2009 WI 74
Supreme Court of
Gregory Phelps, Marlene L. Phelps, Estate of Adam Phelps, Deceased, by his Special Administrator, Gregory G. Phelps, Caroline Phelps and Kyle Phelps, minors, by their Guardian ad Litem, William M. Cannon,
Physicians Insurance Co. of Wisconsin, Inc., a
REVIEW OF A DECISION OF THE COURT OF APPEALS
2008 WI App 6
Reported at: 307
(Ct. App. 2008-Published)
July 10, 2009
Submitted on Briefs:
March 5, 2009
Source of Appeal:
John A. Franke
BRADLEY, J., dissents (opinion filed).
ABRAHAMSON, C.J., joins the dissent.
defendants-appellants-cross-respondents-petitioners there were briefs by Michael B. Van Sicklen, Katherine C. Smith,
and Foley & Lardner LLP,
For the plaintiffs-respondents-cross-appellants there
were briefs by William M. Cannon, Sarah
F. Kaas, Edward E. Robinson, and
An amicus curiae brief was filed by Martha H. Heidt and Bye,
Goff, Rhode & Skow, Ltd.,
An amicus curiae brief was filed by Timothy J. Muldowney, Robert J. Dreps, Jennifer L. Peterson, and Godfrey & Kahn SC, Madison; Ruth Heitz and Wisconsin Medical Society, Madison; and Leonard Nelson and AMA Litigation Center, Chicago, on behalf of the Wisconsin Medical Society and the American Medical Association.
2009 WI 74
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Gregory Phelps; Marlene L. Phelps; Estate of Adam Phelps, Deceased, by his Special Administrator, Gregory G. Phelps; Caroline Phelps and Kyle Phelps, minors, by their Guardian ad Litem, William M. Cannon,
Physicians Insurance Co. of Wisconsin, Inc., a
JUL 10, 2009
David R. Schanker
Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and cause remanded to the circuit court.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review a
published decision of the court of appeals,
which reversed in part and affirmed in part a decision of the circuit court. There are two questions presented for our
review: (1) whether Dr. Matthew
Lindemann (Lindemann) was a borrowed employee of St. Joseph's Hospital of
Milwaukee (St. Joseph's), and was therefore an employee of a health care
provider subject to Wis. Stat. ch.
A. Factual Summary
¶2 This is a long, drawn-out litigation that has been wandering
¶3 Marlene Phelps (Marlene) discovered that she was pregnant with
twins in June 1998. Due to medical
complications, she was placed on strict home bed rest. Marlene's pregnancy then progressed without
incident until October 18, 1998, when another medical complication
occurred. She was admitted to
¶4 In the early morning of November 24, 1998, Marlene was awakened by
constant suprapubic pain. The on-call
resident, Lindemann, was contacted.
Lindemann was an unlicensed first-year resident and an employee of the
Medical College of Wisconsin Affiliated Hospitals, Inc. (Affiliated Hospitals
entity). His primary duty at this time
was to assess and report findings and differential diagnoses on
¶5 Lindemann ordered lactated Ringer's solution to be administered to Marlene at 2:40 a.m., for suspected contractions. It did not alleviate Marlene's pain. At 3:00 a.m., Lindemann made a differential diagnosis of her pain that included bladder infection, labor and placental abruption. He ordered a urinalysis in regard to a potential bladder infection. The results of that test were negative.
¶6 At 4:15 a.m., Marlene requested that the attending nurse call Lindemann again due to continued pain. Fetal heart monitoring showed that the twins' heart rates were within normal ranges. Lindemann informed Marlene that he would take an ultrasound so he could consult a senior resident about her condition.
¶7 After the ultrasound, potent narcotics were administered to Marlene at 4:50 a.m. and 5:20 a.m., on Lindemann's orders, but he was neither seen nor heard from between 4:15 a.m. and 6:00 a.m. He never satisfactorily explained his whereabouts during this time. There is no evidence that he ever contacted a senior resident to discuss the ultrasound and Marlene's case.
¶8 Marlene was still in pain when Lindemann examined her again at 6:00 a.m. At 6:45 a.m., Marlene's husband, Gregory, arrived at the hospital. Marlene informed Gregory that she needed to defecate and asked for assistance to get to the commode. At 7:00 a.m., while sitting on the commode, she reached down and felt toes extending from her.
¶9 Gregory rushed to the nurses' desk where he found another doctor, who delivered Adam Phelps at 7:20 a.m. Adam was immediately rushed to the neonatal intensive care unit where hospital staff attempted to resuscitate him. The efforts were unsuccessful, and he was pronounced dead at 7:36 a.m. Adam's death was caused by asphyxia due to umbilical cord entrapment and placental abruption, which impaired his oxygen supply.
¶10 While hospital staff were attempting to resuscitate Adam, Marlene was taken to the operating room. The second twin, Kyle, was delivered at 7:43 a.m. Afterward, the treating physicians questioned Lindemann about his decisions, his whereabouts and his diagnosis.
B. Procedural History
1. Prior appeal
¶11 Gregory and Marlene, along with their two surviving children, Kyle and Caroline (collectively, the Phelpses), sued Lindemann and his insurer, Physician's Insurance Company of Wisconsin (Physicians), St. Joseph's, St. Joseph's insurer, and the Affiliated Hospitals entity, in Milwaukee County Circuit Court, alleging negligence, loss of society and companionship, wrongful death and negligent infliction of emotional distress.
