Phelps v. Physicians Ins. Co. of Wisconsin, Inc. , 282 Wis. 2d 69 ( 2005 )

ANN WALSH BRADLEY, J.

¶ 1. This medical malpractice case arises out of the death of Adam Phelps at St. Joseph's Hospital in Milwaukee on November 24, 1998. At that time, Marlene Phelps, and her unborn twins, Adam and Kyle, were under the care of Dr. Matthew Lindemann, who was then an unlicensed first-year medical resident. The complaint alleged, and the circuit court found in a trial to the court, that Dr. Lindemann negligently caused Adam's death. The circuit court then apportioned 80% of the causal negligence to Dr. Lindemann and 20% to St. Joseph's hospital. The court of appeals subsequently reversed.¹

¶ 2. The petitioners, Gregory and Marlene Phelps, et al., seek review of the decision of the court of appeals. They contend that the court of appeals erred in holding that (1) excusable neglect warranted granting the defendants' motion to extend the time within which to pay their jury fee thus preserving their right to a jury trial; and (2) Dr. Lindemann was subject to the standard of care applicable to "his class." Additionally, the petitioners argue that the health care services review privilege found in Wis. Stat. § 146.38 (1997-98) does not apply to this case.²

¶ 3. Cross-petitioners, Dr. Lindemann and Physicians Insurance Company of Wisconsin, Inc., also seek review of the decision of the court of appeals. The cross-petitioners assert that the court of appeals erred in narrowly construing the term "health care provider" as it appears in Wis. Stat. § 893.55(4), so as to exclude Dr. Lindemann from its protection. According to the cross-petitioners, such a result is contrary to the legislative intent and inconsistent, with this court's prior case law.³

¶ 4. We conclude that (1) the cross-petitioners waived their right to a jury trial by not timely paying the jury fee, and the circuit court properly denied their motion to extend time for paying the fee; (2) Dr. Lindemann should be held to the standard of care applicable to an unlicensed first-year resident; (3) the health care services review privilege found in Wis. Stat. § 146.38 does not apply to this case; and (4) the cap on noneconomic damages imposed by Wis. Stat. § 893.55(4)(b) does not apply to Dr. Lindemann under the facts presented. However, we remand the matter to the circuit court for a determination of whether Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital and therefore entitled to the cap protection as an "employee" of a health care provider under Wis. Stat. § 893.55(4)(b). Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings.⁴

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¶ 5. The relevant facts are not in dispute. Marlene Phelps (hereinafter "Marlene") discovered that she was pregnant with twins in June 1998. Soon thereafter, she started bleeding and was successfully treated at St. Joseph's Hospital in Milwaukee. After that episode, she was placed on strict home bed rest.

¶ 6. Marlene's pregnancy progressed without incident until October 18, 1998, when another bleeding episode occurred. She was admitted to St. Joseph's Hospital and continued her program of bed rest. Two days later, an ultrasound revealed that one of the twins was a breech presentation (legs first). Based on this finding, Marlene was deemed a high-risk patient who required a c-section for delivery of the twins.

¶ 7. In the early morning of November 24, 1998, Marlene was awakened with constant suprapubic pain. The on-call resident, Dr. Matthew Lindemann, was contacted. Dr. Lindemann was an unlicensed first-year resident and, according to the circuit court's findings of facts, was an employee of the Medical College of Wisconsin Affiliated Hospital.^4a His primary duty was to assess and report findings and differential diagnoses to an upper level senior resident or to the attending obstetrician. He had no authority, however, to provide primary obstetrical care or perform a c-section on Marlene.

¶ 8. Dr. Lindemann ordered lactated ringers to be administered at 2:40 a.m. for suspected contractions. They did not alleviate Marlene's pain. At 3:00 a.m., Dr. Lindemann reached a differential diagnosis of pubic symphysis pain, bladder pain, labor or placental abruption. Accordingly, he ordered a foley catheter to determine if Marlene had a bladder infection. The urinalysis returned at 3:50 a.m. indicated that she did not.

¶ 9. Due to the continued pain she was experiencing, Marlene requested at 4:15 a.m. that the attending nurse call Dr. Lindemann again. Fetal heart monitoring and an ultrasound established that the twins' heart rates were within normal ranges. Dr. Lindemann informed Marlene that he would take a picture of the ultrasound so that he could consult an upper level senior resident.

¶ 10. After this examination, Dr. Lindemann ordered a potent narcotic, Demerol, to be administered to Marlene at 4:50 a.m. and 5:20 a.m. Dr. Lindemann never satisfactorily explained his whereabouts between 4:15 a.m. and 6:00 a.m. However, there is no evidence that he ever contacted an upper level senior resident to discuss Marlene's case.

¶ 11. Marlene remained in pain when Dr. Linde-mann examined her again at 6:00 a.m. At 6:45 a.m., her husband Gregory Phelps (hereinafter "Gregory") arrived at the hospital. Marlene informed Gregory that she felt the need 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.

¶ 12. Her husband rushed to the nurses' desk where he found another doctor, who delivered Adam Phelps (hereinafter "Adam") at 7:20 a.m. Adam was immediately rushed to the neonatal intensive care unit where resuscitation efforts began. The efforts proved unsuccessful, and he was pronounced dead at 7:36 a.m. Adam's death was caused from a combination of asphyxia due to cord entrapment and placental abruption, which impaired his oxygen supply.

¶ 13. During this time, Marlene was rushed from her room to the operating room where anesthesia was administered at 7:30 a.m. The second twin, Kyle, was delivered at 7:43 a.m. Afterward, the treating physicians questioned Dr. Lindemann about his decisions, his whereabouts, and his diagnosis. Dr. Lindemann's responses were primarily that he did not know or remember.

