SUPREME COURT OF WISCONSIN

Transcription

1 SUPREME COURT OF WISCONSIN THERESA C. WEBORG, Individually and as Personal Representative of the ESTATE OF WILLIAM N. WEBORG, deceased, NICHOLAS WEBORG, by his Guardian ad Litem, J. Michael End, MITCHELL WEBORG, by his Guardian ad Litem, J. Michael End, MICHAEL WEBORG, by his Guardian ad Litem, J. Michael End, Plaintiffs-Appellants-Petitioners, v. APPEAL NO. 2010AP DONALD B. JENNY, M.D., ERIK M. BORGNES, M.D., JOSEPH J. REBHAN, M.D., and PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., Defendants-Respondents. Door County Trial Court Case No. 2007CV59 Honorable D. Todd Ehlers AMICUS CURIAE BRIEF OF WISCONSIN MEDICAL SOCIETY, INC. and WISCONSIN HOSPITAL ASSOCIATION, INC. Guy DuBeau Wisconsin Bar No Amicus Curiae Counsel for Wisconsin Medical Society, Inc. and Wisconsin Hospital Association, Inc. Axley Brynelson, LLP 2 East Mifflin Street, Suite 200 Madison, WI (608) gdubeau@axley.com

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... 1 I. ALL COLLATERAL SOURCE EVIDENCE IS ADMISSIBLE UNDER THE EXPRESS TERMS OF SECTION (7) A. Evidence Subject To (7) Is Not Subject To A Relevance Analysis... 4 B. Evidence Subject to (7) Is Not Subject To a Balancing.. Analysis... 4 II. COLLATERAL SOURCE EVIDENCE NEED NOT BE HANDLED IN ANY FUNDAMENTALLY DIFFERENT MANNER THAN ANY OTHER EVIDENCE CONCLUSION FORM AND LENGTH CERTIFICATION ELECTRONIC FILING CERTIFICATION i

3 TABLE OF AUTHORITIES Cases Aicher v. Wis. Patients Compensation Fund, 2000 WI 98, 78, 237 Wis. 2d 99, 613 N.W.2d Brunton v. Nuvell Credit Corp WI 50 16, 325 Wis. 2d 135, 785 N.W.2d Cf. Koffman v. Leichtfuss, 2001 WI 111, 53 54, 246 Wis. 2d 31, 630 N.W.2d ,9 Eastin v. Broomfield, 570 P.2d 744, 753 (Ariz. 1977)... 7,8 Lagerstrom v. Myrtle Werth Hosp., 2005 WI 124, 285 Wis. 2d 1, 700 N.W.2d... passim State v. Larson, 2003 WI App 235, 6, 268 Wis. 2d 162, 672 N.W.2d... 4 State v. Johnson, 184 Wis.2d 794, 318 N.W.2d 759 (1994) Weborg v. Jenny, 2011 WI App 114, 15, 336 Wis.2d 473, 801 N.W. 2d Statutes Wis. Stats., (4)(a)... 7 Wis. Stats., (5)... passim Wis. Stats., (5)(c)&(e) Wis. Stats., (7)... passim Wis. Stats., passim Wis. Stats., passim Other Authorities Wis. Civ. J. I Wis. Civ. J. I Wis. Civ. J.I ii

4 INTRODUCTION As respondents have ably noted, the posture of this case suggests it should be disposed of on procedural grounds. There is general agreement that the collateral source evidence, which is the subject of part of this appeal, was admitted as Wis. Stats., (7) requires, on the issue of damages. The parties, by stipulation, removed the damage issue from consideration after the evidence was received. The jury addressed the issue of the physicians negligence and determined that none of them were negligent. The jury was properly instructed on what constitutes medical negligence. As the Court of Appeals correctly noted, reviewing courts should presume juries correctly follow the instructions given them. Weborg v. Jenny, 2011 WI App 114, 15, 336 Wis.2d 473, 801 N.W. 2d 348, citing State v. Johnson, 184 Wis.2d 794, 822, 318 N.W.2d 759 (1994). Against such a background it is not at all difficult to conclude, as did the Court of Appeals, that even if it were somehow error to admit the questioned evidence, doing so was not prejudicial. This is a more than adequate basis to affirm the Court of Appeals. Amici, however, recognize that there is a larger issue underpinning the arguments of appellants dealing with Wis. Stats., (7) and the collateral source evidence admitted by the trial court. Specifically, the Weborgs claim that the nature of the collateral source evidence life insurance proceeds and social security payments was so inherently prejudicial that it tainted the jury s analysis 1