¶12 The Honorable Michael P. Sullivan presided over the initial trial
proceedings. Prior to trial, Judge
Sullivan dismissed the Affiliated Hospitals entity from the case, concluding
that even though Lindemann was an employee of the Affiliated Hospitals entity,
he was not the Affiliated Hospitals entity's "servant" because the
Affiliated Hospitals entity did not control or supervise his medical decisions
¶13 The day before trial, Judge Sullivan struck Lindemann's jury demand
because Lindemann's lawyer had been late in paying the jury fee. A bench trial was then held. Judge Sullivan found Lindemann 80% causally
and Physicians appealed. The court of
appeals held that Judge Sullivan had erred when he struck Lindemann's jury demand,
and remanded for a new trial. Phelps I,
and Physicians had argued to the circuit court and the court of appeals that
Wis. Stat. ch. 655 barred the Phelpses' claims for negligent infliction of
emotional distress to a bystander.
granted the parties' cross-petitions for review. Phelps II, 282
reversed the court of appeals' decision to remand the case to the circuit court
for further findings of fact regarding whether some evidence should have been
excluded under the peer review privilege.
we affirmed that aspect of the court of appeals' decision concluding that
Lindemann was not a health care provider under Wis. Stat. § 893.55(4), and
as a result, we concluded that the noneconomic damages cap set forth in that
statute did not apply.
2. Present appeal
¶19 On remand, the circuit court applied the test we set forth in Seaman Body Corp. v. Industrial Commission of Wisconsin, 204 Wis. 157, 235 N.W. 433 (1931), to determine whether Lindemann was a borrowed employee. The circuit court made findings of fact, based on written submissions relating to whether: (1) Lindemann consented to work for St. Joseph's; (2) Lindemann entered upon the work of St. Joseph's pursuant to either an express or an implied agreement to do so; (3) St. Joseph's had primary control over the details of Lindemann's work at St. Joseph's; and (4) Lindemann's work was performed primarily for the benefit of St. Joseph's. Based on the findings it made from these evidentiary submissions, the circuit court concluded that Lindemann was a borrowed employee, and was therefore an employee of a health care provider. These conclusions subjected the Phelpses' claims to the noneconomic damages caps set forth in Wis. Stat. § 893.55(4).
¶20 The Phelpses moved for reconsideration. They argued that Lindemann could not be a
borrowed employee because (1) the circuit court's factual finding that
Lindemann consented to work for
¶21 The circuit court denied the motion, reiterating its finding that
even though Lindemann did not expressly consent to work for
¶22 Between the filing of the Phelpses' initial complaint and before the circuit court decisions on the borrowed employee question, we decided several cases potentially affecting the outcome of this case. See Ferdon v. Wis. Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440; Pierce v. Physicians Ins. Co. of Wis., Inc., 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558; Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866.
¶23 In civil cases, we generally presume that our rulings apply to
pending litigation. Wenke v. Gehl Co.,
2004 WI 103, ¶69, 274
¶24 In Maurin, we held that Wis. Stat. § 893.55(4)(f) incorporates a single cap on all
damages for wrongful death, including those for conscious pain and
suffering. Maurin, 274
¶25 The remaining dispute was whether the rest of the $490,000 in damages also was subject to the cap on wrongful death incorporated into Wis. Stat. § 893.55(4)(f). The circuit court concluded that Gregory's $200,000 award for damages based on the negligent infliction of emotional distress to a bystander was barred by § 893.55(4)(f) because Gregory's damages were inextricably linked to Adam's death. As a result, the circuit court vacated that portion of the $490,000 award.
¶26 Though the same result appeared mandated for Marlene's bystander
claim, the circuit court concluded that our decision in Pierce created
different footings for her claim. In Pierce,
we concluded that a mother in childbirth, such as Marlene, experiences
emotional distress damages in a manner different from that of a third person
who merely witnesses the childbirth, such as Gregory. Pierce, 278
¶27 About a month after the circuit court issued its decision on
damages, we issued our decision in Bartholomew v. Wisconsin Patients
Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216. In Bartholomew, we overruled Maurin. A majority of the court, via different
rationales, concluded that the legislature had intended to adopt two damages
caps, "a medical malpractice cap for noneconomic damages for predeath
claims and a wrongful death cap for noneconomic damages for postdeath loss of
society and companionship. Claimants
[could] thus recover for the different damages up to the separate limits of the
applicable respective cap." Bartholomew,
¶28 In light of Bartholomew, the Phelpses filed a motion for reconsideration, requesting that Gregory's $200,000 award for damages due to the negligent infliction of emotional distress to a bystander be reinstated. The circuit court granted the motion. Though the court acknowledged some difficulty in determining whether a bystander claim "is a predeath or postdeath claim," the court concluded that such a claim ought to be considered a predeath claim, because "[t]he history of . . . wrongful death claims . . . is limited to something else." As a result, the circuit court held that the noneconomic damages cap in Wis. Stat. § 893.55(4)(f) did not apply to Gregory's claim, and it reinstated the $200,000 award.
