Wisconsin Lawyer: Wisconsin Lawyer July 1998: Court of Appeals Digest:

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July 01, 1998

Wisconsin Lawyer July 1998: Court of Appeals Digest

Court of Appeals Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Contracts

Illegal Contracts - Attorney Fees

Greenlee v. Rainbow Auction/Realty Co. Inc., No. 97-1483 (filed 23 April 1998) (ordered published 27 May 1998)

Schuster, a real estate broker working for a realty company, entered into an illegal fee splitting arrangement with a nonbroker, Greenlee. The deal involved a truck stop on which a bank had foreclosed. Schuster's realty company had the exclusive right to list the property. Greenlee located a potential buyer but disclosed the buyer's identity only after Schuster agreed to the split fee. The bank sold the property to the buyer but refused to pay Greenlee.

Greenlee then sued the bank and the realty company. Although the bank tendered its defense to the realty company and Schuster, they refused to accept it. The bank filed claims against the realty company and Schuster for its attorney fees and costs in defending against Greenlee's action, regardless of its outcome. In prior litigation, the courts ruled that Greenlee was attempting to enforce an illegal contract (as a nonbroker he could not collect a commission). Based on this determination, the circuit court granted summary judgment to the bank, awarding it attorney fees and costs as against Schuster and the realty company.

The court of appeals, in an opinion written by Judge Roggensack, affirmed. The illegal fee splitting agreement violated a statute and constituted negligence per se. Thus Schuster violated the standard of care and was responsible for any damages that he caused - namely, costs and attorney fees. In response, Schuster asserted affirmative defenses of ratification and equitable relief; that is, the bank had ratified the illegal contract or had "dirty hands" itself. Ratification did not apply because the contract was void at its inception. Nor did the record support the allegation that the bank was aware of the consequences of Greenlee's lack of a real estate license.

Criminal Law

Theft from Person - Removing Purse from Handle of Occupied Wheelchair

State v. Hughes, No. 97-0638-CR (filed 7 April 1998) (ordered published 27 May 1998)

The victim in this case was leaving a grocery store in her wheelchair when her purse was removed from the wheelchair handle where it was hanging. For this theft the defendant was convicted of the crime of theft from the person. The issue on appeal was whether this offense encompasses removing property from the handle of a wheelchair when it is occupied by the victim.

Wis. Stat. sections 943.20(1)(a) and (3)(d)2 provide that "whoever ... intentionally takes and carries away ... moveable property ... from the person of another" is guilty of theft from person. In a decision authored by Judge Schudson, the court of appeals concluded that theft "from the person" encompasses taking property from the wheelchair of one sitting in the wheelchair at the time of the taking. Wheelchairs have become essential extensions of the "persons" of their occupants, and wheelchair handles and storage compartments are essential to wheelchair use.

In footnote the court acknowledged two important implications that logically flow from its holding: 1) the term "wheelchair," as it is used in this decision, encompasses functional equivalents, including canes, crutches, walkers, motorized carts, and other apparatuses serving the same purpose; and 2) "sitting in the wheelchair," as that phrase was used in the decision, encompasses the times and locations involved in getting into or out of, or taking hold of or releasing, a "wheelchair" or its functional equivalent.

Finally, in reaching the conclusion that it did about the defendant's liability for the crime of theft from the person, the court indicated in footnote that it did not foreclose the possibility that such conduct, depending on all the circumstances, could also constitute other crimes, including robbery and theft from a vulnerable adult.

Criminal Procedure

Arrest - Odor of Marijuana in Auto Occupied by Single Individual - Probable Cause to Arrest Lacking

State v. Secrist, No. 97-2476-CR (filed 1 April 1998) (ordered published 27 May 1998)

An officer was directing traffic at a local parade. The defendant, alone in his car, drove up to the officer to ask for directions. The officer detected the odor of marijuana coming from the vehicle, an odor he recognized from his training and experience. The officer told the defendant to pull over, ordered him from his car, and placed him under arrest for possession of marijuana. A search of the car turned up a marijuana cigarette and roach clip.

