Zero dollar jury verdict did not bar plaintiffs’ recovery of costs, appeals court concludes

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 24, 2011 – A healthcare provider that admitted some negligence in the death of a patient – and accepted responsibility for funeral expenses – could not escape paying the plaintiff’s costs although a jury awarded zero dollars in damages for pain and suffering.

William Radley Sr. suffered a heart attack and was hospitalized for several days before being transferred to the Wisconsin Veterans Home. The discharging hospital physician prescribed anticoagulants and recommended a daily test to monitor the effects of the drugs.

At the Wisconsin Veterans Home, a ThedaCare, Inc. employed physician determined it wasn’t necessary to perform the daily anticoagulant monitoring test, and the first test was performed two weeks after Radley was transferred to the Veterans Home.

Two days later, Radley died from excessive blood loss. Radley’s estate filed a medical malpractice and wrongful death action against ThedaCare, alleging negligence in failing to properly monitor the anticoagulation medication.

ThedaCare admitted negligence with respect to its monitoring policies, and accepted responsibility for about $10,000 in funeral expenses.

But ThedaCare disputed the estate’s claim that Radley suffered pre-death pain and suffering based on ThedaCare’s negligence, arguing that other factors were the cause. On this issue, a jury sided with ThedaCare and awarded nothing in monetary damages.

After trial, ThedaCare objected to the estate’s request for costs under Wis. Stat. section 814.01(1), which allows a plaintiff to obtain costs upon a recovery. The statute applies where the plaintiff prevails in a litigated trial court proceeding. Finkenbinder v. State Farm Mutual Auto Ins. Co., 215 Wis. 2d 145, 572 N.W.2d 501 (Ct. App. 1997).

ThedaCare argued the estate was not a “prevailing party” because it did not obtain a recovery as a result of a disputed issue at trial. That is, ThedaCare said the court could not award costs based on its stipulation to funeral expenses because that was akin to a settlement.

But in Estate of William Radley Sr. v. ThedaCare Inc., 2009AP653 (Oct. 20, 2011), the District IV Wisconsin Court of Appeals disagreed, concluding the estate was a prevailing party and obtained a recovery within the meaning of section 814.01(1).

“Nothing in Finkenbinder suggests that we meant that costs under § 814.01(1) are available to a plaintiff only if the issue on which the plaintiff prevails in a trial court proceeding is resolved by a trial,” wrote Judge Paul Higginbotham.

The appeals court explained that the estate made a “recovery” when the circuit court entered final judgment for the funeral expenses, regardless of the jury verdict on pain and suffering.

The court also rejected ThedaCare’s argument that its stipulations were akin to a settlement, and costs are not recoverable to claims resolved by stipulation or settlement under Aul v. Golden Rule Insurance Co., 2007 WI App 165, 304 Wis. 2d 227, 737 N.W.2d 24.

“Nothing in Aul suggests that settlements in general do not result in a judicial recovery,” Judge Higginbotham explained. “What is significant in Aul for our purposes here is that there, the settlement did not result in a recovery in a judgment.”

Section 814.01(1) does not prevent a plaintiff from obtaining costs “when the recovery is a result of a stipulation and judgment,” the court concluded.