¶29 Following the circuit court's decision on the Phelpses' second
motion for reconsideration, Lindemann paid that portion of the damage award due
to Marlene and the two children. He then
appealed the circuit court's order reinstating Gregory's $200,000 award for
damages due to the negligent infliction of emotional distress to a bystander. The Phelpses cross-appealed, challenging the
circuit court's findings and conclusion that Lindemann was a borrowed employee
¶30 The court of appeals reversed the circuit court's ruling that
Lindemann was a borrowed employee. Phelps
¶31 In applying the borrowed employee test from Seaman, the court of appeals found that (1) Lindemann never consented to be St. Joseph's employee, id., ¶25; (2) Lindemann was not performing the work of St. Joseph's, id., ¶¶26-27; (3) St. Joseph's did not control the details of Lindemann's work, id., ¶28; and (4) Lindemann's work primarily benefited the Affiliated Hospitals entity, not St. Joseph's, id., ¶29.
¶32 Because the court of appeals concluded that all of the Seaman factors weighed against Lindemann being a borrowed employee, it concluded that he was not. As a result, Lindemann was not an employee of a health care provider under Wis. Stat. § 893.55(4), and none of the caps on noneconomic damages set forth in that section applied to Gregory's claim. Accordingly, the court of appeals affirmed that aspect of the circuit court's decision reinstating Gregory's $200,000 award for bystander negligent infliction of emotional distress.
¶33 We granted the defendants' petition for review. In addition to the questions posed by the parties regarding Lindemann's status as a borrowed employee and the effect of that classification on Gregory's damages award under Wis. Stat. § 893.55(4), we requested supplemental briefing from the parties to address two additional questions:
(1) Does Wis. Stat. ch. 655 bar bystander negligent infliction of emotional distress claims made against health care providers?
(2) Did the defendant waive (forfeit) the right to have this issue decided in this court?
We now reverse the decision of the court of appeals.
A. Standard of Review
¶34 As the procedural history of this case indicates, determining
whether Lindemann was a borrowed employee required the circuit court to make
factual findings. See Phelps
II, 282 Wis. 2d 69, ¶4
n.4 ("[B]ecause we cannot find facts, we remand to the circuit court the
issue of whether Dr. Lindemann was a 'borrowed employee' of St. Joseph's
Hospital.") We uphold a circuit court's
findings of fact unless they are clearly erroneous. Steinbach v. Green Lake Sanitary Dist.,
2006 WI 63, ¶10, 291
¶35 Once the facts relevant to the borrowed employee determination are
found by the circuit court, application of the Seaman test to those
facts is a question of law. Phelps II,
¶36 In addition to deciding the borrowed employee question, we interpret and apply Wis. Stat. ch. 655 and Wis. Stat. § 893.55(4) to the facts of this case. The interpretation and application of statutes are questions of law that we also review independently. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581 (citing Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110).
B. Borrowed Employee
¶37 In order to determine whether Lindemann was the borrowed employee
¶38 Here, the circuit court was not concerned with the sufficiency of
the evidence. The circuit court was
concerned with the meaning of the evidence.
It is within the purview of the fact finder to say what facts the
evidence supports, which involves determining the meaning of disputed factual
inferences from the evidence presented. Landrey v. United Servs. Auto. Ass'n, 49
¶39 Furthermore, a finding of fact is clearly erroneous when "it
is against the great weight and clear preponderance of the evidence." State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358,
752 N.W.2d 748 (quoting State v. Sykes, 2005 WI 48, ¶21 n.7, 279 Wis. 2d
742, 695 N.W.2d 277). Therefore,
although evidence may have presented competing factual inferences, the circuit
court's findings are to be sustained if they do not go "against the great
weight and clear preponderance of the evidence."
parties do not challenge the finding of the first circuit court
that Lindemann was employed by the Affiliated Hospitals entity, and that under
the applicable statutory scheme at the time of Lindemann's negligence, the
Affiliated Hospitals entity was not a statutory health care provider. Therefore, under the facts of this case
Lindemann is an employee of a health care provider only if he was a borrowed
determine whether Lindemann was a borrowed employee of
(1) Did the employee actually or impliedly consent to work for a special employer? (2) Whose was the work he was performing at the time of injury? (3) Whose was the right to control the details of the work being performed? (4) For whose benefit primarily was the work being done?
1. Employee consent
¶42 In regard to the first question posed by the Seaman test,
whether Lindemann actually or impliedly consented to work for
I find that Doctor Lindemann
clearly consented to work for
This finding is not "against
the great weight and clear preponderance of the evidence." Arias, 311
¶43 However, the court of appeals made a contrary finding of fact,
asserting "[t]here is no evidence that Dr. Lindemann left [the Affiliated
Hospitals entity]'s employment and agreed to become a
¶44 When the Phelpses moved for reconsideration of the circuit court's
finding on this point, while still before the circuit court, they argued that
there could be no consent because there was no express contract between
While in some respects Lindemann remained an employee
of [the Affiliated Hospitals entity], I found that he consented, perhaps not
expressly but certainly quite clearly, to also become an employee of
¶45 Furthermore, although there may not have been an express agreement
between Lindemann and
2. Work performed
¶46 In regard to the second question posed by the Seaman test,
whether Lindemann was performing St. Joseph's work at the time of injury, the circuit court explained, "I
find that [Lindemann] did actually enter upon the work of St. Joseph's
Hospital . . . . [T]here
was an implied contract for [Lindemann] to do certain things at
¶47 The court of appeals made a contrary finding of fact here too,
i.e., that Lindemann did not perform the work of
¶48 Here, applying the correct standard of review, we conclude that the
circuit court's factual finding, that Lindemann performed the work of St.