The critical issue on appeal was whether the odor of marijuana emanating from a vehicle is enough to establish probable cause to arrest the sole occupant of the vehicle. The circuit court had found that the odor was sufficient to establish probable cause.

In a decision authored by Judge Brown, the court of appeals reversed. It concluded that the odor of marijuana from a vehicle does not by itself give an officer reasonable grounds to conclude that the sole occupant of the vehicle is the person who smoked the marijuana. While the odor gave the officer reason to believe that a crime had been committed, he did not have reason to believe that the crime had just been committed or that the defendant had committed it. There was no indication as to when the marijuana had been smoked or by whom. The smell of marijuana lingers and thus it could have been smoked five minutes earlier or even several hours earlier. Thus, the court concluded that the officer had but mere suspicion that the defendant had been smoking marijuana, but suspicion is not sufficient for probable cause to arrest.

In reaching this decision, the court distinguished State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992), wherein a marijuana arrest was upheld where there was both the smell of marijuana emanating from the vehicle and visible smoke in the vehicle. The latter evidence was lacking in the present case.

Ineffective Assistance of Counsel - Requirement of Machner Hearing - Authentication of Voice Recordings - One-party Consent Recordings

State v. Curtis, No. 96-2884-CR (filed 8 April 1998) (ordered published 29 May 1998)

The defendant was an inmate at a state prison when the events in this case occurred. Officials at the prison used another inmate in the capacity of an informant. The informant wore a wire and recorded his conversations with the defendant while buying drugs from him. The tapes of the conversations were played for the jury at the defendant's trial and the defendant was found guilty on four counts of delivering drugs.

The defendant's first claim on appeal was that his trial counsel was ineffective in failing to cite case law in his motion to suppress the tapes and in failing to request an in camera review of the tapes prior to their admission as evidence. He acknowledged that the Wisconsin Supreme Court has held that a post-conviction hearing pursuant to State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), is a prerequisite to a claim of ineffective assistance of counsel. He argued, however, that a Machner hearing is not necessary in every case and that because trial counsel's alleged errors were so obvious and could not possibly have been the result of tactical decisions, no Machner hearing was required.

The court of appeals, in a decision authored by Judge Brown, disagreed with the defendant's position. The Machner court held that "it is a prerequisite to a claim of ineffective representation on appeal to preserve the testimony of trial counsel." The hearing is important not only to give counsel a chance to explain his or her actions but to allow the trial court, which is in the best position to judge counsel's performance, to rule on the motion. This dual purpose renders the hearing essential in every case where a claim of ineffective assistance of counsel is raised.

In footnote the court observed that its holding should not be construed to say that a defendant is automatically entitled to an evidentiary hearing no matter how cursory or meritless the ineffective assistance of counsel claim might be. A trial court may deny a post-conviction motion without a hearing if the motion fails to allege sufficient facts to raise a question of fact, presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief.

The court of appeals also rejected the defendant's claims that the tapes admitted into evidence at trial were not properly authenticated. At the trial the informant, who was a party to the conversations on the tapes, testified that the voices on the tapes were his and the defendant's. The court concluded that this type of voice identification is a valid avenue of authentication and that tapes are properly identified and authenticated when a party to the recorded conversation identifies the defendant's voice and testifies that the tapes accurately depict the conversations.

Finally, the defendant attacked the use of the tapes on the theory that one-party consent tapes are legal only for investigative purposes and are not admissible as evidence. While this used to be the law in Wisconsin, the law had been changed by the time the 1993 recordings were entered into evidence at the defendant's trial. See 1989 Wis. Act 121 (allowing one-party consent tapes into evidence in felony drug prosecutions.) [Note: Subsequent amendments have further broadened this authorization to all felonies. See 1993 Wis. Act 98; 1995 Wis. Act 30.]

