Audrey Guzman v. St. Francis Hospital, Inc.
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2000 WI 34 SUPREME COURT OF WISCONSIN Case No.: 98-2710 Complete Title of Case: Audrey Guzman, Nicanor Guzman, Jessica Guzman, a minor, and Steven Guzman, a Minor, by their Guardian ad Litem, Plaintiffs-Respondents v. St. Francis Hospital, Inc., American Continental Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Appellants, St. Francis Hospital, Defendant-Third-Party Plaintiff, James Sullivan, M.D., Physicians Insurance Company of Wisconsin, Richard Fitzpatrick, M.D., and Southeastern Emergency Medical Services, S.C., Third-Party Defendants-Appellants, XY & Z Insurance Company, Third-Party Defendant. ON BYPASS FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: May 2, 2000 April 5, 2000 Circuit Milwaukee Patricia D. McMahon JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For defendants-appellants, St. Francis Hospital, Inc. and American Continental Insurance Company, there were briefs (in the court of appeals) by John A. Nelson, Timothy W. Feeley and von Briesen, Purtell & Roper, S.C., Milwaukee. For defendant-appellant, Wisconsin Patients Compensation Fund, there were briefs (in the court of appeals) by Steven J. Caulum and Bell, Gierhart & Moore, S.C., Madison, and William H. Levit, Jr., Michael B. Apfeld, and Godfrey & Kahn, S.C., Milwaukee, and oral argument by Michael B. Apfeld. For the third-party defendant-appellant, James Sullivan, M.D., there were briefs (in the court of appeals) by Paul Kelly, Amy Doyle and Schellinger & Doyle, S.C., Waukesha. For the third-party defendant-appellant, Richard Fitzpatrick, M.D., there were briefs (in the court of appeals) by Lori Gendelman, Jeffrey J.P. Conta and Otjen, Van Ert, Lieb & Weir, S.C., Milwaukee. For the third-party defendant-appellant, Southeastern Emergency Medical Services, S.C., there were briefs (in the court of appeals) by Mary Lee Ratzel, Peter F. Mullaney and Peterson, Johnson & Murray, S.C., Milwaukee. For the third-party defendants-appellants there was oral argument by John S. Skilton and Foley and Lardner, Madison. For the plaintiffs-respondents there was a brief (in the court of appeals) by Ted M. Warshafsky and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee, and Edward E. Robinson and Cannon & Dunphy, S.C., of counsel, Brookfield, and oral argument by Ted M. Warshafsky. An amicus curiae brief was filed by David M. 2 Skoglind, and Aiken & Scoptur, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers. An amicus curiae brief was filed by Richard H. Middleton, Jr., Ned Miltenberg, and the Association of Trial Lawyers of America, Washington, D.C., and Merrick R. Domnitz and Domnitz, Mawicke & Goisman, S.C., Milwaukee, on behalf of the Association of Trial Lawyers of America. 3 2000 WI 34 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-2710 STATE OF WISCONSIN : Audrey Guzman, Nicanor Guzman, Jessica Guzman, a minor, and Steven Guzman, a minor, by their Guardian ad Litem, Plaintiffs-Respondents, IN SUPREME COURT FILED MAY 2, 2000 Cornelia G. Clark Clerk of Supreme Court Madison, WI v. St. Francis Hospital, Inc., American Continental Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Appellants, St. Francis Hospital, Defendant-Third-Party Plaintiff, James Sullivan, M.D., Physicians Insurance Company of Wisconsin, Richard Fitzpatrick, M.D., and Southeastern Emergency Medical Services, S.C., Third-Party DefendantsAppellants, XY & Z Insurance Company, Third-Party Defendant. No. 98-2710 APPEAL from an order of the Circuit Court for Milwaukee County, Patricia D. McMahon, Judge. Order granting bypass vacated and cause remanded to the Court of Appeals. ΒΆ1 to PER CURIAM. affirm or The court is equally divided on whether reverse Milwaukee County. the of the circuit court for Chief Justice Abrahamson, Justices Bablitch and Bradley would affirm. would reverse. order Justices Wilcox, Crooks and Sykes Justice Prosser did not participate. When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals. State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995) (remanding to court of appeals on a tie vote on certification); State v. Elam, 195 Wis. 2d 683, 684-85, 538 N.W.2d 249 (1995) (restating rule but declining to remand to court of appeals on a tie vote on bypass because court of appeals had previously decided issue). Accordingly, we vacate our order granting bypass and remand to the court of appeals. By the Court. Order granting remanded to the court of appeals. 2 bypass vacated and cause No. 1 98-2710
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