Joseph's, is not clearly erroneous.
Lindemann was an unlicensed first-year medical resident. He was not authorized to work at any location
3. Right to control
¶49 In regard to whether
I find that
I find that on any reasonable day-to-day basis in terms of hours
and work to be performed and assignments that this was controlled by
The details of the work on a day-to-day basis were clearly
¶50 The court of appeals once again made a contrary finding, determining that St. Joseph's did not have the right to control the details of Lindemann's work:
[The Affiliated Hospitals entity] directed which
hospital Dr. Lindemann worked at and paid him. Dr. Lindemann and [the Affiliated Hospitals
entity] had a written contract, and [the Affiliated Hospitals entity] had the
sole right to terminate him. [The Affiliated Hospitals entity] never
relinquished any control over Dr. Lindemann. Indeed, as noted, while at
Phelps III, 307
¶51 Instead, under the proper standard of review, appellate courts are
to uphold a circuit court's findings of fact unless those findings go "against
the great weight and clear preponderance of the evidence." Arias, 311
Attorney] While you were at
Attorney] And did
In addition, Dr. Mahendr S. Kochar, Executive Director of the Affiliated Hospitals entity, stated in his affidavit:
While [the Affiliated Hospitals entity] is the technical and legal employer of the residents, [the Affiliated Hospitals entity] has no responsibility for training or supervision and control of the residents at the various hospitals where they are placed. . . . [The Affiliated Hospitals entity] is, in essence a conduit to facilitate payments, and has no supervisory or control role over the residents.
. . .
[The Affiliated Hospitals entity] has no knowledge of
the specific responsibilities of Dr. Lindemann or any other residents at
various hospitals including
Finally, Patricia Kaldor (Kaldor), the president of
Are residents who work at
In light of this evidence, we
cannot conclude that the circuit court's finding is contrary to "the great
weight and clear preponderance of the evidence." Arias, 311
¶52 When the Phelpses moved for reconsideration of the circuit court's
decision on the borrowed employee question, they argued that in order for a
borrowing employer to control the details of the borrowed employee's
performance, the loaning employer must relinquish full and exclusive control of
the borrowed employee. Edwards v.
Cutler-Hammer, Inc., 272 Wis. 54, 64, 74 N.W.2d 606 (1956) ("If [the
loaning master] can show that he has loaned the servant to another and surrendered
to the borrower all direction and control over him, then the borrower becomes
the master, who is alone liable for the acts of the servant." (quoting Anderson
v. Abramson, 13 N.W.2d 315, 316 (
The design of the residency program contemplated that the hospital would control the routine "details of [Lindemann's] work." It also contemplated that [the Affiliated Hospitals entity] would not control or supervise Lindemann's medical judgment. In an affidavit, the Executive Director of [the Affiliated Hospitals entity] assert[ed] that [the Affiliated Hospitals entity] ha[d] no responsibility for training or supervision and control of the residents or the various hospitals where they are placed. . . . According to the affidavit [of the Executive Director], a first year resident would be "under the supervision and control of the patient's attending physician." This evidence is not controverted in any material way, and it, perhaps along with other similar evidence, formed the basis on which Judge Sullivan dismissed [the Affiliated Hospitals entity] from this case, finding that it did not control Lindemann's performance as a physician.
¶53 In DePratt, we concluded that no finding that the general
employer relinquished full and exclusive control over the borrowed employee
under all circumstances is required in order for the borrowing employer to have
the right to control the details of the work performed for the borrowing
employer. DePratt, 102
Under the borrowed servant rule, the borrowing master, not the loaning master, is liable for the negligent acts of a loaned servant if the loaned servant becomes the servant of the borrowing master[,] . . . even though the loaned servant remains in the employ of the loaning master and is acting within the scope of his employment with the loaning master.
4. Primary benefit
¶54 In regard to whether Lindemann's work was performed for
I find that [Lindemann's work] was being done primarily
for the benefit of
¶55 Once again, the court of appeals made a contrary finding of fact
and asserted that Lindemann's work did not primarily benefit St. Joseph's
because "Dr. Lindemann's services benefitted the patients of the hospital
and the private physicians[;] most of all, Dr. Lindemann's work aided [the
Affiliated Hospitals entity] in its mission to train first-year residents in
order to become licensed physicians."
Phelps III, 307
the correct standard of review, however, we once again conclude that the
circuit court's finding is not clearly erroneous. We note that this factor, i.e., for whose
benefit the work was primarily performed, is largely derivative of the other
factual findings. Lindemann's conduct
was controlled by
¶57 Because we have upheld all of the circuit court's findings of fact
regarding whether Lindemann was a borrowed employee, we conclude that Lindemann
was a borrowed employee, under the test established in Seaman. The circuit court's finding makes clear that,
under the first factor, Lindemann consented to work for
¶58 Seaman explains that when facts are found sufficient to
satisfy the four factual parts of its test, the "relation of employer and
employee exists as between a special employer to whom an employee is loaned."