Post-conviction Practice - Standing of Defendant on Straight Probation to Bring Section 974.06 Motion

State v. Mentzel, No. 97-1814 (filed 22 April 1998) (ordered published 27 May 1998)

The defendant was convicted of allowing the continued use of certain premises as a place of prostitution contrary to Wis. Stat. section 944.34. At the sentencing hearing, the trial court withheld sentence and placed the defendant on probation for three years. The defendant appealed and the court of appeals affirmed his conviction.

Thereafter the defendant sought relief pursuant to Wis. Stat. section 974.06, which permits a person "in custody under sentence of a court" to challenge the validity of his or her conviction. The circuit court dismissed the motion, concluding that the defendant was not "under sentence of a court" because he had been placed on straight probation and therefore could not avail himself of relief under section 974.06.

The court of appeals, in a decision authored by Judge Nettesheim, reversed. It concluded that, subject to any other bars, all defendants on probation have standing to pursue post-conviction relief under section 974.06.

Terry Stops - Miranda Rights

State v. Gruen, No. 96-2588-CR (filed 14 April 1998) (ordered published 27 May 1998)

The court of appeals, in an opinion written by Judge Curley, affirmed the defendant's conviction for OWI. The primary issue involved the admissibility of the defendant's statements to police officers. The defendant was originally "stopped" by a City of Milwaukee police officer in a Milwaukee suburb - his car was stuck in a snow bank on a cold, windy night - who then summoned suburban police. The defendant argued that when suburban officers arrived he was in "custody" for Miranda purposes and should have been read his Miranda rights before questioning. Applying a totality of the circumstances test, the court held that the defendant was not in Miranda-type custody when interrogated; for example, he was questioned at the scene, no firearms were pointed at him, and police never ordered him to the ground.

This case's significance rests on its discussion of the interaction of Terry stops and the Miranda rule. Based on prior case law, the court held that "custody" for Miranda purposes might occur even during a valid Terry stop. Put another way, the court declined to equate Miranda-type custody with a Fourth Amendment "arrest." Thus, an investigative "stop" based on reasonable suspicion can, under certain circumstances, be sufficiently intrusive to warrant the giving of Miranda warnings.

Family Law

Child Abuse - Transfer of Custody During Child Abuse Injunction Proceedings

Scott M.H. v. Kathleen M.H., Nos. 97-0814 and 97-0815 (filed 15 April 1998) (ordered published 27 May 1998)

Kathleen and Scott were divorced in 1993. The parties were awarded joint legal custody of their only child, and the mother was awarded primary physical custody. In 1995 Scott filed a motion in the divorce action seeking sole custody and placement of the child. This matter was not scheduled for hearing until more than a year later. However, prior to the scheduled hearing, Scott filed a petition for a temporary child abuse restraining order and injunction against Kathleen pursuant to Wis. Stat. section 813.122 in which he alleged that Kathleen had engaged in physical and sexual abuse of their child.

The circuit court found that there were reasonable grounds to believe that Kathleen had engaged in abuse of the child. Despite this finding, the court dismissed the injunction action, instead taking jurisdiction over the matter in the parties' divorce action. Wearing its "divorce hat," the court changed the child's custody and placement to his father pursuant to Wis. Stat. section 767.325.

The critical issue on appeal was whether the trial court acted with statutory authority when it modified child custody and placement. Rejecting the mother's argument that the injunction statute (Wis. Stat. section 813.122) does not permit such action, the court of appeals affirmed the circuit court.

In a decision authored by Judge Nettesheim, the appellate court concluded that section 813.122 implicitly envisions a change of placement and custody if the trial court issues a child abuse injunction against a parent who has custody or placement of a child under a divorce judgment or order.

