Wisconsin Supreme Court Orders $1 Million Payout in Malpractice Case
Midwest News • July 7, 2008
The Wisconsin Supreme Court has ordered an insurance company to pay nearly $1 million in a medical malpractice case.
The decision upholds an earlier ruling that Physicians Insurance Co. of ...
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Subject: More info on failure to diagnose suit
Posted On: July 7, 2008, 10:46 am CDT
Posted By: Interested bystander
Comment:
Here are some more details on the suit:
2006AP1566 Estate of Dale Otto v. Physicians Ins. Co.
This medical malpractice case involving two doctors, a medical clinic and their insurers, examines whether a default judgment was properly entered against an insurance company that allegedly failed to file a timely answer.
Some background: In 2003, the estate of Dale Otto and his surviving family members alleged that two physicians failed to diagnose that Mr. Otto's gastroesophageal reflux disease had been replaced by metastic esophageal cancer. They suit named the two doctors, the clinic and two fictitious insurers.
The names of the fictitious insurers were replaced in an amended complaint with two real insurance companies, including Physicians Insurance Co. (PIC). The doctors and the clinic filed an answer in which they denied liability, but PIC was not listed in the text of the answer nor the signature block.
The attorney representing the doctors and clinic, who also had done work on behalf of PIC in the past, said his office had forgotten to include PIC on the list of answering defendants. The estate contends more than a dozen additional filings also failed to include PIC, however. After several months of further proceedings in the case and PIC's motion for leave to file an amended answer that included PIC, the estate moved for a default judgment against PIC, which the circuit court granted. The estate also dismissed its claims against the doctors and clinic. The circuit court found PIC was liable to the plaintiffs in the total amount of $801,760, which was reduced slightly on appeal.
The court of appeals concluded that because PIC had failed to show excusable neglect for its untimely answer, the circuit court had properly entered a default judgment against PIC regardless of the timely answer by PIC's insureds.
Since an insurer's liability derives from the liability of its insured, PIC asserts that it would be absurd to adjudge the provider defendants' insurer liable for their negligence when the provider defendants themselves could have litigated the matter to completion and obtained a finding of no negligence and a dismissal of the plaintiff's complaint. PIC argues that the result of its default should at most be a finding that it had conceded providing coverage to the doctors and clinic.
The court is expected to address whether an insurer's default should result in a judgment against it for the full amount of the plaintiff's claimed damages where the insurer's insureds have filed a timely answer and denied liability. From Dunn County.
Subject: More info on failure to diagnose suit
2006AP1566 Estate of Dale Otto v. Physicians Ins. Co.
This medical malpractice case involving two doctors, a medical clinic and their insurers, examines whether a default judgment was properly entered against an insurance company that allegedly failed to file a timely answer.
Some background: In 2003, the estate of Dale Otto and his surviving family members alleged that two physicians failed to diagnose that Mr. Otto's gastroesophageal reflux disease had been replaced by metastic esophageal cancer. They suit named the two doctors, the clinic and two fictitious insurers.
The names of the fictitious insurers were replaced in an amended complaint with two real insurance companies, including Physicians Insurance Co. (PIC). The doctors and the clinic filed an answer in which they denied liability, but PIC was not listed in the text of the answer nor the signature block.
The attorney representing the doctors and clinic, who also had done work on behalf of PIC in the past, said his office had forgotten to include PIC on the list of answering defendants. The estate contends more than a dozen additional filings also failed to include PIC, however. After several months of further proceedings in the case and PIC's motion for leave to file an amended answer that included PIC, the estate moved for a default judgment against PIC, which the circuit court granted. The estate also dismissed its claims against the doctors and clinic. The circuit court found PIC was liable to the plaintiffs in the total amount of $801,760, which was reduced slightly on appeal.
The court of appeals concluded that because PIC had failed to show excusable neglect for its untimely answer, the circuit court had properly entered a default judgment against PIC regardless of the timely answer by PIC's insureds.
Since an insurer's liability derives from the liability of its insured, PIC asserts that it would be absurd to adjudge the provider defendants' insurer liable for their negligence when the provider defendants themselves could have litigated the matter to completion and obtained a finding of no negligence and a dismissal of the plaintiff's complaint. PIC argues that the result of its default should at most be a finding that it had conceded providing coverage to the doctors and clinic.
The court is expected to address whether an insurer's default should result in a judgment against it for the full amount of the plaintiff's claimed damages where the insurer's insureds have filed a timely answer and denied liability. From Dunn County.