¶59 That the court of appeals reached a contrary result, Phelps III, 307 Wis. 2d 184, ¶31, stems from its failure to apply the appropriate standard of review to the circuit court's findings of fact and from its erroneous view that an employee must leave the employ of a general employer before that employee could become the employee of a borrowing employer.
¶60 Because Lindemann was St. Joseph's borrowed employee, "[t]he relation of employer and employee exist[ed]" between Lindemann and St. Joseph's, Seaman, 204 Wis. at 163, and accordingly, Lindemann was an employee of a health care provider within the meaning of Wis. Stat. ch. 655 and Wis. Stat. § 893.55(4). As a result, Gregory's claim for bystander negligent infliction of emotional distress is subject to those statutory provisions.
C. Effect of
¶61 After we granted defendants' petition for review, we requested
supplemental briefing from the parties to address whether Wis. Stat. ch. 655
bars claims brought by a bystander who claims that an employee of a health care
provider, or the health care provider itself, negligently provided health care
services to a relative of the bystander that caused emotional distress to the
bystander. Having concluded that Lindemann is an
employee of a health care provider because he is a borrowed employee of
¶62 We had the opportunity to address this very question in Finnegan,
but a majority of the court could not agree.
See Finnegan v. Patients Comp. Fund, 2003 WI 98, ¶2, 263
[N]either Wis. Stat. § 655.005 nor Wis. Stat. § 655.007 specifically describes a [bystander] type claim for emotional distress or confers standing on a bystander to bring such a claim in a medical malpractice lawsuit. Section 655.005(1) refers to all claims or derivative claims "for damages for bodily injury or death," and Wis. Stat. § 655.007 refers to the claims of patients and the derivative claims of specified relatives "for injury or death on account of malpractice." Emotional distress claims arising from witnessing an injury-causing event as a related bystander constitute an entirely different class of claim and are not mentioned.
specify that a relative's claim must be derivative to fall within the scope of
allowable medical malpractice recovery, and only certain relatives are
included. See Wis. Stat.
§ 655.007 ("[A]ny spouse, parent, minor sibling or child of the
patient having a derivative claim for injury or death on account of malpractice
is subject to this chapter."); Wis. Stat. § 655.005(1) ("Any
person listed in s. 655.007 having a claim or a derivative claim against a
health care provider . . . is subject to this
chapter."). Our jurisprudence
outlines the types of claims that are considered derivative. Claims for the loss of society,
companionship, and consortium are derivative even though they technically
"belong" to the close relative making the claim. Korth v. Am. Family Ins. Co., 115
Wis. 2d 326, 331, 340 N.W.2d 494 (1983) (a parent's claim for loss of
society and companionship with a child is derivative); Peeples v. Sargent,
77 Wis. 2d 612, 643, 253 N.W.2d 459 (1977) ([A] claim for loss of
consortium is [a] derivative personal injury right which does not pass to [the]
bankruptcy trustee[.]); Richie v. Am. Family Mut. Ins. Co., 140
¶63 The lead opinion in Finnegan explained that a claim for the
negligent infliction of emotional distress to a bystander is a direct, not a
derivative, claim, because such a claim "does not depend on the primary
tort victim's ability to make the claim."
[A] claim for negligent infliction of emotional
distress is not considered derivative; although it arises from a shared set of
underlying facts, as do loss of society, companionship, or consortium
claims[. N]egligent infliction of emotional
distress is an independent tort injury suffered by the bystander himself or
herself as a result of the shock of having witnessed an extraordinary and
traumatic event. [Bowen v. Lumbermens Mut. Cas. Co., 183
A plaintiff who sues for negligent infliction of emotional distress . . . is asserting that he or she has been the victim of an independent tort, not that he or she has a separate but dependent damages claim deriving from a tort injury to another, as in a derivative claim such as loss of consortium or society and companionship. . . . Unlike a . . . bystander claim, a derivative claim for loss of consortium or loss of society and companionship does not have its own elements distinct from the negligence claim to which it attaches; juries are instructed that loss of consortium or loss of society and companionship are categories of damages, not separate negligence inquiries. . . .
¶64 "Chapter 655 constitutes the exclusive procedure and remedy
for medical malpractice in
¶65 As Justice Sykes explained:
Because Chapter 655 exclusively governs all claims arising out of medical malpractice [against health care providers and their employees], and because the legislature did not include [bystander] claims in Wis. Stat. §§ 655.005(1) or 655.007, . . . negligent infliction of emotional distress claims arising out of medical malpractice are not actionable under Wisconsin law.
¶66 Lindemann was a borrowed employee of
¶67 We conclude that Lindemann was a borrowed employee of St. Joseph's,
and was therefore an employee of a health care provider under ch. 655. As a result, ch. 655 governs Gregory's
claim. We further conclude that ch. 655
does not permit claims arising from medical negligence other than those listed
in Wis. Stat. §§ 655.005(1) and 655.007, and the negligent infliction of
emotional distress to a bystander is not one of those claims. Therefore, Gregory's claim is not actionable
By the Court.—The decision of the court of appeals is reversed, and the cause is remanded to the circuit court.
¶68 ANN WALSH BRADLEY, J. (dissenting). Appellate standards of review define the roles of appellate courts and are often outcome determinative. Here, by applying an incorrect standard of review, the majority reaches an erroneous conclusion.