¶ 14. Marlene, Gregory, and their two children Caroline and Kyle (collectively, "the Phelpses") subsequently brought suit on the ground of negligence. On April 14, 2000, they filed an amended summons and complaint, naming Dr. Lindemann and his insurer, Physicians Insurance Company of Wisconsin, Inc. (collectively, "PIC"). PIC filed an answer on May 30, 2000, and demanded a trial by jury.

¶ 15. On July 10, 2001, the trial court entered a standard scheduling order, which provided as material to the jury-trial issue: "Jury fees must be paid in accordance with Local Rule #371 on or before 9-1-01 or the jury shall be deemed waived."⁵ PIC missed this deadline, paying the $72 jury fee by letter dated September 12, 2001, which was then filed by the clerk of circuit court on September 13,2001. PIC did not send a copy of the late payment letter to the Phelpses' counsel.

¶ 16. Assuming that the jury fee had been paid on time, on September 11, 2002, counsel for the Phelpses and PIC filed with the trial court a "stipulation to amend scheduling order," which, among other things, set a "12 person Jury Trial" for December 4, 2002. They later filed their respective proposed jury verdicts and proposed jury instructions with the court.

¶ 17. Two days before the scheduled jury trial, the Phelpses' lawyer contacted the court, having discovered that the jury fee was paid late in violation of the scheduling order and local rule. He argued that such action, coupled with PIC's failure to notify him of the late payment, resulted in a waiver of the right to a jury trial. In a telephone conference the next day, the trial court judge agreed, concluding that PIC had waived its right to a jury trial. The court explained:

This is a highly-complicated matter. I haven't been able to concentrate on anything else because of this issue now this afternoon, but that is neither here nor there. That is an aside, but the point of the matter is it's very clear in the scheduling order that if you don't pay the jury fee timely[,] which I did not know until now, the jury is waived. Gentlemen, the jury is waived. I'll see you tomorrow morning. We are trying this case to the court.

¶ 18. On December 4, 2002, the day of trial, counsel for PIC moved the circuit court to enlarge, nunc pro tunc, the time for them to pay the jury fee. In support of this request, counsel offered the testimony of Attorney Donald Peterson, whose firm was previously responsible for PIC's representation. Attorney Peterson explained that he became ill with kidney cancer in late August 2001, continued to do some work, but "stopped going into the office." He indicated that the file was shuffled between him and another attorney and that, as a result, the jury fee was not timely paid.

¶ 19. Despite this proffered argument of excusable neglect, the circuit court denied defense counsel's motion to enlarge the time and ordered the case to be tried to the court. The circuit court noted the complexity of the case and observed that there were several pending motions in limine. It appeared concerned that the case may not be able to be tried in the allotted time, requiring further delay. The court stated:

Well, you know, I suppose the argument goes that I could extend the time for the jury and I guess that is the argument that is made, but there is [sic] a huge number of issues in this case, okay, and a lot of issues about what evidence ought to be before the trier of fact and what won't go before the trier of fact, many of which, the majority of which, as a matter of fact, have been raised by the defense and Dr. Lindemann which have complicated this case tremendously, and in my opinion, it's not a suitable place for me to exercise my discretion for those reasons. That is largely it. It's a situation of the defense's making my position. This is a time of year it's going to be very difficult to get this case in as it is before the Christmas break and, you know, given the complications that have come up in the case because of claims of — requests by the defense for motions in limine, requests by the plaintiffs for motions in limine, additional discovery and all of this, these are things the court can handle in a court trial a lot more simply and keep the case moving so we get these parties their day in court, and I — sorry, but we are going to try this case to the court, folks.

¶ 20. During the course of the eight-day trial, the circuit court ordered the production of a letter from Dr. Dennis Worthington, the chairman of the Section of Maternal Fetal Medicine at St. Joseph's Hospital, to Dr. Dwight Cruikshank, the chairman of the Department of Obstetrics and Gynecology at the Medical College of Wisconsin. In the letter, Dr. Worthington complained that Dr. Lindemann had "failed in a number of areas" in connection with his treatment of Marlene.

¶ 21. At the completion of trial, the circuit court found that Dr. Lindemann negligently caused Adam's death. In its decision, the circuit court determined Dr. Lindemann to be causally negligent in his care and treatment under both the standard of care applicable to a first-year resident and the standard of care of a physician treating an obstetrical patient. It then apportioned 80% of the causal negligence to Dr. Lindemann and 20% to St. Joseph's Hospital. Gregory and Marlene were awarded $901,015, while their children Caroline and Kyle Phelps were each awarded $45,000.⁶ PIC appealed.

¶ 22. The court of appeals reversed and remanded for a jury trial, concluding that the circuit court had failed to apply the proper analysis with regard to the late payment of the jury fee, and that the defense counsel's late payment was caused by excusable neglect. Phelps v. Physicians Ins. Co., 2004 WI App 91, ¶¶ 12-13, 273 Wis. 2d 667, 681 N.W.2d 571. The court of appeals also held that as a first-year resident, Dr. Lindemann was not a licensed physician and should have been held to the standard of care "applicable to his class." Id., ¶ 25.

¶ 23. In addressing Dr. Worthington's letter concerning Dr. Lindemann's care of Marlene, the court of appeals determined that Dr. Lindemann was a "health care provider" for purposes of Wis. Stat. § 146.38 and set forth factual inquiries to be made on remand for determining the applicability of the privilege. Id., ¶¶ 36, 40. Finally, the court of appeals ruled that the cap on noneconomic damages imposed by Wis. Stat. § 893.55(4)(b) did not apply to Dr. Lindemann. Id., ¶ 47. Both the Phelpses and PIC petitioned this court for review.

