of Hudson's guilt. Without detailing all of this evidence, we nóte that not only did Hudson confess to the stabbing on several occasions, albeit somewhat cryptically at times, Van Dyn Hoven's blood was found on the side of his vehicle, on his hand, and on a knife found in his truck.

¶ 21. Consequently, because Hudson has not established a reasonable probability that he would not have been convicted, the trial court did not erroneously exercise its discretion by denying Hudson's motion for court-ordered postconviction DNA testing. Therefore, the order entered July 16, 2003, is affirmed. However, in light of the State's concession, it must "make available" to Hudson the physical evidence containing biological specimens he has demanded for independent DNA testing at Hudson's expense, subject to protective conditions imposed by the trial court. Therefore, the order entered March 25, 2003, is reversed and the matter is remanded.

By the Court. — Orders affirmed in part; reversed in part and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


author: HOOVER, PJ.

text:
    Tracy and Damian Osterhues, Art and Ellen Jacobs, and Andrew and Luella Peterson, Plaintiffs-Respondents-Cross-Appellants, v. Board of Adjustment for Washburn County, Defendant-Co-Appellant, Washburn County, Defendant-Appellant.
    Court of Appeals

      No. 03-2194.

      Submitted on briefs March 22, 2004.

    Decided April 27, 2004.

    2004 WI App 101
    (Also reported in 680 N.W.2d 823.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of R. Michael Waterman of Mudge, Porter, Lundeen & Seguin, S.C. of Hudson.
    On behalf of the defendant-co-appellant, the cause was submitted on the briefs oí William G. Thiel oí Weld, Riley, Prenn & Ricci, S.C. of Eau Claire.
    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the brief of Joseph R. Cincotta of Schweitzer & Cincotta LLP of Milwaukee.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

      Petition for Review granted 8-2-04.

   HOOVER, PJ.

¶ 1. The sole issue on appeal is whether, under Wis. Stat. § 59.694, the Washburn County Board of Adjustment must conduct a de novo hearing when it takes an appeal of the county zoning committee's action. The trial court concluded that it must and remanded the case to the board for further proceedings. Because it concluded that was the disposi-tive issue, it dismissed the plaintiffs' additional claims without prejudice. We conclude that the statute does not require a de novo hearing and reverse the judgment. The cross-appeal requests that, if we reverse the trial court, we reverse the order dismissing the other claims and remand so the trial court may hear the issues it did not reach. The County and the board do not object. Therefore, the cause is remanded with directions to reinstate and proceed with the dismissed claims.

Background

¶ 2. In 2001, Washburn County applied to the zoning committee for a conditional use permit to open a gravel pit: At the public hearing in July, individuals who owned property near the proposed site, Tracy and Damian Osterhues, Art and Ellen Jacobs, and Luella Peterson (collectively, Osterhues), appeared to voice opposition to the permit. The committee, however, granted the County's application. At the August committee hearing, Art Jacobs requested the committee to reconsider its grant of the application. The committee agreed to take the matter up at the September meeting and did so, but did not revoke the permit.

¶ 3. In November, Osterhues appealed to the board of adjustment, which held a hearing on the appeal in January 2002. The board's counsel stated that the board first needed to find error by the committee before it could reverse the permit. Tracy Osterhues argued to the board that it could conduct a de novo review, including taking new testimony from witnesses. The board concluded that its job was only to correct errors and, because the committee had made none, it could not reverse the permit.

¶ 4. Osterhues filed a petition for certiorari with the circuit court, alleging six claims for relief, including that the board had proceeded on the wrong theory of law. The court concluded that the board could conduct a de novo hearing and therefore its determination that it could only correct errors was made on an incorrect view of the law. The court reversed the board's determination on that ground, remanding the case and entering judgment accordingly. The court also entered an order dismissing the six other claims as moot. The County and the board appeal the judgment, arguing the board may not hold a de novo hearing on appeal of the committee's determination. Osterhues cross-appeals the order dismissing the additional claims.

Discussion

¶ 5. On certiorari review of a board of adjustment's decision, the circuit court is limited to considering: (1) whether the board kept within its jurisdiction; (2) whether the board proceeded on the correct theory of law; (3) whether the board's action as arbitrary, oppressive, or unreasonable and represented its will, not its judgment; and (4) whether the evidence was such that the board might reasonably make the decision in question. See Miswald v. Waukesha Co. Bd. of Adj., 202 Wis. 2d 401, 410-11, 550 N.W.2d 434 (Ct. App. 1996). On appeal, we consider these factors as well. Id. at 411. Thus, our review of the circuit court is de novo. Id. at 408. Additionally, a reviewing court must afford a presumption of validity to the board's decision, and the individuals challenging the board's decision bear the burden of overcoming the presumption. See id. at 411.