¶69 I write separately because (1) the majority fails to apply the correct appellate standard for review of a paper record; (2) it erroneously concludes that Dr. Lindemann was a borrowed employee; (3) unlike the majority, I conclude that Wis. Stat. ch. 655 does not bar Gregory Phelps' bystander claim for negligent infliction of emotional distress. Accordingly, I respectfully dissent.
¶70 The majority correctly explains the usual standard for reviewing a circuit court's decision: The circuit court's findings of facts are upheld unless they are clearly erroneous, but the application of the test to the facts presents a question of law which this court reviews independently.
¶71 Nevertheless, the usual clearly erroneous standard for reviewing a circuit court's factual findings does not apply in this case. Here, the circuit court judge who made the factual findings on review was not the same judge to preside over the earlier proceedings. Although this court had remanded for additional fact finding, the parties elected to have the circuit court judge decide the borrowed servant issue on the basis of the paper record without taking additional testimony.
¶72 The basis for deferring to a circuit court's factual findings disappears
when the circuit court does not see or hear witnesses' testimony. Vogt,
Inc. v. Int'l Bhd. Teamsters,
¶73 Court of Appeals Judge Thomas Cane and Attorney Kevin M. Long have
written a law review article criticizing the documentary exception. See Hon. Thomas Cane & Kevin M.
Long, Shifting the Main Event: The Documentary Evidence Exception Improperly
Converts the Appellate Courts into Fact-Finding Tribunals, 77 Marq. L. Rev.
475 (1993-94). However, these authors
recognize that the documentary exception is the law in
¶74 Nevertheless, the majority ignores this long line of precedent, overruling it sub silencio and without explanation. What ever happened to stare decisis?
¶75 The majority's mistake in selecting the wrong standard of review is exacerbated by its application of that standard. It confuses facts and law throughout its analysis of the borrowed employee issue. It correctly recognizes that when matters of historical and evidentiary fact are undisputed or have been found by the court, "application of the Seaman test to those facts is a question of law" that this court reviews independently. See majority op., ¶35.
¶76 Although the majority insists that the underlying facts are disputed, majority op., ¶38 n.10, a close look at the majority's analysis reveals that what is really disputed are the legal consequences of the facts. The majority erroneously treats each element of the Seaman test as a question of fact and defers to the circuit court's "findings" regarding each element.
¶77 As a result, the majority erroneously treats the circuit court's ultimate determination of law regarding the Seaman test as factual determinations that an appellate court must uphold unless clearly erroneous: "Because we have upheld all of the circuit court's findings of fact regarding whether Lindemann was a borrowed employee, we conclude that Lindemann was a borrowed employee[.]" Majority op., ¶57. This conclusion conflicts with the majority's earlier statement that application of the borrowed servant test presents a question of law for this court to decide independently.
¶78 I turn next to the question of whether Dr. Lindemann was a borrowed
¶79 Because we have stated that consent is "the most critical
inquiry in the Seaman test," Borneman v. Corwyn Transport, Ltd.,
¶80 The court of appeals concluded that these admissions,
"[c]oupled with the presumption that in the absence of evidence to the
contrary, the actor remains in his or her general employment, there appears to
be little doubt that Dr. Lindemann remained an employee of MCWAH."
¶81 With regard to the work performed factor, the court must determine
whether there was "[a]ctual entry by the employee upon the work of and for
the special employer pursuant to an express or implied contract so to
do." Borneman, 219
¶82 With regard to the right to control, the court of appeals
¶83 I need go no further to analyze the Seaman factors. It is clear that the court of appeals got it right and that the Seaman test has not been met. I agree with the following conclusion of the court of appeals:
In sum, after addressing the Seaman factors for
a "borrowed employee," we conclude that the test has not been met.
There is no evidence that Dr. Lindemann left MCWAH's employment and agreed to
¶84 I turn now to the majority opinion's conclusion that Wis. Stats. ch. 655 bars bystander claims for negligent infliction of emotional distress.
¶85 In Finnegan v. Wis. Patients Comp. Fund, 2003 WI 98, ¶¶ 40, 43-50, 263 Wis. 2d 574, 666 N.W.2d 797, I did not take a position on whether a parent's claim of negligent infliction of emotional distress resulting from medical malpractice is an independent cause of action or a derivative cause of action and whether under either analysis the claim can be brought within or outside chapter 655.
¶86 On rereading the Finnegan concurrence authored by Chief Justice Abrahamson and the Finnegan dissent authored by Justice Bablitch and joined by Justice Crooks, I am persuaded that either reasoning is reasonable and a cause of action exists for negligent infliction of emotional distress resulting from medical malpractice.
¶87 This is a bystander case and
a tortfeasor's liability is governed by Bowen v. Lumbermens Mutual Casualty
¶88 In bystander cases, a court rules on these factors on a case-by-case basis. The parties dispute whether the instant case satisfies the third factor. I conclude, as did the circuit court, that it does.
¶89 In Finnegan, 263
¶90 For the reasons set forth above, I respectfully dissent.
¶91 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
 Phelps v. Physicians
Ins. Co. of Wis., Inc., 2008 WI App 6, 307
 The Honorable John A. Franke of Milwaukee County Circuit Court presided.