As noted above, the circuit court dismissed the injunction action and changed custody and placement by taking jurisdiction over the parties' divorce action. The appellate court noted that even if the trial court procedurally erred by invoking its divorce jurisdiction, that error was harmless. This is because the injunction statute envisions a change of custody or placement when the respondent is the custodial parent. In this matter, the trial court factually determined that the grounds for an injunction had been established. Thus, the court could have entered the same order changing the child's custody and placement in the injunction proceeding. It turned to the divorce action only because it concluded that an injunction was too harsh and restrictive a sanction against the mother.

Insurance

Subrogation - Indemnification - Time Limits

Jones v. General Casualty Co., No. 97-3228 (filed 28 April 1998) (ordered published 27 May 1998)

American Family issued underinsured motorist coverage (UIM) to Marjorie Jones, who was injured by a tortfeasor. American Family eventually sued the tortfeasor's employer for indemnification on the UIM coverage paid to Jones. The circuit court dismissed the complaint as untimely. On appeal American Family argued that the judge erroneously applied the statute of limitations governing subrogation to its indemnification claim.

The court of appeals, in an opinion written by Judge Myse, affirmed. Although no Wisconsin cases addressed this issue, the court sided with "the clear majority of cases" holding that "equitable indemnity does not permit an insurer to collect from a wrongdoer. Rather, the insurer's right to indemnity from a wrongdoer is fixed solely by its subrogation rights." The general principles of indemnification discussed in those cases were recognized in Wisconsin. The court held "that Wisconsin law prevents an underinsurer from collecting from a wrongdoer on an indemnification claim."

Direct Actions - Foreign Insurers

Kenison v. Wellington Ins. Co., No. 97-1758 (filed 21 April 1998) (ordered published 27 May 1998)

The plaintiff was injured in a car accident that occurred in Wisconsin. The driver of the other car was employed by a Canadian company that was insured by Wellington Insurance Co., also a Canadian company that did no business in Wisconsin or any part of the United States. The plaintiffs filed a summons and complaint against Wellington (a direct action) but failed to effect timely service on the tortfeasor or her employer. The trial judge dismissed the direct action against Wellington because that insurer did not deliver or issue for delivery a policy of insurance in Wisconsin.

The court of appeals, in an opinion written by Judge Cane, affirmed. The "unambiguous language of sec. 631.01, Stats., limits the application of sec. 632.24, Stats., to insurance policies delivered or issued for delivery in this state." The undisputed record showed that Wellington did not fall within the direct action statute. It was up to the Legislature to "cure any unfairness" in such procedures.

Jury Trials

Jury Selection - Striking Minority Jurors - Timeliness of Batson Objection

State v. Jones , No. 97-1002-CR (filed 14 April 1998) (ordered published 27 May 1998)

The defendant, an African-American, was charged with robbery. A jury trial was scheduled and the parties and the court conducted voir dire of prospective jurors. After completing the questioning of the panel, the state peremptorily struck a Hispanic juror and two African-American jurors. After each side had exercised all of its peremptory strikes, the trial court asked whether the 14 remaining jurors were the jurors the parties had selected for the case. The defendant, through his counsel, answered affirmatively. The jury was sworn and the remaining members of the venire were excused.

The defendant's attorney then objected to the peremptory challenges made by the state of the three minority jurors, claiming that they were racially motivated in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and, therefore, a new jury panel should be selected. The trial court disagreed and the case proceeded to trial. The defendant was convicted.

The critical issue on appeal was whether the defendant had timely objected to the state's striking of the minority jurors. In a decision authored by Judge Wedemeyer, the court of appeals concluded that the defendant'sBatson objection, made after the jury was sworn, came too late. It held that a defendant must make any Batson objection prior to the time the jury is sworn. If the objection is not made until after that time, the issue is waived.

In footnote the court observed that even if the defendant had made a timely objection, it would have been difficult, if not impossible, for the appellate court to review the merits of his claim because he failed to ensure that voir dire was recorded. The record documenting the questions and answers posed during jury selection is essential to any meaningful review of the Batsonissue.