II

¶ 24. This case presents us with several issues. Initially, we must determine whether PIC waived its right to a jury trial by failing to timely pay the jury fee, and if so, whether the circuit court properly exercised its discretion when it denied PIC's request to enlarge the time on the basis of excusable neglect. The decision to forgive late payment of a jury fee is within the circuit court's discretion. Chitwood v. A.O. Smith Harvestore Prods., Inc., 170 Wis. 2d 622, 628, 489 N.W.2d 697 (Ct. App. 1992). Accordingly, we review the decision of the circuit court to determine if it erroneously exercised its discretion.

¶ 25. Additionally, we must address the proper standard of care for Dr. Lindemann, a then unlicensed first-year medical resident. This presents a question of law subject to independent appellate review. See Taft v. Derricks, 2000 WI App 103, ¶ 10, 235 Wis. 2d 22, 613 N.W.2d 190. Finally, we must resolve the applicability of two statutes to this case: the health care services review privilege found in Wis. Stat. § 146.38, and the cap on noneconomic damages imposed by Wis. Stat. § 893.55(4)(b). The interpretation and application of these statutes also present questions of law subject to independent appellate review. Dunn County v. Judy K., 2002 WI 87, ¶ 13, 254 Wis. 2d 383, 647 N.W.2d 799 (citing Waukesha County v. Steven H., 2000 WI 28, ¶ 16, 233 Wis. 2d 344, 607 N.W.2d 607).

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¶ 26. We turn first to the issue of whether PIC waived its right to a juiy trial by failing to timely pay the jury fee, and, if so, whether the circuit court properly exercised its discretion when it denied PIC's motion to enlarge the time on the basis of excusable neglect. PIC submits that the answer to both of these questions is "no." It maintains that late payment of a jury fee is not a basis for finding waiver of the right to trial by jury. Additionally, it asserts that the circuit court erroneously exercised its discretion by denying its motion to extend the time for paying the jury fee. As such, PIC asks that we uphold the decision of the court of appeals to reverse and remand for a new jury trial.

¶ 27. The Phelpses counter that PIC waived its right to a jury trial by failing to timely pay the jury fee as required by the scheduling order and local rule. They also contend that the court of appeals erred in finding excusable neglect that warranted granting PIC's request the morning of trial to enlarge the time to pay the jury fee. According to the Phelpses, the evidence in the record supports affirming the decision of the circuit court to waive the jury trial and proceed with a bench trial instead.

¶ 28. Article I, Section 5 of the Wisconsin Constitution provides that "the right of trial by jury shall remain inviolate."⁷ However, that same section makes clear that "a jury may be waived by the parties in all cases in the manner prescribed by law." Wis. Const. art. I, § 5. Wisconsin Stat. §§ 805.01(3) and 814.61 are but two examples of how waiver may be effectuated. Wisconsin Stat. § 805.01(3) provides:

Waiver. The failure of a party to demand in accordance with sub. (2) a trial in the mode to which entitled constitutes a waiver of trial in such mode. The right to trial by jury is also waived if the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

¶ 29. Meanwhile, Wis. Stat. § 814.61(4), the provision more relevant to this case, states:

Jury fee. For a jury in all civil actions ... a nonrefundable fee of $6 perjuror demanded to hear the case to be paid by the party demanding a jury within the time permitted to demand a jury trial. If the jury fee is not paid, no jury may be called in the action, and the action may be tried to the court without a jury.

(Emphasis added.)

¶ 30. From the language of Wis. Stat. § 814.61(4), it is evident that the failure to pay a jury fee is a basis for finding waiver of the right to trial by jury. Because the venue of this case is Milwaukee County, the time permitted to pay the jury fee is dictated by the court's scheduling order and local court rules. Here, paragraph 9 of the court's scheduling order provides that "[j]ury fees must be paid in accordance with Local Rule #371 on or before 9-1-01 or the jury shall be deemed waived." Milwaukee County Circuit Court Local Rule 371 states that if a party requesting a jury fails to timely pay the fee: "[I]t shall constitute a waiver of the right of jury trial and consent by all parties to a trial to the court sitting without a jury."

¶ 31. This court has previously recognized that a reasonable jury fee does not violate the right of trial by jury as guaranteed by the Wisconsin Constitution. State v. Graf, 72 Wis. 2d 179, 185, 240 N.W.2d 387 (1976). In Graf, we confronted the issue in the context of a civil traffic forfeiture action. We noted that, "[j]ury fees have been rather uniformly found to he compatible with a right to a jury trial." Id. (citing Annot. 32 A.L.R. 865). Furthermore, we quoted the following language as providing a rationale for such fees:

"The Constitution does not guarantee to the citizen the right to litigate without expense, but simply protects him from imposition of such terms as unreasonably and injuriously interfere with his right to a remedy in the law, or impede the due administration of justice."

Id. (quoting Adams v. Corriston, 7 Minn. 456 (1862)). Accordingly, we held that "prepayment of jury fees and other costs as a condition for a jury trial... was not a violation of the Wisconsin Constitution's preservation of the right to a jury trial." Id. at 188.