 All further references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
 Wisconsin Stat. § 893.55(4)(b), which outlines the types of claims to which the noneconomic damages caps in § 893.55(4)(d) and (f) apply, 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 employes 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.
Wisconsin Stat. § 655.017, which links Wis. Stat. ch. 655 to the noneconomic damages caps set forth in Wis. Stat. § 893.55(4), 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 employe 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).
 The parties do not
argue that the presumption of application of our rulings to pending litigation
is overcome here. See generally Wenke
v. Gehl Co., 2004 WI 103, ¶¶69-75,
 On their first appeal, the
defendants had asked the court to stay its decision pending our resolution of Pierce
v. Physicians Insurance Co. of Wis., Inc., 2005 WI 14, 278 Wis. 2d 82,
692 N.W.2d 558, and Maurin
v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866. Phelps v. Physicians Ins. Co. of Wis.,
Inc., 2004 WI App 91, ¶50
n.11, 273 Wis. 2d 667, 681 N.W.2d 571 (Phelps I).
The court declined to do so.
 The circuit court struggled
with our decision in Finnegan v. Wisconsin Patients Compensation Fund,
2003 WI 98, 263 Wis. 2d 574, 666 N.W.2d 797, where we held that the Finnegans' claims for bystander
negligent infliction of emotional distress were barred.
 The circuit court also upheld the surviving children's awards of $45,000 each. No argument has been raised before us that those awards were erroneous.
 We agree that the review of the sufficiency of documentary evidence, for a variety of purposes, is normally a question of law that we review de novo. See, e.g., State ex rel. Grzelak v. Bertrand, 2003 WI 102, ¶7, 263 Wis. 2d 678, 665 N.W.2d 244 ("The legal sufficiency of [a] petition [for certiorari] is a question of law, which this court reviews de novo."); State v. A.S., 2001 WI 48, ¶26, 243 Wis. 2d 173, 626 N.W.2d 712 ("The sufficiency of a criminal complaint is a question of law, which we review de novo."); Thorp v. Town of Lebanon, 2000 WI 60, ¶35, 235 Wis. 2d 610, 612 N.W.2d 59 ("The legal sufficiency of a complaint presents an issue of law, which we review de novo."); but see Village of Menomonee Falls v. Veierstahler, 183 Wis. 2d 96, 101 n.7, 515 N.W.2d 290 (Ct. App. 1994) (citing State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 258 N.W.2d 700 (1977) and suggesting that Wisconsin law "is in conflict as to our standard of review of factual determinations or inferences made by a trial court based upon a documentary record").
 Justice Bradley suggests that we are sub silentio overruling a "long line of precedent" by refusing to apply the "documentary evidence exception" to the clearly erroneous standard of review. Justice Bradley's dissent, ¶74. Justice Bradley's contention is misguided for several reasons.
First, the documentary evidence exception applies to inferences
the circuit court draws from "established or undisputed facts" based
solely on a documentary record. Pfeifer v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 570, 360
N.W.2d 65 (Ct. App. 1984); see also generally Hon. Thomas Cane &
Kevin M. Long, Shifting the Main Event:
The Documentary Evidence Exception Improperly Converts the Appellate
Courts Into Fact-Finding Tribunals, 77 Marq. L. Rev. 475 (1994). Here, where the underlying facts are in
dispute, the circuit court resolves that dispute by exercising its fact-finding
function, and its findings are subject to the clearly erroneous standard of
review even if they are based solely on documentary evidence. Justice Bradley counters that the historical
facts are essentially not in dispute. Justice Bradley's dissent, ¶76. We disagree.
As a preliminary matter, if the facts are not in dispute, why did a
majority of this court previously remand this case for fact finding? Phelps II, 282
Second, Justice Bradley's assertion that precedent is
clear on the effect of the exception, Justice Bradley's dissent, ¶¶72-73, is erroneous. Veierstahler expressly noted that
Finally, although one rationale for the clearly erroneous standard of review is that "the [circuit court] is in a [better] position to pass on the credibility of the witnesses and the weight to be given to their testimony," Vogt, Inc. v. International Brotherhood of Teamsters, 270 Wis. 315, 71 N.W.2d 359 (1955), on reargument, 270 Wis. 321b, 321i, 74 N.W.2d 749 (1956), another important basis is the efficient use of judicial resources. As the United States Supreme Court has explained:
[E]ven where the [trial] judge's full knowledge of the factual setting can be acquired by the appellate court, that acquisition will often come at unusual expense, requiring the court to undertake the unaccustomed task of reviewing the entire record, not just to determine whether there existed the usual minimum support for the merits determination made by the factfinder below, but to determine whether urging of the opposite merits determination was substantially justified.
Pierce v. Underwood,
 The Honorable Michael P. Sullivan presided before the case was transferred to the Honorable John A. Franke.