5 of the liability claim. That is, at best, a speculative argument, but it is grounded in a deeper concern that has plagued trial courts since this Court issued its decision in Lagerstrom v. Myrtle Werth Hosp., 2005 WI 124, 285 Wis. 2d 1, 700 N.W.2d 201: the evidence is clearly admissible (7) mandates as much but the statute itself is silent as to the purposes for which collateral source payments are admissible. Lagerstrom at 32. The corollary to this question is the very practical question facing this trial court and trial courts in the future: how should juries be instructed regarding this evidence? The answer is really quite simple. The collateral source evidence permitted by (7) should be received just as any other admissible evidence is received, its purpose being guided by the facts and nuances of each individual case. Then, with the exception of collateral source payments tied to a subrogated interest 1, juries should be instructed just as they always are with reference only to general categories of evidence that may bear on the ultimate fact questions they are called upon to answer. There is no reason to single collateral source evidence out for any special treatment. When this principled is recognized, it provides a solid basis for affirming the court below on substantive grounds. To the extent this Court now wishes to explore the questions left unanswered by Lagerstrom, amici submit the following by way of suggested framework. 1 This subset of collateral source evidence was addressed in Lagerstrom, so as to give effect to the final sentence of (7) regarding protection of subrogated interests. 2

6 I. ALL COLLATERAL SOURCE EVIDENCE IS ADMISSIBLE UNDER THE EXPRESS TERMS OF SECTION (7). Section (7) is but a mere 50 words long, but covers a large area of the law of damages. Id. 28. It makes clear that Evidence of any compensation for bodily injury received from sources other than the defendant to compensate a claimant for the injury is admissible in an action to recover damages for medical malpractice. Wis. Stats., (7)(emphasis supplied). This language is clear, straightforward and has led this Court to observe that it appears to encompass all damages in a medical malpractice action and to make evidence of all collateral source payments admissible in regard to all damage claims. Lagerstrom at 28. In light of the clear statutory language and binding interpretive precedent, the Weborgs arguments that collateral source evidence is irrelevant, or alternatively, is subject to a Wis. Stats., balancing analysis, are unfounded. The evidentiary rules cited by the Weborgs deal with the question of whether evidence is admissible. The question of collateral source evidence admissibility in medical malpractice cases has already been answered by the legislature: collateral source evidence is admissible in an action to recover damages for medical malpractice. Wis. Stats., (7). This Court has previously recognized that (7) is a modification of the rules of evidence specifically to allow evidence of collateral payments to be heard by the jury. Lagerstrom at 48. The statute encompasses all manner of collateral source payments including, as is at 3

7 issue here, governmental and life insurance payments. Id. at 30. The law is already beyond the point of the issues raised by appellants. A. Evidence Subject To (7) Is Not Subject To A Relevance Analysis. Appellants argue first that the evidence was not relevant (Apps brf. at pp ), but that logically cannot be. Evidence which is not relevant is not admissible. Wis. Stats., The inescapable conclusion is that, because it is admissible under (7), it is relevant in some fashion. 2 The material fact it is designed to assist the jury with is the amount, if any, of the financial impact of the alleged negligence. That was the intent of the legislature. Lagerstrom at 50. Additionally, amici note that the provisions of are of general applicability, and that (7) is specific to medical negligence actions. It is well established that when two statutory schemes address the same topic, the more specific is to be given effect. State v. Larson, 2003 WI App 235, 6, 268 Wis. 2d 162, 672 N.W.2d 322. By this principle, any analysis of relevance must give way to the terms of (7), which, by their nature, presume relevance. B. Evidence Subject to (7) Is Not Subject To a Balancing Analysis. Similarly, appellants argue that the evidence is subject to a balancing test to determine if it is excludable. (Apps. brf. at pp ) Again, that is a logical non sequitur. Section looks at whether relevant evidence 2 In classical logic, this is referred to as the contrapositive. In the abstract, the quoted language from takes the form of if not p, then not q. This irrefutably implies, among other things, if q, then p. In this context, it would be stated that if evidence is not relevant then it is not admissible always implies that if evidence is admissible then it is, by definition, relevant. 4