¶ 6. Here, the trial court determined that the only element in question was whether the board proceeded on the correct theory of law based on Wis. Stat. § 59.694's allocation of powers to the board. Interpretation of a statute is a question of law that we review de novo. Hutson v. Personnel Comm'n, 2003 WI 97, ¶ 31, 263 Wis. 2d 612, 665 N.W.2d 212.

¶ 7. Wisconsin Stat. § 59.694 states in relevant part:

(7) POWERS of board. The board of adjustment shall have all of the following powers:
(a) To hear and decide appeals where it is alleged there is error in an order, requirement, decision or determination made by an administrative official in the enforcement of s. 59.69 or of any ordinance enacted pursuant thereto.
(8) Order on appeal. In exercising the powers under this section, the board of adjustment may, in conformity with the provisions of this section, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

¶ 8. The board interpreted these subsections to mean:

The function of the Board of Adjustment when sitting on an appeal of a [zoning committee] decision such as this is ... to correct any error in the decision on appeal. It is not to re-decide the matter or substitute its thoughts or opinions for those of the committee or administrator who issued the decision brought up on appeal.

¶ 9. The trial court disagreed, concluding that there was ambiguity, inconsistency, or contradiction between Wis. Stat. § 59.694(7)(a) and (8) that "should be resolved in favor of an expansive interpretation of the enforcement agency's scope of review. . . Therefore, "Pursuant to the plain language of (8) the BOA has the same 'power' as the Zoning Committee." Based on its interpretation of § 59.694(8), the court concluded the board had proceeded "on an incorrect theory of law."

¶ 10. We disagree. "The term 'appeal' is frequently used generically to cover any form of appellate review." Village of Williams Bay v. Metzl, 124 Wis. 2d 356, 360, 369 N.W.2d 186 (Ct. App. 1985). The use of the word "appeals" is generally not considered to entitle an appellant to a trial de novo. Kuehnel v. Wisconsin Regis. Bd. of Architects, 243 Wis. 188, 193, 9 N.W.2d 630 (1943). The right to a trial de novo is limited to special situations, particularly those where statutory provisions specifically provide for de novo review on appeal. See id.; Metzl, 124 Wis. 2d at 360.

¶ 11. Here, Osterhues concedes that Wis. Stat. § 59.694(7)(a) and (8) "do not speak in terms of the qualitative nature of the scope of review of the [Board]." That is, there is no explicit grant of authority to review the zoning decision de novo. Thus, the question is whether § 59.694 works in some other way to convey that power. It does not.

¶ 12. Wisconsin Stat. § 59.694(7)(a) mandates the board's power to "hear and decide" appeals where error is alleged. This power is meaningless without the corresponding authority to fashion a remedy, which is the purpose of § 59.694(8). "In exercising the powers under" § 59.694 — that is, powers already specified in other subsections — subsection (8) gives the board the same powers of the zoning committee "to that end" of making an order reversing, affirming, or modifying the committee's decision, not to the end of the actual hearing on or decision of the appeal. Effectively, § 59.694(8) allows the board to create a remedy and avoid remand by making a decision the committee would have the authority to make if the board first determines there is an error to be corrected. It does not convey to the board the authority to conduct a de novo review.

¶ 13. Nonetheless, Osterhues relies on League of Women Voters v. Outagamie County, 113 Wis. 2d 313, 334 N.W.2d 887 (1983), to argue the supreme court has implied a right to a de novo hearing under Wis. Stat. § 59.694(8). However, in League of Women Voters, the only question was whether the appellants, challenging a conditional use permit, were entitled to a contested case review under Wis. Stat. ch. 68. Id. at 326. The supreme court determined they were not. Osterhues contends the court's reasoning is: "you do not get a contested case under the catchall provisions of Ch. 68 because you have a right to the equivalent under § 59.694(8)" and the § 59.694(8) "equivalent" is de novo review. This is not an accurate interpretation.

¶ 14. The supreme court noted one of the jurisdictional requirements for review under Wis. Stat. ch. 68: Administrative determinations subject to review under other statutes are not reviewable under chapter 68. League of Women Voters, 113 Wis. 2d at 322. The court noted that, assuming the appellants were aggrieved persons with standing, the right to appeal the grant of a conditional use permit came from Wis. Stat. § 59.99 (now Wis. Stat. § 59.964), not chapter 68. Id. at 326. In other words, the court concluded that some adequate remedy was available under § 59.694 because the case was a zoning matter. The court did not conclude that the same remedy was available. League of Women Voters stands solely for the proposition that chapter 68 review is not appropriate for reviewing a conditional use permit because § 59.694 provides the correct procedure. It does not say that the correct procedure is a de novo hearing by the board.