¶ 32. Any further concern PIC may have regarding the timing requirement of the jury fee is foreclosed by the case of State ex rel. Prentice v. County Court, 70 Wis. 2d 230, 234 N.W.2d 283 (1975). There, a motorist filed her demand for a jury trial with payment of jury fee one day outside the applicable timetable. As a result, the court set the matter for bench trial. The motorist argued, among other things, that denial of a jury trial deprived her of a basic constitutional right. This court disagreed, reasoning that "while a defendant has a right to trial by jury in a civil case, he has no vested right under art. I, sec. 5, to the manner or time in which that right may be exercised or waived, since these are merely procedural matters to be determined by law." Id. at 240. This holding is dispositive in the present case, resulting in waiver of PIC's right to a jury trial.

¶ 33. Thus, the relevant question becomes whether the circuit court properly exercised its discretion when it denied PIC's motion to enlarge the time on the basis of excusable neglect. We have described excusable neglect as " 'that neglect which might have been the act of a reasonably prudent person under the same circumstances.' It is 'not synonymous with neglect, carelessness or inattentiveness.'" Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982) (quoting Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832 (1969)). When analyzing this standard, we may undertake our own review of the record to determine whether it "provide[s] support for the circuit court's decision." Id. at 471.

¶ 34. In the present case, the circuit court admittedly did not apply the excusable neglect standard when confronted with PIC's request the day of trial for an enlargement of time. Instead, it recognized that there were "a lot of issues about what evidence ought to be before the trier of fact and what won't go before the trier of fact." The court observed that "the majority of [the issues]" were "raised by the defense and Dr. Linde-mann which have complicated this case tremendously ... ."⁸ The court appeared concerned about getting the "parties their day in court" and not having to reschedule the case.⁹ It noted that because of the many complications raised, including motions in limine by both sides together with a request for additional discovery, that it would be difficult, even as a trial to the court, to get this case completed in the allotted time.

¶ 35. Although the circuit court did not apply the proper legal standard, we are satisfied that the record supports its decision to deny PIC's request for a motion to enlarge time. The reason for this largely stems from PIC's actions, or lack thereof, after mailing in its late payment. At that time, PIC had the option to be forthright, notify the circuit court and opposing counsel about the problem, and move for an enlargement of time to pay the jury fee. It chose none of these options. Indeed, 15 months passed by before the issue was raised. Even then, it was not raised by PIC but rather by opposing counsel. We view these facts as fatal to PIC's claim.

¶ 36. On this matter, Hedtcke is instructive. There, this court made clear that, "an enlargement of time will be allowed after the time has run only when the initial failure to do the act was the result of excusable neglect and there has been no inexcusable delay in moving for enlargement." Hedtcke, 109 Wis. 2d at 469-70 n.3 (emphasis added). Although Attorney Peterson's illness may have accounted for the initial failure to pay the fee,¹⁰ it cannot justify the subsequent delay in moving for an enlargement of time. See also Millis v. Raye, 16 Wis. 2d 79, 83, 113 N.W.2d 820 (1962) (counsel's failure to move for an enlargement of time until 14 weeks after a deadline passed is not excusable neglect). As a result, we uphold the circuit court's decision to deny PIC's motion for enlargement of time.

IV

¶ 37. The next issue we must address is the proper standard of care for Dr. Lindemann, a then unlicensed first-year resident. PIC maintains that Dr. Lindemann should have been held to the standard of care applicable to an unlicensed first-year resident. The Phelpses, on the other hand, assert that the standard of care should be that of an average, fully licensed physician who provides obstetrical care.

¶ 38. A leading case in Wisconsin regarding the standard of care for physicians is Johnson v. Agoncillo, 183 Wis. 2d 143, 515 N.W.2d 508 (Ct. App. 1994). There, Dr. Agoncillo, a family practitioner with a general medical practice, undertook to treat a high-risk obstetrical patient. The child was born early and suffered complications stemming from his prematurity. The Johnsons alleged that Dr. Agoncillo was negligent because he did not fulfill the standard of care applicable to physicians who specialize in treating high-risk obstetrical patients. Accordingly, they argued that the circuit court erred by not instructing the jury that Dr. Agon-cillo should be held to the standard of care applicable to those specialists.

¶ 39. The court of appeals rejected the Johnsons' claim. In doing so, it explained that the fact "that Dr. Agoncillo chose to care for and treat Ms. Johnson during her high-risk pregnancy did not transform his 'class' of physician to that of those who treat high-risk obstetrical patients." Id. at 152. As a result, the court of appeals concluded that Dr. Agoncillo "was and he remained a general family practitioner who treated obstetrical patients and, as instructed by the trial court, he was thus 'required to use the degree of care, skill, and judgment which is usually exercised in the same or similar circumstances' by the average physician in that class." Id.

¶ 40. The pattern jury instructions on medical negligence reflect the two competing standards of care at issue in Johnson: one for general physicians and one for specialists. Wis JI — Civil 1023 provides in relevant part:

In (treating) (diagnosing) (plaintiff)'s (injuries) (condition), (doctor) was required to use the degree of care, skill, and judgment which reasonable (doctors who are in the general practice) [or] (specialists who practice the specialty which (doctor) practices) would exercise in the same or similar circumstances, having due regard for the state of medical science at the time (plaintiff) was (treated) (diagnosed). A doctor who fails to conform to this standard is negligent. The burden is on (plaintiff) to prove that (doctor) was negligent.

¶ 41. The problem, of course, with Johnson and Wis JI — Civil 1023 is that both ignore the unique status of an unlicensed first-year resident.¹¹ As an unlicensed first-year resident, Dr. Lindemann's authority was limited. Although he could refer to himself as an "M.D.," his freedom of action was more restricted than that of a licensed physician. Indeed, the circuit court found that Dr. Lindemann "had no authority or privileges to provide primary obstetrical care," and "was not supposed to act as the primary attending physician." Rather, "[h]is primary duty was to assess and report findings and differential diagnoses to an upper level senior resident or to the attending obstetrician."