Municipal Law

Fire and Police Commissions - Appeals of Disciplinary Actions

Younglove v. City of Oak Creek Fire and Police Commission, No. 97-1522-FT (filed 31 March 1998) (ordered published 29 April 1998)

Following disciplinary proceedings the Oak Creek Police and Fire Commission discharged Younglove from his job as chief of police in that community. He appealed his discharge to the circuit court pursuant to Wis. Stat. section 62.13(5)(i). In this statutory appeal, the circuit court affirmed the police and fire commission. [Note: This was not a review of the commission's decision by writ of certiorari.]

Younglove appealed the circuit court's affirmance to the court of appeals. The critical issue then became whether the court of appeals had jurisdiction to consider Younglove's appeal. The statute cited above provides that, if the order of the police and fire commission is sustained by the circuit court, "it shall be final and conclusive." Relying on this language, the court of appeals, in a decision authored by Judge Fine, concluded that it had no jurisdiction over Younglove's appeal. The Legislature has explicitly deprived appellate courts of jurisdiction to review orders issued by the circuit court when the latter considers appeals from police and fire commission orders under section 62.13(5)(i) and its predecessors. The Legislature has made the circuit court's decision on this kind of statutory appeal final - irrespective of whether an appellate court believes that decision to be right or wrong.

The court of appeals' decision also addressed the standard of review to be applied by the circuit court in a statutory appeal under section 62.13(5)(i). The statute provides that "the question to be determined by the [circuit] court shall be: upon the evidence [before the Board of Police and Fire Commissioners] is there just cause, as described under para. (em), to sustain the charges against the accused?" This requires the circuit court to ensure that the board's decision is supported by the evidence that the board found credible. The circuit court is not empowered to take evidence. Rather, if additional evidence or other material is needed, the circuit court is directed by statute to remand to the board for that purpose. The statute requires the circuit court to give deference to the board's findings and credibility determinations in deciding whether upon the evidence before the board there was just cause under the criteria specified in the statute to sustain the charges against the officer. The statute does not call for the circuit court to ignore credibility determinations made by the board which heard and saw the witnesses live, in favor of a de novo review of a transcript of the board's proceedings.

Judge Wedemeyer filed a dissenting opinion.

Open Meetings Law

Personnel Decisions - Dismissals - Evidentiary Hearings

State of Wisconsin ex rel. Epping v. City of Neillsville Common Council, No. 97-0403 (filed 2 April 1998) (ordered published 27 May 1998)

Epping attacked his dismissal as the city's director of public works. He claimed that a violation of the open meetings law occurred when the personnel committee and the common council met in a closed session. When it reconvened in an open session, the common council approved a motion terminating Epping who was then given a letter of termination. The circuit court found that no open meetings violation occurred.

The court of appeals affirmed in a decision written by Judge Dykman. Under Wis. Stat. section 19.85(1)(b) a public entity can hold a closed session to consider someone's dismissal only if the employee was given actual notice of any evidentiary hearing and of any meeting at which final action might be taken. "Thus, if no evidentiary hearing or final action took place during the closed sessions, Epping was not entitled to actual notice of the meetings." Although the personnel committee and the common council "discussed" Epping's job performance and status during the closed session, this did not convert the meeting into an "evidentiary hearing" because no testimony was taken or evidence admitted. Nor did the record reflect that "final action" was taken during the closed session.

Open Records

Personnel Files - Requesters - Notice to "Targets" - Venue

Klein v. Wisconsin Resource Center , No. 97-0679 (filed 1 April 1998) (ordered published 27 May 1998)

Two individuals committed under Chapter 980 (the Sexual Predator Act) to the Wisconsin Resource Center (WRC) filed a request for the personnel file of Marcia Klein, a WRC employee. The trial court denied the request.