8 should be excluded under certain circumstances. The statute begins, Although relevant, evidence may be excluded if.... It is tautological that evidence is either excluded or admitted; it cannot be both, nor is there another alternative. There can be no analysis of whether to exclude the evidence because it is already legislatively deemed admissible. It is obvious that the legislature has made the policy choice that the evidence is not unfairly prejudicial nor within the parameters of any of the other exceptions. As every law student is taught, essentially all evidence any party seeks to introduce is prejudicial to their adversary, lest there be no reason to seek its admission. But as they are also taught, the appropriate two part question under is whether the danger of unfair prejudice occasioned by admitting the evidence substantially outweigh(s) its probative value. In non-medical malpractice actions, collateral source evidence has been deemed so prejudicial as to be deemed pernicious, and to require a new trial. Cf. Koffman v. Leichtfuss, 2001 WI 111, 53 54, 246 Wis. 2d 31, 630 N.W.2d 201. By enacting (7), the legislature heard from groups opposed to the law and would have considered the prejudicial effect of collateral source evidence. Inasmuch as (7) is a modification of the rules of evidence, it has been determined that the probative value of such evidence outweighs any potential danger of unfair prejudice. The evidence is admissible; the important question is how the evidence is to be handled. 5

9 II. COLLATERAL SOURCE EVIDENCE NEED NOT BE HANDLED IN ANY FUNDAMENTALLY DIFFERENT MANNER THAN ANY OTHER EVIDENCE. A reasonable analysis of how collateral source evidence is to be used begins with an analysis of how it might be used. One end of the potential spectrum would be to determine that (7) completely abrogated the substantive portions of the collateral source rule and demands that all recoveries in medical malpractice cases be reduced by the amount of collateral payments. This court has rejected, over dissent, such an interpretation. Lagerstrom, at 48. The opposite end of the spectrum would be to conclude that (7) did not modify the evidentiary aspect of the collateral source rule and that the evidence at issue can be kept from the jury. As outlined above, this Court has also rejected that interpretation of the statute. Id. Clearly, it is something in between these two parameters. The evidence comes into these cases and is intended to have some potential impact. There are certain basic principles which govern this analysis. First, collateral source evidence and its treatment under (7) speaks to the law of damages. Lagerstrom, at 28. Second, damages in medical malpractice actions are creatures of statute and areas of potential recovery are defined by statute. Wis. Stats., (5). Third, the ultimate goal of (7) is to reduce health care providers insurance premiums as a result of the reduction of malpractice recoveries. Lagerstrom, at 50. Fourth, any interpretation of (7) must give meaning to the text itself. Brunton v. Nuvell Credit Corp., 2010 WI 50 16, 6

