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Wisconsin court: Witnesses cannot seek medical damages

MADISON, Wis. (AP) — The Wisconsin Supreme Court on Friday tossed out a $200,000 award to a father who watched one of his twin sons die during birth in 1998.

In a case closely watched by doctors and trial lawyers, the court ruled 5-2 that Wisconsin’s medical malpractice law does not allow bystanders to seek damages for emotional distress.

A judge in 2003 awarded Gregory Phelps of Pewaukee the damages as part of a $990,000 award to his family for wrongful death and medical malpractice.

Phelps had arrived at St. Joseph’s Hospital in Milwaukee after his wife, who had been identified as a high-risk patient. She was in intense pain and had not been treated properly by an unlicensed, first-year medical resident. Phelps helped his wife get to a commode, where she reached down and felt a baby’s toes extending from her.

He rushed to a nurses’ desk, where he found a doctor to deliver the baby, Adam. But attempts to resuscitate Adam failed, and the baby was pronounced dead as a result of asphyxia. The other twin, Kyle, was delivered and survived.

Writing for the majority, Justice Patience Roggensack said the medical resident, who was in a Medical College of Wisconsin training program, was acting as an employee of the hospital and therefore covered by the malpractice law.

The law spells out what claims can be made against health care providers and their employees, but makes no mention of allowing emotional distress claims by bystanders, she said.

In a dissent joined by Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley said Phelps had satisfied every element of a claim for emotional distress.

"Phelps witnessed the spontaneous delivery of Adam," she wrote. "He witnessed the injuries and death of his son. I conclude that Phelps had a firsthand observation of the traumatic, injury-producing event."

The case became a flashpoint in Abrahamson’s re-election campaign in February after The Associated Press reported she collected a total of $11,500 in donations from three lawyers representing the Phelpses.

Her challenger, Judge Randy Koschnick, said it was unethical for her to take the money without recusing herself. Abrahamson brushed that off by saying she had raised so much money — nearly $1.4 million in total — she was beholden to no one donor.

The American Medical Association and the Wisconsin Medical Society, which represent doctors, had urged the justices in a friend-of-the-court brief to throw out the damages. They argued that allowing witnesses to seek malpractice damages would expand the potential liability of doctors and prompt more lawsuits.

But the Wisconsin Association for Justice, which represents trial lawyers, said that victims such as Phelps should be compensated for witnessing such traumatic events.