The court of appeals, in an opinion written by Judge Snyder, affirmed. First, the two men were proper "requesters" as defined in Wis. Stat. section 19.32. Despite their involuntary commitment to WRC for treatment, they were not "incarcerated persons" and therefore ineligible to make such requests under the statute. Second, Klein's challenge to the release of her personnel file was proper. The reasoning of prior case law "permits a state employee who is the 'target' of a request for personnel records to challenge a record custodian's decision to release such information." The court also spelled out the procedures that attend when requests like these are made: The employer must balance the public's interest in open records against the competing factors set forth in the statute; in the event that disclosure is ordered, "the individual whose privacy interests are affected must be notified and given an opportunity to appeal the decision." Based on the record in this case, the court of appeals agreed that the denial was appropriate.

Finally, venue was proper in Winnebago County. Although the WRC inmates could have brought a mandamus action in Dane County, Klein - the "target" - was permitted to seek circuit court review in Winnebago County. In short, such actions are not limited to Dane County.

Taxation

Sales Tax - Tax on Sale of Flexible Time-shares

Telemark Development, Inc. v. Department of Revenue , No. 97-3133 (filed 30 April 1998) (ordered published 27 May 1998)

This case involved a time-share condominium development that is part of a large resort complex in northern Wisconsin. Telemark Development Inc. sells one-week time share units in the condominiums to purchasers via land contracts and deeds conveying a fee simple interest in the units.

Two types of time-share arrangements are available at the resort. Under the Telemark Interval Owners Association's rules, the year is divided into two periods: "guaranteed use periods," comprising weeks 7, 8, 26, 27, and 52, and "flexible use periods," consisting of all other weeks of the year. Those who purchase "guaranteed" weeks are assured occupancy in a specific condominium during the week or weeks specified in their deeds or contracts. Purchasers of flexible time-shares, however, have no guaranteed occupancy periods and no specified condominium units. They must reserve a unit in advance on a "first come - first serve" basis and, if they fail to reserve a unit in a timely manner, they may lose use of the project for that year.

Telemark does not hold a sales tax seller's permit and did not collect sales taxes on any of its sales of the flexible time-shares. The Department of Revenue assessed delinquent sales taxes against Telemark on its sales of the flexible time-shares and the Tax Appeals Commission confirmed the assessment, concluding that the sale of flexible time-shares is taxable under Wis. Stat. section 77.52(2)(a)1. The circuit court affirmed, as did the court of appeals.

Section 77.52(2)(a)1 taxes the furnishing of rooms or lodging to transients that are available to the public, including those sold as time-shares, "if the use of the ... lodging is not fixed at the time of sale as to the starting day or the lodging unit." In a decision authored by Chief Judge Eich, the court concluded that the Tax Appeals Commission's decision in this case was entitled to due-weight deference, and it affirmed that decision to impose the sales tax on the sale of the flexible time-shares as a reasonable interpretation and application of the law.

Telemark also raised two constitutional claims. It argued that section 77.52(2)(a)1, as applied to its sales of flexible time-shares, violates the "uniformity clause" of Wisconsin Constitution, Article VIII, section 1, which states that "the rule of taxation shall be uniform." This argument was rejected by the court of appeals because the uniformity clause is limited to property taxes as opposed to transactional taxes such as those imposed on income or sales. The tax at issue in this case was imposed on the sale of time-shares - not on the property. The court also rejected Telemark's equal protection challenge to the statute, concluding that Telemark had not established beyond a reasonable doubt that the Legislature's decision to tax the sale of flexible time-shares, while not taxing the sale of guaranteed time-shares, results in the type of invidious discrimination the equal protection clause is designed to protect against.