 Ironically, the
Phelpses had initially argued that Lindemann was an employee of
 In 2005, the legislature enacted Wis. Stat. § 655.002(2)(c) (2005-06), which permits graduate medical education programs, such as the one operated by the Affiliated Hospitals entity, to opt into the provisions of Wis. Stat. ch. 655. The Affiliated Hospitals entity has since taken that step.
further discussion of DePratt v. Sergio, 102
 We also asked the
parties for supplemental briefing to address whether this issue had been
waived. Without addressing the relative
merits of the arguments for and against waiver, we conclude that we have the
authority to address it. "This
court has the discretion to review an issue that has been waived when it
involves a question of law, has been briefed by the opposing parties, and is of
sufficient public interest to merit a decision." Gumz v. N. States Power Co., 2007 WI
135, ¶73, 305
 In the same way that Wis. Stat. § 893.55(4)'s caps on noneconomic damages apply where the claims are brought against "health care providers and all employes of health care providers," see supra note 4, the claims for which Wis. Stat. ch. 655 applies are those brought against health care providers and employees of health care providers. Wis. Stat. § 655.005(1) ("Any person listed in s. 655.007 having a claim or a derivative claim against a health care provider or an employe of the health care provider, for damages for bodily injury or death due to acts or omissions of the employe of the health care provider acting within the scope of his or her employment and providing health care services, is subject to this chapter.") Since Lindemann is a borrowed employee of St. Joseph's, and therefore an employee of a health care provider, ch. 655 applies to Gregory's claim under § 655.005(1).
 Lindemann and Physicians
also argue that the record is insufficient to support Gregory's claim for
bystander negligent infliction of emotional distress under the majority
rationale in Finnegan. The
Phelpses disagree, and further argue that this argument has been waived. In Finnegan, we concluded that even if
Wis. Stat. ch. 655 permitted bystander claims, "[t]he hallmark of
negligent infliction of emotional distress is a contemporaneous or nearly
contemporaneous sensory perception of a sudden, traumatic, injury-producing event."
 See, e.g., State v. Williams, 2002 WI 1, ¶34-35, 249 Wis. 2d 492, 637 N.W.2d 733 (interpreting a prosecutor's comments at a sentencing hearing independently of the circuit court because the circuit court did not "base its interpretation of the prosecutor's comments on its recollection of the sentencing hearing, which would have included memories of voice inflections, observed facial expressions, and pauses in the testimony," but rather "interpreted the prosecutor's comments by reading the written record of the plea and sentencing hearings"); Lambrecht v. Kaczmarczyk, 2001 WI 25, ¶27, 241 Wis. 2d 804, 623 N.W.2d 751 ("This court and the circuit court are equally able to read the written record."); Cohn v. Town of Randall, 2001 WI App 176, ¶7, 247 Wis. 2d 118, 633 N.W.2d 674 ("We are in just as good a position as the trial court to make factual inferences based on documentary evidence and we need not defer to the trial court's findings."); Racine Educ. Ass'n v. Bd. Educ., 145 Wis. 2d 518, 521, 427 N.W.2d 414 (Ct. App. 1988) ("When the evidence to be considered is documentary, as it is here, we need not give any special deference to the trial court's findings. Our review becomes de novo."); Pfeifer v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 571 n.1, 360 N.W.2d 65 (Ct. App. 1984); (explaining that when evidence is documentary, a reviewing court is not bound by inferences drawn by the fact finder); State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977) ("[W]hen the evidence to be considered is documentary, a reviewing court is not bound by any inferences that may have been drawn by the factfinder and, therefore, need not afford a trial court's findings any special deference."); Vogt, Inc. v. Int'l Bhd. Teamsters, 270 Wis. 315, 71 N.W.2d 359 (1955), on reargument, 270 Wis. 321b, 321i, 74 N.W.2d 749 (1956) ("[The reason for the clearly erroneous standard is that the] appellate court must give weight to the findings of a trial court made in a contested matter upon oral testimony where the trial judge is in a position to pass on the credibility of the witnesses and the weight to be given to their testimony. He has full opportunity to observe the demeanor of the witnesses and judge their veracity——the appellate court does not. The reason for the rule disappears, however, when the appeal is presented upon no more than pleadings and affidavits, as is the case here.").
majority asserts that the law is in conflict regarding the standard for
reviewing a circuit court's factual findings and inferences based on a
documentary record. See majority
op., ¶38 n.10. It contends that Pfeifer,
a court of appeals decision, demonstrates this conflict. Pfeifer does not support the
majority's position. It cited Golz
with approval and rejected the clearly erroneous standard applied by the
majority today. See 121
 For instance, the
parties agree that there was a written employment agreement between MCWAH and
Dr. Lindemann; that Dr. Lindemann never signed an employment agreement with St.
Joseph's; that he received a paycheck and W-2 form from MCWAH; that St.
Joseph's reimbursed MCWAH for the salary it paid to its residents; and that Dr.
Lindemann was supervised and evaluated by program directors, who are officers
of MCWAH. The essence of the dispute is
whether these facts establish that
 Seaman Body Corp. v.
Indus. Comm'n of
 See majority op., ¶44 (deferring to the circuit court's "finding" that Lindemann consented to work for St. Joseph's); id., ¶46 (deferring to the circuit court's "finding" that Lindemann was doing the work of St. Joseph's); id., ¶51 (deferring to the circuit court's "finding . . . that St. Joseph's controlled the details of Lindemann's work"); id., ¶56 (deferring to the circuit court's "finding" that Lindemann's work was performed for St. Joseph's primary benefit).
 Finnegan v. Wisconsin
Patients Comp. Fund, 2003 WI 98, ¶¶43-50, 263