¶ 42. This court has not previously addressed the peculiar status of unlicensed first-year residents in the context of medical malpractice. Only a few states have addressed the question of whether first-year residents should be held to the same standard of care as licensed physicians, and the results appear somewhat mixed. Compare, e.g., Rush v. Akron Gen. Hosp., 171 N.E.2d 378, 381 (Ohio Ct. App. 1957) ("[w]hat is required in the case of an [unlicensed] intern is that he shall possess such skill and use such care and diligence in the handling of emergency cases as capable medical college graduates serving hospitals as interns ordinarily possess under similar circumstances . . . .") with Centman v. Cobb, 581 N.E.2d 1286, 1288 (Ind. Ct. App. 1991) ("[w]e conclude that such [a first-year resident] is a practitioner of medicine required to exercise the same standard of skill as a physician with an unlimited license to practice medicine.").

¶ 43. Answering this question now, we determine that physicians like Dr. Lindemann should be held to the standard of care applicable to an unlicensed first-year resident based on the unique restrictions described above.¹² Although we anticipate this new standard of care to be lower than that of an average licensed physician in some cases, we do not expect that it will become a grant of immunity. After all, unlicensed first-year residents are graduates of a medical school who provide sophisticated health care services appropriate to their "in training" status. Therefore, unlicensed residents could still be found negligent if, for example, they undertook to treat outside the scope of their authority and expertise, or they failed to consult with someone more skilled and experienced when the standard of care required it.

¶ 44. In the present case, the circuit court found Dr. Lindemann to be causally negligent under both standards of care. That is, it found him to be negligent under the standard applicable to a first-year resident as well as under the standard applicable to an average physician treating an obstetrical patient.¹³ The circuit court then apportioned 80% of the causal negligence to Dr. Lindemann and 20% to St. Joseph's Hospital. The court of appeals questioned this conclusion, noting that the percentages of comparative negligence allocated to Dr. Lindemann and St. Joseph's presumably may be influenced by a change in the standards by which their relative conduct was measured. Phelps, 273 Wis. 2d 667, ¶ 23.

¶ 45. The apportionment of comparative negligence is a matter left to the trier of fact. Voight v. Riesterer, 187 Wis. 2d 459, 467, 523 N.W.2d 133 (Ct. App. 1994). Where more than one reasonable inference can be drawn from the evidence, appellate courts will accept the inference drawn by the trier of fact. Id. (citing Brain v. Mann, 129 Wis. 2d 447, 452, 385 N.W.2d 227 (Ct. App. 1986)). Appellate courts will sustain the apportionment of comparative negligence unless the circuit court's determination was clearly erroneous. Id. (citing Wis. Stat. § 805.17(2)). Examining the record in the present case, we are satisfied that the circuit court's exercise of discretion was not clearly erroneous.

¶ 46. Here, the circuit court's factual findings and conclusions of law specifically delineate the ways in which Dr. Lindemann violated both standards of care.¹⁴ From these findings and conclusions emerge two primary faults that are equally applicable to unlicensed first-year residents and average physicians treating an obstetrical patient: (1) the failure to consult with another physician, whether an upper level resident or an attending obstetrician; and (2) the failure to move Marlene to the Labor and Delivery section of the hospital. The court's decision states in relevant part:

• At 4:15 a.m. "The standard of care applicable to a first year resident and the standard determined by this court in its letter decision [of an average physician treating an obstetrical patient], required the patient to be moved to Labor and Delivery and the attending physician or the staff physician to be contacted to assess the patient."

• At 6:00 a.m., "The standard of care required Dr. Lindemann to notify an upper level senior resident or the attending obstetrician and move Marlene Phelps to the Labor and Delivery section for closer monitoring by labor and delivery nurses and the staff or attending obstetrician."

• That the defendant, Dr. Matthew Lindemann was negligent in his care and treatment of Marlene Phelps and Adam Phelps under both the standard of care applicable to a first year resident and the standard determined to be applicable by this court in its decision dated November 27, 2002.

¶ 47. Thus, as applied to the facts of this case, the competing standards of care were not as disparate as the court of appeals surmised. A review of the record indicates that the circuit court found Dr. Lindemann negligent under either standard, and that his negligent conduct was essentially the same: (1) the failure to consult with another physician; and (2) the failure to move Marlene to the Labor and Delivery section of the hospital. Given these findings, we are not persuaded that the percentages of comparative negligence allocated to Dr. Lindemann for his actions and St. Joseph's Hospital for the implementation of its residency program would be influenced by a change in the standards by which their relative conduct was measured. Accordingly, we conclude that the circuit court's exercise of discretion was not clearly erroneous.

V

¶ 48. We turn next to the applicability of the health care services review privilege found in Wis. Stat. § 146.38. This issue stems from a letter written by Dr. Worthington to Dr. Cruikshank regarding Dr. Lindemann's actions on November 24, 1998. In the letter, Dr. Worthington complained that Dr. Lindemann had "failed in a number of areas," which he specified, in connection with his treatment of Marlene. PIC claims that the letter was protected from disclosure by Wis. Stat. § 146.38. The Phelpses, by contrast, argue that the privilege does not apply.