10 325 Wis. 2d 135, 785 N.W.2d 302. Fifth, the concept of collateral benefits is wide ranging and can encompass a potentially limitless array of beneficial things and events. Lastly, and perhaps most importantly, the mere admission into evidence of plaintiff s collateral benefits in no way guarantees any reduction in the damages awarded by the trier of fact. Lagerstrom, at 50, n. 22, quoting Eastin v. Broomfield, 570 P.2d 744, 753 (Ariz. 1977). Taken together, these premises converge to make a workable and easily appreciated paradigm for the treatment for collateral source evidence. Recoverable damages in medical malpractice actions are defined by statute. Wisconsin Statutes, (5) lists five categories of damage: 1) pain suffering and noneconomic effects of disability; 2) loss of consortium, society and companionship or loss of love and affection; 3) loss of earning or earning capacity; 4) each element of medical expense; and 5) other economic injuries and damages. Wis. Stats., (5). The first two of these are generally thought of as noneconomic damages (even though they are measured in pecuniary terms), see Wis. Stats., (4)(a). The latter three are forms of economic damage. This distinction between economic and noneconomic damages is worth drawing because it highlights a more general proposition about how evidence is treated. In considering claims of noneconomic damage, it is routine for evidence to be received regarding salutary events in a claimant s life. The person claiming a loss of enjoyment of life secondary to an injury may be faced with testimony regarding an increase in the richness of their relationship with friends and family 7

11 occasioned by the incident. A widower claiming a loss of society and companionship of his wife will be faced with evidence of a new love interest. This type of evidence is, in the broadest sense, evidence of some collateral benefit coming to the aggrieved party. It is not evidence measured in pecuniary terms, but it is evidence intended to have an impact on the pecuniary amount of any award. Perhaps most importantly, it is evidence which may, or may not, result in any reduction in the damages awarded by the trier of fact. See Eastin, supra. It is within the specific facts of individual cases, the respective arguments of counsel and the proclivities of particular juries as to what, if any impact, such evidence will have. The law does not concern itself with what precise effect the evidence may have; it is enough to know that it may have an impact on jury deliberations and the jury can be trusted from there. The court s only necessary role is to admit into evidence that information which is admissible and to instruct the jury on the general principles which should guide their deliberations on these forms of damage. Section (7), broadens the scope of admissible evidence to include not just abstract non-pecuniary collateral benefits, but those transfers to injured parties that are measured in pecuniary terms. It is intended to allow offsetting evidence that bears directly on economic damage claims similar to that which has long been part and parcel of noneconomic damage claims. This is as the legislature intended. 8

12 In enacting (7), the legislature recognized the fundamental tension that underlies any collateral source rule analysis. The longstanding judicial policy of the collateral source rule is that it is better for an injured person to receive a windfall. Koffman, supra, at 29. The legislature examined that public policy in the context of medical negligence claims and made the reasoned decision to reverse that policy in this narrow category of cases. This statute seeks to reign in the enormous costs associated with malpractice claims for medical providers by potentially eliminating windfall compensation to plaintiffs. As the Supreme Court has noted, (T)aming the costs of medical malpractice and ensuring access to affordable health care are legitimate legislative objectives. Aicher v. Wis. Patients Compensation Fund, 2000 WI 98, 78, 237 Wis. 2d 99, 613 N.W.2d 849. What is clear from the language and the legislative history that the legislature was broadening the scope of what evidence the jury will hear to include not only abstract collateral benefits, but all evidence of collateral benefit, including pecuniary compensation. Lagerstrom at What the legislature did not do, was to try to state or narrowly confine the specific purpose for which the evidence was to be used. Lagerstrom at 32. What follows from the discussion above regarding more abstract forms of collateral benefits accruing to an injured party is that the legislature simply did not need to do so. Therein lays the beauty and simplicity of the statute. 9

13 Just as a jury may reasonably conclude, based upon evidence adduced at trial, that a widower s remarriage in no way lessens the loss of society he suffered by the death of his wife so, too, might they conclude that his receipt of life insurance proceeds offsets his claim for her expected future monetary contribution. Similarly, the same jury could well conclude, based on a different set of circumstances, that the widower s companionship claim is lessened by remarriage but that his economic claim is unaffected by the receipt of life insurance. Every case is different and our system relies on juries, in their collective wisdom, to make these determinations. With this in mind, and setting aside collateral source evidence which is tied to a subrogated interest 3, there is no reason why general collateral source evidence should be treated any differently than any other evidence admitted into trial. Our system trusts juries to sift and winnow the evidence presented to them and arrive at justice in each individual case. With very rare exception, specific pieces of evidence are not singled out for special treatment in the law or in the jury instructions. While receiving collateral source evidence may be a novel concept for courts which have not had to deal with it previously, that does not demonstrate any rational basis for treating it differently than any other piece of evidence. 3 Obviously, situations in which there are subrogated interests must be treated somewhat differently by virtue of the text of (7). As this Court has noted, situations in which subrogation exists are the only exceptions carved out of the statute. Lagerstrom, at 31. This Court analyzed how those cases should be treated and the result now manifests itself in a widely used jury instruction. See. Wis. Civ. J. I