¶ 15. Beyond the allegation that the board was supposed to conduct a de novo hearing, Osterhues alleged six other claims for relief. These claims were rendered moot by the trial court's determination that the board proceeded on incorrect law and were ordered dismissed without prejudice. Osterhues cross-appeals the order in the event we would reverse the trial court. The board does not challenge the cross-appeal and the County does not address it.

¶ 16. The judgment is reversed. The board proceeded on the correct theory of law. The order is reversed, and the cause is remanded with directions to reinstate and proceed with hearing the remaining six claims for relief.

By the Court. — Judgment and order reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       While both Kuehnel v. Wisconsin Regis. Bd. of Architects, 243 Wis. 188, 9 N.W.2d 630 (1943), and Village of Williams Bay v. Metzl, 124 Wis. 2d 356, 369 N.W.2d 186 (Ct. App. 1985), deal with whether on certiorari appeal to the trial court the trial should be de novo, we find the cases persuasive for this situation as well. In those cases, as well as here, the question is what rights are conveyed by use of the word "appeals" in a statute providing review procedures.

       Still, Osterhues argues that "While there is a sense running through Appellants' Briefs that the Courts should be wary of sanctioning what is in effectü multiple levels of so-called de novo review," these multiple levels already exist. Osterhues directs our attention to Wis. Stat. §§ 227.42(l)(a) and 799.207(2)(b). The first allows a contested case hearing in an administrative agency action and the second allows a de novo trial of a court commissioner's small claims decision. However, Osterhues' argument underscores the meaning of Kuehnel and Metzl: Both statutes cited represent that "special situation" where the legislature has explicitly granted the authority for de novo review.


author: PETERSON, J.

text:
    Cheryl Olson, and Kenneth Olson, Plaintiffs-Appellants, v. Red Cedar Clinic, and Mayo Insurance Company, Ltd., a foreign corporation, Defendants-Respondents.
    Court of Appeals

      No. 03-2198.

      Submitted on briefs March 15, 2004.

    Decided April 27, 2004.

    2004 WI App 102
    (Also reported in 681 N.W.2d 306.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of J. Drew Ryberg of Ryberg & Happe, S.C., Eau Claire.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Donald K. Schott, Sarah E. Coyne and Emily M. Feinstein of Quarles & Brady LLP, Madison.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 8-2-04.

   PETERSON, J.

¶ 1. Kenneth and Cheryl Olson appeal a summary judgment dismissing their claims against Red Cedar Clinic. The Olsons argue the clinic violated Wis. Stat. § 895.50 by wrongfully disclosing to their son's school information about Cheryl contained in their son's records. They also argue the clinic violated Cheryl's right to privacy under Wis. Stat. § 51.30. The circuit court determined the clinic had no duty to Cheryl under either statute and therefore she had no claim. We agree that the Olsons have no claim against the clinic and affirm the judgment.

BACKGROUND

¶ 2. The Olsons' son Jacob received counseling from Red Cedar Clinic in February and March 1999. At one of Jacob's counseling sessions, attended by Kenneth, personal information about Cheryl was discussed. Cheryl was not at that session. During this same period, Cheryl was also receiving treatment at the clinic.

¶ 3. Later, Jacob was having difficulty at school and the school psychologist wanted to see Jacob's clinic records. The Olsons were willing to authorize release of Jacob's records to the school, but Cheryl did not want any information regarding herself to be disclosed. She signed an authorization that she claims required exclusion of any information about her.

¶ 4. The clinic sent Jacob's records to the school psychologist. Contrary to Cheryl's expectations, the records contained information about her. Cheryl promptly revoked the authorization. She also went to the school and redacted portions of the record she did not want the school to see.

¶ 5. The Olsons filed this action against the clinic. The clinic filed a motion for summary judgment. The court granted the motion, determining that the clinic had no duty to Cheryl because the records were Jacob's, not Cheryl's. The court denied the Olsons' motion for reconsideration.

DISCUSSION

¶ 6. We review summary judgments independently, applying the same standard as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Cody v. Dane County, 2001 WI App 60, ¶ 11, 242 Wis. 2d 173, 625 N.W.2d 630. We view the facts in the light most favorable to the nonmoving party. Id.