¶ 49. Wisconsin Stat. § 146.38(lm) provides, with exceptions not material here, that "[n]o person who participates in the review or evaluation of the services of health care providers ... may disclose any information acquired in connection with such review or evaluation." Wis. Stat. § 146.38(2) addresses several distinct categories of materials created by the statute and the applicability of the privilege to each one:

All organizations or evaluators reviewing or evaluating the services of health care providers shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10(4) or otherwise except as provided in sub. (3). No such record may be used in any civil action for personal injuries against the health care provider or facility; however, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10(4) or use in any civil action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.

¶ 50. The purpose of the health care services privilege is to " 'protect the confidentiality of the peer review process, in the hope that confidentiality would encourage free and open discussion, among physicians knowledgeable in an area, of the quality of treatment rendered by other physicians.'" Braverman v. Columbia Hospital, Inc., 2001 WI App 106, ¶ 14, 244 Wis. 2d 98, 629 N.W.2d 66 (quoting State ex rel. Good Samaritan v. Moroney, 123 Wis. 2d 89, 98, 365 N.W.2d 887 (Ct. App. 1985)). The peer review contemplated by the statute is designed to aid physicians on the hospital staff in maintaining and improving the quality of their work. Id. (citing Moroney, 123 Wis. 2d at 98).

¶ 51. In analyzing this issue, the first question posed is whether Dr. Lindemann is a "health care provider," so that Dr. Worthington's letter might qualify as a "review or evaluation" of Dr. Lindemann's "services" in connection with treatment of Marlene. The term "health care provider" is not defined in the statute for the health care services review privilege. However, by virtue of § 146.38(l)(b), it "includes an ambulance service provider, as defined in s. 146.50(l)(c), an emergency medical technician, as defined in s. 146.50(l)(e), and a first responder, as defined in s. 146.50(l)(hm)." Significantly, none of these three categories would qualify as "health care providers" under the more limited definition found in Wis. Stat. ch. 655, which governs medical malpractice claims against health care providers.¹⁵

¶ 52. Although it appears that the definition of "health care provider" under Wis. Stat. § 146.38(lm) is more expansive than the definition of "health care provider" under Wis. Stat. ch. 655, we need not definitely resolve the question. Instead, we determine that even if Dr. Lindemann is a "health care provider" under Wis. Stat. § 146.38(lm), the peer review privilege here does not apply because the letter was not part of the peer review evaluation process.

¶ 53. The parties dispute whether the information in Dr. Worthington's letter was "acquired in connection with such review or evaluation." In addressing this matter, we note that the party asserting the health care services review privilege bears the burden of establishing two conditions. First, the investigation must be part of a program organized and operated to improve the quality of health care at the hospital. Mallon v. Campbell, 178 Wis. 2d 278, 287, 504 N.W.2d 357 (Ct. App. 1993). Second, the person conducting the investigation must be acting on behalf of, or as part of a group with relatively constant membership, officers, a purpose and a set of regulations. Id.

¶ 54. We conclude that PIC cannot meet its burden. Here, the testimony of Patricia Kaldor, the vice-president in charge of patient services at St. Joseph's Hospital, established that any investigation conducted of Dr. Lindemann was initiated by the hospital. Moreover, Dr. Worthington confirmed that the hospital's peer review committee was not convened to review Dr. Lindemann's case.¹⁶ Thus, we are satisfied that the investigation of Dr. Lindemann was initiated to report a problem to Dr. Cruikshank, the supervisor of the residency program in which Dr. Lindemann was enrolled, and not to improve the quality of health care at the hospital. Accordingly, we determine that Wis. Stat. § 146.38 does not apply to this case.

VI

¶ 55. Finally, we consider the applicability of the cap on noneconomic damages imposed by Wis. Stat. § 893.55(4)(b). PIC argues that the damage limitations provided in Wis. Stat. § 893.55(4) apply to unlicensed first-year medical residents. Meanwhile, the Phelpses contend that the damage limitations do not apply to unlicensed first-year residents who are not covered by Wis. Stat. ch. 655.

¶ 56. Wisconsin Stat. § 893.55 has two parts. Subsections (l)-(3) set forth the statutes of limitations for actions to recover damages for injury arising from treatment by a health care provider:

(1) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:

(a) Three years from the date of the injury, or

(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

(2) If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (1), whichever is later.

(3) When a foreign object which has no therapeutic or diagnostic purpose or effect has been left in a patient's body, an action shall be commenced within one year after the patient is aware or, in the exercise of reasonable care, should have been aware of the presence of the object or within the time provided by sub. (1), whichever is later.

(Emphasis added.)

¶ 57. Subsections (4)-(5), by contrast, set forth the procedure for implementing the noneconomic damage cap in Wis. Stat. ch. 655.

(4) (a) In this subsection, "noneconomic damages" means moneys intended to compensate for pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; loss of consortium, society and companionship; or loss of love and affection.

(b) 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 employees 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.

(c) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d)...

(d) The limit on total noneconomic damages for each occurrence under par. (b) on or after May 25, 1995, shall be $350,000 and shall be adjusted by the director of state courts ...

(e) Economic damages recovered under ch. 655 for bodily injury or death, including any action or proceeding based on contribution or indemnification, shall he determined for the period during which the damages are expected to accrue, taking into account the estimated life expectancy of the person, then reduced to present value, taking into account the effects of inflation.

(f) Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04(4). If damages in excess of the limit under s. 895.04(4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04(4).

(5) Every award of damages under eh. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of injury to the date of award and for the period after the date of award, without regard to the limit under sub. (4) (d)...

(Emphasis added.)