14 There are two categories of damage claims in medical malpractice cases where one most likely would see collateral source evidence be proffered: other economic injuries and loss of earning/earning capacity. See Wis. Stats., (5)(c)&(e). There is no pattern jury instruction for other economic injuries and damages, and any instruction bearing on that question would have to be crafted on a case-by-case basis. The pattern jury instruction for loss of future earning capacity does not instruct the jury how to consider any of the specific evidence that might bear on that question in the absence of collateral source evidence, and need not be modified in any significant way to accommodate the receipt of collateral source evidence. See Wis. Civ. J. I Similarly, the pattern instruction for pecuniary loss resulting from the death of a spouse or domestic partner does contain specific facts to be considered (decedent s age, health, earning capacity, etc.), but with the caveat that such determinations need not be precise or exact. Wis. Civ. J.I It does not tell the jury what to do with that information. Id. Adding the receipt of unanticipated collateral benefits to the list factors to be considered would not be onerous or confusing. What these exercises demonstrate is that the processing of collateral source evidence need not be difficult. It is evidence, just like other evidence and the jury can be trusted to sort it out. The case before the Court is a perfect example of this notion. The potentially offsetting collateral source evidence applicable to plaintiffs economic claims was received by the jury in this case, just as evidence which would have supported the noneconomic claims was received. When 11

15 damages were no longer an issue, the jury was able to set aside all that it heard on the damages and address liability issues. The system worked at as it was intended and did so without any instruction on what the jury needed to do with one special class of evidence. CONCLUSION Based on all the foregoing, and in conjunction with the arguments presented in respondents brief, amici Wisconsin Medical Society, Inc. and Wisconsin Hospital Association, Inc. respectfully request that the court issue its mandate affirming the court of appeals and, in the event that it chooses to reach the substance of appellants collateral source arguments, that it issue its opinion setting forth guidance to lower courts in interpreting Wis. Stats., (7) as outlined above. Dated this 17 th day of February, /s/ Guy DuBeau Guy DuBeau, SB# Tyler K. Wilkinson, SB# Amicus Curiae Counsel for Wisconsin Medical Society, Inc. and Wisconsin Hospital Association, Inc. Axley Brynelson, LLP 2 East Mifflin Street, Suite 200 Madison, WI gdubeau@axley.com 12

16 FORM AND LENGTH CERTIFICATION I hereby certify that this brief conforms to the rules contained in (8)(b) and (c) for a brief and appendix produced with a proportional serif font (Times New Roman 13 pt for body text and 11 pt for quotes and footnotes). The length of this brief is 2,927 words. Dated this 17 th day February, /s/ Guy DuBeau Guy DuBeau Wisconsin State Bar No Axley Brynelson, LLP 2 East Mifflin Street, Suite 200 Madison, WI gdubeau@axley.com ELECTRONIC FILING CERTIFICATION I certify that an electronic copy of this brief has been submitted and that the text of the electronic copy of the brief is identical to the text of the paper copy of the brief filed with the Court. A copy of this certificate has been served with the paper copies of this brief filed with the court and served on all parties of record. Dated this 17 th day of February, 2012 /s/ Guy DuBeau Guy DuBeau Wisconsin State Bar No Axley Brynelson, LLP 2 East Mifflin Street, Suite 200 Madison, WI gdubeau@axley.com F:\EAFDATA\2527\65682\ DOC 13