A. Right to Privacy

¶ 7. The Olsons first argue that the clinic violated Cheryl's right to privacy under Wis. Stat. § 895.50(2)(a). That section defines invasion of privacy as the "[intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass." Disclosure of medical records has been found to be an invasion of privacy. See generally, Pachowitz v. LeDoux, 2003 WI App 120, 265 Wis. 2d 631, 666 N.W.2d 88.

¶ 8. In an action for invasion of privacy under Wis. Stat. § 895.50, the Olsons must prove: (1) there has been a "public disclosure" of facts regarding Cheryl, (2) the facts disclosed were private, (3) the private matter is one that would be highly offensive to a reasonable person of ordinary sensibilities, and (4) the clinic acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter or with actual knowledge that none existed. See Zinda v. Louisiana Pac. Corp., 149 Wis. 2d 913, 929-30, 440 N.W.2d 548 (1989).

¶ 9. The first element requires that there was a public disclosure of facts regarding Cheryl. Public disclosure in this context means that "the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Id. at 929 (citing Restatement (Second) of Torts § 652D cmt. a). Public disclosure may also occur "where 'a special relationship exists between the plaintiff and the 'public' to whom the information has been disclosed.' " Hillman v. Columbia County, 164 Wis. 2d 376, 395 n.10, 474 N.W.2d 913 (Ct. App. 1991) (citations omitted).

¶ 10. Here, the records were sent to only one person: the school psychologist. Further, the psychologist was prohibited from telling anyone what was in the records. See Wis. Admin. Code § HFS 92.03(l)(h) (school psychologists may not reveal "facts, data, information, records or communication" about a patient without the patient's consent). The Olsons assert the records were left on a kitchen table at the school so anyone could have seen them. However, the records were in an envelope and there is no evidence that they in fact were seen by anyone other than the school psychologist. In order to find public disclosure, "the matter must be regarded as substantially certain to become one of public knowledge." Zinda, 149 Wis. 2d at 929 (citation omitted). There is nothing in the record to suggest that this was the case here.

¶ 11. Relying on Pachowitz, Cheryl asserts that although the disclosure here was only to the school psychologist, she had a special relationship with the psychologist. However, other than citing Pachowitz, Cheryl does not develop this argument. We need not consider arguments broadly stated but not specifically argued. Fritz v. McGrath, 146 Wis. 2d 681, 686, 431 N.W.2d 751 (Ct. App. 1988). In any event, we consider the disclosure to the psychologist to be materially different from the disclosure in Pachowitz. There, the private information was told to Pachowitz's co-worker, who in turn told other people. The defendant knew that the person she gave the information to had "loose lips." We stated that the defendant "should have appreciated the risk that [the co-worker] would further disclose Pachowitz’s private information." Pachowitz, 265 Wis. 2d 631, ¶ 27. Here, there is no evidence that Cheryl and the school psychologist had any relationship whatsoever, let alone a special relationship. Further, there is no evidence that the psychologist was known to have "loose lips." To the contrary, because of the psychologist's obligation to keep the information confidential, there was virtually no risk that he would further disclose Cheryl's information.

¶ 12. In order for the Olsons' claim to succeed under Wis. Stat. § 895.50(2)(c), all four elements must be proven. There are no material facts in dispute regarding the first element and the Olsons' claim fails. Therefore we need not discuss the remaining elements.

B. Unauthorized Disclosure

¶ 13. The Olsons also argue the clinic disclosed information about Cheryl without authorization, con-tary to Wis. Stat. § 51.30. The Olsons assert that the authorization specifically excluded release of any information about Cheryl in Jacob's records. Thus, the Olsons claim a violation of Wis. Stat. § 51.30(9)(a), which allows for damages for release of medical records without consent.

¶ 14. Wisconsin Stat. § 51.30(4) states that treatment records are confidential to the subject individual and can only be released with that person's consent. The subject individual is the one who receives treatment. Wis. Stat. § 51.30(l)(b). In this case that individual is Jacob. Thus, the right of confidentiality is Jacob's, not Cheryl's. In addition, the fact that the Olsons had the power to consent to the release of Jacob's records does not give them an expectation of confidentiality as to information about them in Jacob's records. Wisconsin Stat. § 51.30(5) allows parents to authorize the release of their minor child's information, but it does not change the nature of the privilege.

¶ 15. The Olsons further argue that because Cheryl was also a patient at the clinic, the clinic had an obligation to protect her privacy. This statement is true as to her own medical records. But the simple fact that she is a patient at the same clinic as Jacob does not give her confidentiality rights under Wis. Stat. § 51.30(4) as to Jacob's records.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.