¶ 58. As noted above, the subdivision at issue is Wis. Stat. § 893.55(4)(b). Within that subdivision, the parties dispute the meaning of the term "health care provider." The term "health care provider" is used elsewhere in Wis. Stat. § 893.55, in subsections (1) and (2). Typically, a term used in multiple subsections within a statute is given the same meaning. General Castings Corp. v. Winstead, 156 Wis. 2d 752, 759, 457 N.W.2d 557 (Ct. App. 1990). However, as the court of appeals recognized, "[t]his is one of those rare instances where it does not." Phelps, 273 Wis. 2d 667, ¶ 42.

¶ 59. In Clark v. Erdmann, 161 Wis. 2d 428, 468 N.W.2d 18 (1991), this court considered whether the medical malpractice statute of limitations found in Wis. Stat. § 893.55(1) applied to podiatrists. It concluded that it did, reasoning that the term "plainly applies to anyone who professionally provides health care to others. Podiatrists do exactly that: they provide health care to others; and, like other professional health care providers, they are licensed to practice by the state medical examining board pursuant to ch. 448, Stats." Id. at 438-39. The Clark decision is distinguishable from the present case, however, as it addressed Wis. Stat. § 893.55(1) dealing with the statute of limitations. There was no issue before it regarding Wis. Stat. ch. 655 or the noneconomic damage cap in Wis. Stat. § 893.55(4).

¶ 60. Since Clark, the court of appeals has extended this broad reading of "health care provider" to other health professions. See, e.g., Webb v. Ocularra Holding, Inc., 2000 WI App 25, ¶¶ 8-15, 232 Wis. 2d 495, 501-09, 606 N.W.2d 552 (optometrists), overruled on other grounds, Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860; Arenz v. Bronston, 224 Wis. 2d 507, 512-15, 592 N.W.2d 295 (Ct. App. 1999) (chiropractors); and Ritt v. Dental Care Associates, 199 Wis. 2d 48, 60-64, 543 N.W.2d 852, (Ct. App. 1995) (dentists). Again though, these cases considered only the applicability of Wis. Stat. § 895.55's statutes of limitation. None of them held that the medical malpractice noneconomic damage cap in Wis. Stat. § 893.55(4) applied to health care providers who are not subject to Wis. Stat. ch. 655.

¶ 61. Relying on the above cases, PIC maintains that Dr. Lindemann should also be considered a "health care provider" under Wis. Stat. § 893.55, as he professionally provided health care to Marlene as an unlicensed first-year resident. The problem with this argument, of course, is that it ignores the context in which the term "health care provider" is used. This case does not involve subsections (l)-(3) and the applicable statutes of limitations. Rather, it involves subsections (4)-(5) and the cap on noneconomic damages. This is significant, for subsections (4)-(5) specifically reference Wis. Stat. ch. 655 and/or the patients compensation fund.¹⁷ Likewise, Wis. Stat. § 655.017, which sets forth the cap on noneconomic damages in medical malpractice actions, specifically references Wis. Stat. § 893.55(4).¹⁸

¶ 62. If we were to accept PIC's argument and hold the cap in Wis. Stat. § 893.55(4) applicable to all health care providers, regardless of whether they fell outside Wis. Stat. ch. 655, troubling questions emerge. For example, what would the purpose of Wis. Stat. § 655.017 be? PIC's reading of Wis. Stat. § 893.55(4) as an independent cap on noneconomic damages would appear to render it superfluous. Moreover, how would courts apply Wis. Stat. § 893.55(4)(b), which references the Fund's payment limit, and Wis. Stat. § 893.55(4)(e) and (5), which expressly reference damages awarded "under ch. 655"? These cannot be applied to a non-chapter 655 case or non-chapter 655 health care provider. As a result, these provisions become conflicting and meaningless as applied to non-chapter 655 health care providers.

¶ 63. PIC's construction of "health care provider" in Wis. Stat. § 893.55 would also lead to absurd results. See Strenke v. Hogner, 2005 WI 25, ¶ 48, 279 Wis. 2d 52, 694 N.W.2d 296 ("Laws must be interpreted, considering the legal and practical consequences, to avoid unreasonable and absurd results."). The history behind the creation of Wis. Stat. ch. 655 in 1975 and the noneco-nomic damage cap in Wis. Stat. §§ 655.017 and 893.55(4) in 1985 was in response to a perceived medical malpractice liability insurance crisis. Yet, PIC would have us give any entity that professionally provides health care services (e.g., optometrists, chiropractors, dentists, etc.) the benefit of limited liability as well as Fund coverage, despite the fact that these entities do not pay into the Fund. This we decline to do. Such an expansion is best left to the legislature.

¶ 64. In the end, we view the provisions in Wis. Stat. § 893.55 regulating the award of noneconomic damages and Wis. Stat. ch. 655 as inextricably intertwined. Recognizing this interplay, the court of appeals observed: "[t]he legislature has unambiguously declared that the cap on noneconomic damages in WIS. STAT. § 893.55(4)(b) applies only to those who are health-care providers under WIS. STAT. ch. 655, and to 'employees of health care providers' as the phrase is further limited by § 893.55(4)(b)." Phelps, 273 Wis. 2d 667, ¶ 45. We agree with this conclusion. Thus, because Dr. Linde-mann was not a "health care provider" as the term is defined by Wis. Stat. ch. 655, we determine that the cap on noneconomic damages imposed by Wis. Stat. § 893.55(4)(b) does not apply.¹⁹

VII

¶ 65. In sum, we conclude that (1) the cross-petitioners waived their right to a jury trial by not timely paying the jury fee, and the circuit court properly denied their motion to extend time for paying the fee; (2) Dr. Lindemann should be held to the standard of care applicable to an unlicensed first-year resident; (3) the health care services review privilege found in Wis. Stat. § 146.38 does not apply to this case; and (4) the cap on noneconomic damages imposed by Wis. Stat. § 893.55(4) (b) does not apply to Dr. Lindemann under the facts presented. However, we remand the matter to the circuit court for a determination of whether Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital and therefore entitled to the cap protection as an "employee" of a health care provider under Wis. Stat. § 893.55(4)(b). Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings.²⁰

By the Court.&emdash;The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

¶ 66. JON E WILCOX, J. did not participate.