Torts

Medical Treatment - Use of FDA "Approved" Drugs/Devices for "Unapproved" Purposes - Hospital Liability

Staudt v. Froedtert Memorial Lutheran Hospital , Nos. 97-0192 and 97-0194 (filed 17 March 1998) (ordered published 29 April 1998)

This litigation arose out of the use of surgical screws by the plaintiffs' respective physicians to treat the plaintiffs' back problems. Neither of the plaintiffs was enrolled in a clinical investigation of the screws' efficacy or safety. They claim that they were injured as a result of the operations, and brought these actions against the hospitals where the surgeries were performed - not against their physicians or the manufacturer of the screws.

The plaintiffs' claims were predicated on what they contended was a violation of the hospitals' duties to them: to tell them that the Food and Drug Administration (FDA) had not approved the screws for the specific procedures for which they were used; to warn them of the risks inherent in the use of the screws; and to ensure that they were enrolled in a clinical investigative trial before the screws would be used in the surgeries. They conceded that the legal viability of these claims depended upon their contention that use of the screws in their surgeries violated the federal Food, Drug and Cosmetic Act, as amended by the Medical Device Amendments of 1976.

On summary judgment the circuit court dismissed the claims, holding that the hospitals were not liable to the plaintiffs because physicians have the right, within the exercise of their medical judgment and discretion, to use a medical device for purposes that have not been approved by the FDA as long as the FDA has approved use of the medical device for some purpose. In a decision authored by Judge Fine, the court of appeals agreed. Said the court, once a drug or device has been approved for any purpose, physicians may use that drug or device for purposes that have not been approved.

Although hospitals must give certain information to those of their patients participating in clinical investigations of "off-label" uses of medical devices, the hospital need not give this information to patients who are not part of such an investigation, even though their physicians are treating them with the device in an identical "unapproved" way. Moreover, the duty to get informed consent from a patient rests with the physician and not the hospital.

The appellate court recognized that the overriding issue in this case was whether medical decisions on how to treat patients will be made by those patients' physicians who are, of course, subject to liability if they commit malpractice, or whether additional layers of review should be interposed between patient and physician. The plaintiffs were able to cite no statute, regulation, or court decision that prevents a physician in the course of his or her medical practice from using an approved drug or medical device for an "unapproved" purpose. Until Congress changes the law to prohibit the "unapproved" use of drugs or medical devices that are approved for some purposes, or until the Legislature of this state - if consistent with the supremacy of federal law - alters the current calculus with respect to the use of drugs and medical devices, responsibility for the plaintiffs' alleged injuries as a result of their spinal operations does not lie with the hospitals in which the surgeries were performed.

Chiropractic Malpractice - Medical Problems

Goldstein v. Janusz Chiropractic Clinics S.C., No. 97-0326 (filed 21 April 1998) (ordered published 27 May 1998)

The plaintiffs brought this wrongful death action against the chiropractors who had treated a patient who later died of lung cancer. They alleged that under Kerkman v. Hintz, 418 N.W.2d 795 (1988), the chiropractor had a duty to recognize a lung mass as an "abnormality" and inform the patient that it was not treatable through chiropractic means. The circuit court granted summary judgment to the defendants.

The court of appeals, in an opinion written by Judge Curley, affirmed and explained Kerkman's ramifications. First, under Kerkman, chiropractors are not obligated to distinguish between a "medical problem" and a "chiropractic problem"; rather, they have a duty to simply determine whether the patient can be treated by chiropractic means. Second, chiropractors are not under an obligation to refer a patient to a medical doctor for treatment; rather, the chiropractor need only inform the patient that the ailment is not treatable through chiropractic means. In this case the plaintiffs claimed that the defendant chiropractors should have recognized that a lung mass near the spine was an "abnormality." The court of appeals rejected this argument, however, because as a matter of law it implied that the chiropractors should have recognized a "medical problem," which runs counter to Kerkman. In short, the court of appeals interprets Kerkman as holding that "chiropractors do not have a duty to 'recognize medical problems.'" Moreover, "it is beyond the scope of chiropractic practice to treat lung conditions, and chiropractors are certainly not licensed to diagnose or treat lung cancer."

Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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