1 Phelps v. Physicians Ins. Co., 2004 WI App 91, 273 Wis. 2d 667, 681 N.W.2d 571 (reversing the order for judgment of the circuit court for Milwaukee County, Michael E Sullivan, Judge).

2 All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

3 The cross-petitioners also maintain that the surviving children should not have heen awarded "loss of society and companionship" damages stemming from their mother's "emotional distress injuries." The court of appeals declined to address this issue on grounds that it was inadequately briefed. Phelps, 273 Wis. 2d 667, ¶ 49. We therefore deem it waived and do not address it here.

4 The issue of whether Dr. Lindemann was a "borrowed employee" of St. Joseph's hospital arose twice at the circuit court level. The defendants argued, both in their brief in opposition to the plaintiffs' motion for declaratory judgment and their brief in support of a motion to reconsider, that Dr. Lindemann was a "borrowed employee" and therefore entitled to the cap protection under Wis. Stat. § 893.55(4)(b). The circuit court, however, never explicitly addressed the merits of the issue.

In its decision, the court of appeals remanded the matter, explaining, "The trial court made no findings on that issue. As noted, we cannot find facts." Phelps, 273 Wis. 2d 667, ¶ 46 n. 10. Like the court of appeals, because 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. In doing so, we are mindful that this may ultimately be dispositive of our discussion of the cap on noneconomic damages. Nevertheless, for completeness, we address the applicability of the cap in Section VI.

4a The question whether Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital is to be determined on remand. See ¶ 4, n.4, and ¶ 65.

5 Uppercasing omitted; bolding in original; underlined date handwritten.

6 We do not address whether these damages are affected by our recent decisions in Pierce v. Physicians Insurance Co. of Wisconsin, Inc., 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558, and Maurin v. Hall, 2004 WI 129, 276 Wis. 2d 18, 688 N.W.2d 655. Such issues were not briefed or argued by the parties.

7 The right of trial by jury is also codified by Wis. Stat. § 805.01. It reads: "The right of trial by jury as declared in article I, section 5 of the constitution or as given by a statute and the right of trial by the court shall be preserved to the parties inviolate."

8 In its opinion, the court of appeals cautioned that the fact a case might be easier to resolve without a jury trial does not trump the constitutional guarantee to one. Phelps, 273 Wis. 2d 667, ¶ 14 (citing Fabrikant v. Bache & Co., 609 F.2d 411, 419-432 (9th Cir. 1979) (there is no complexity-exception to the Seventh Amendment to the United States Constitution), cert, denied sub nom.) Although we are mindful of this concern, we conclude that there is sufficient evidence to sustain the circuit court's ruling.

9 The record indicates that the case was initially scheduled for trial on September 16, 2002. Subsequently, it was rescheduled for trial on December 4, 2002.

10 The Phelpses dispute this, noting that a review of Attorney Peterson's work-related activities in the summer and fall of 2001 reveals that he attended the deposition of Marlene's treating obstetrician the day after the jury fee was due. In support of this argument, the Phelpses filed a motion to supplement the record with a series of correspondence purporting to answer whether Attorney Peterson was indeed in the office on the dates that he claimed. Because we do not resolve the first issue on this basis, we now deny that motion.

11 Although they are graduates of medical school, first-year residents are unlicensed to practice medicine. The reason for this is that Wis. Stat. § 448.05(2) requires an additional "postgraduate training of 12 months" before issuance of a license.

12 Thus, our decision should not be read as an open invitation to further nuance the basic classifications of general practitioner and specialist. Although we establish a separate standard for an unlicensed physician, we do not intend separate standards for licensed "in training" physicians.

13 Contrary to the assertion of PIC, there was an effort made to prove that Dr. Lindemann met the lower standard of care. Indeed, PIC's own experts, Drs. Broekhuizen and Clark, addressed the matter.

14 To the extent the circuit court erred in applying the standard of care applicable to an average physician treating an obstetrical patient, we deem that error harmless.

15 Wisconsin Stat. §§ 655.001(8) and 655.002(1)(a) together define "health care provider," as relevant here, as "[a] physician." As we have seen, a "physician" is, as relevant here, "a medical... physician licensed under ch. 448." Wis. Stat. § 655.001(10m). Because Dr. Lindemann was not yet licensed when he treated Marlene, he was not a "health care provider" under Wis. Stat. ch. 655.

16 This fact is significant as Wis. Stat. § 146.38 is generally referred to as the "peer review" statute.

17 The "patients compensation fund" refers to the Wisconsin Patients Compensation Fund established by Wis. Stat. § 655.27.

18 Wisconsin Stat. § 655.017, entitled "Limitation on non-economic damages," 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 employee 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).

(Emphasis added.)

19 Like the court of appeals, we are mindful that the exclusion from Wis. Stat. ch. 655 of first-year residents is somewhat anomalous because they, like licensed physicians, provide some health care services to patients. Phelps, 273 Wis. 2d 667, ¶ 47. However, that is what the statutes provide, and the legislature is free to remedy this incongruity if it so chooses.

20 During the pendency of the appeal, the petitioners filed a motion to strike the brief of amicus curiae Ohio Insurance Company. The motion is denied.