Manitowoc Public Schools Self-Insured v. Wisconsin Patients Compensation Fund

2003 WI 98, 666 N.W.2d 797, 263 Wis. 2d 574, 2003 Wisc. LEXIS 468

• Court: Wisconsin Supreme Court
• Decided: July 8, 2003
• Docket: 01-2911
• Status: Published

Opinions

DIANE S. SYKES, J.

¶ 1. We have this case on certification from the court of appeals for resolution of two issues: 1) does Chapter 655 of the Wisconsin Statutes (1999-2000),¹ which exclusively governs medical malpractice claims in this state, permit a bystander claim for negligent infliction of emotional distress in a medical malpractice lawsuit; and 2) if such a claim is statutorily permitted, does a misdiagnosis leading to the patient's eventual death give rise to a claim for negligent infliction of emotional distress under Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), where the claimant witnessed the patient's physical deterioration but did not witness an injury-producing event or its immediate aftermath?

¶ 2. Three members of the court — Justice Wilcox, Justice Prosser and the author of this lead opinion— conclude that Chapter 655 does not permit bystander claims for negligent infliction of emotional distress in medical malpractice lawsuits. Two members of the court — Justice Bablitch and Justice Crooks — conclude that bystander claims for negligent infliction of emotional distress are derivative claims that fall within and are actionable under Chapter 655. One member of the court — Chief Justice Abrahamson — concludes that if a Bowen bystander claim is an independent cause of action, it can be brought outside Chapter 655. Justice Bradley takes no position on the statutory question, concluding instead that the second certified question is dispositive.

¶ 3. The second issue on certification is a common-law question regarding whether a bystander claim can be maintained under Bowen where the injury-producing event is somewhat attenuated from the physical manifestation of injury and death that was witnessed by the claimant. Three members of the court (Justice Wilcox, Justice Prosser, and I) have concluded that this claim is statutorily impermissible, and therefore we need not necessarily address the separate common-law attenuation question presented in the certification. However, because of the split vote on the threshold statutory question, Justice Wilcox, Justice Prosser, and I join Part II of Chief Justice Abrahamson's opinion, in which she addresses Bowen and concludes that its factors have not been met. Justice Bradley also joins Part II of the chief justice's opinion on this second issue, which constitutes the opinion of the court. Justice Bablitch and Justice Crooks conclude that the Bowen factors have been met.

I. FACTS AND PROCEDURAL HISTORY

¶ 4. Jared Finnegan was born on March 3, 1997. During the first week of August, 1997, Jared stayed with his grandparents while his parents, Tanice and Joseph Finnegan, spent their five-year anniversary in Florida. During that time, Jared developed a low-grade fever. When the Finnegans returned on August 4th, Jared was still running a slightly elevated temperature of about 99.5 degrees. Tanice gave him Tylenol to bring his temperature down.

¶ 5. The next day, Jared became increasingly fussy. By 10:00 p.m., his temperature was up to 103.1 and he continued to run high temperatures through the morning of August 6th. Alarmed by Jared's persistent, unexplained fever, Tanice took Jared to the Manitowoc Clinic, where he was seen by the Finnegans' pediatrician, Dr. Kevin Molteni. Dr. Molteni ordered a complete blood count ("CBC") and blood culture. When the CBC indicated that Jared's white blood cell count fell within the normal range, Dr. Molteni advised Tanice to take Jared home, and to alternate doses of Tylenol and Motrin to combat the fever.

¶ 6. After the Finnegans returned home from the Manitowoc clinic, Jared's temperature spiked to 104 degrees, but came down somewhat after Tanice gave him the Tylenol and Motrin. Throughout the day, Jared continued to be very irritable. That evening he had episodes of vomiting, and Tanice called Dr. Molteni at home to report on his condition. Dr. Molteni advised Tanice to discontinue the Tylenol and to either phone the on-call physician or go to the emergency department if Jared got worse. Jared eventually fell asleep.

¶ 7. When Jared awoke at approximately 7:00 a.m. on August 7, 1997, he was moaning and appeared lethargic. The Finnegans took Jared back to the Mani-towoc Clinic at 8:30 a.m. Dr. Molteni noted that the results of Jared's blood culture showed bacteria in Jared's blood, and he told the Finnegans to immediately take Jared to the hospital for a lumbar puncture. Dr. Molteni indicated that the lumbar puncture would tell them whether the bacteria had entered Jared's spinal fluid. The Finnegans then drove Jared to Holy Family Hospital in Manitowoc, about five-to-ten minutes away.

¶ 8. The night before, on August 6, 1997, the laboratory had called Dr. Anne Schuette, who was on-call for Dr. Molteni. The lab advised Dr. Schuette that Jared's blood culture, ordered earlier that day by Dr. Molteni, had come back positive for bacteria. Dr. Schuette, however, failed to relate this information to either Dr. Molteni or the Finnegans themselves. It was not until Tanice returned with Jared to the Manitowoc Clinic the next morning that Dr. Molteni reviewed the test results.

¶ 9. Upon arriving at the hospital, Joseph Finnegan dropped Tanice and Jared off at the front door and Tanice took Jared up the elevator to the pediatric ward. Jared stopped breathing on the elevator. When Tanice entered the pediatric ward, she immediately called for the nurse's attention and the nurse motioned for her to take Jared into a room. Noting that Jared wasn't breathing, the nurse called a "code blue" and several hospital staff members rushed to help.

¶ 10. Tanice remained with Jared throughout and was asked to leave the room only when Dr. Molteni arrived to do the lumbar puncture. After performing the procedure, Dr. Molteni came out to Tanice and informed her that Jared's spinal fluid was cloudy and that a flight team was on its way from Children's Hospital in Milwaukee. When the flight team arrived, Jared was stabilized and prepared for the flight to Milwaukee. The Finnegans followed the helicopter by car. By the time Jared got to Children's Hospital, however, his infection had progressed too far and the doctors were unable to save his life. Jared died at Children's Hospital on August 7, 1997.

¶ 11. The Finnegans initially filed an action for wrongful death in Manitowoc County Circuit Court, alleging medical malpractice on the part of Dr. Schuette, Aurora Medical Group's on-call physician, based upon her failure to act upon the August 6th laboratory results. The Finnegans and Aurora Medical Group have settled the wrongful death claim for an undisclosed amount.

¶ 12. The Finnegans amended their complaint to assert an additional claim for negligent infliction of emotional distress under Bowen, arising out of the malpractice. This is the only remaining claim in the lawsuit.

¶ 13. Aurora moved for summary judgment to dismiss the negligent infliction of emotional distress claim, asserting that: 1) Bowen-type claims for emotional distress are not cognizable in actions arising from medical malpractice, which are governed exclusively by Chapter 655; and 2) even if bystander claims for emotional distress are statutorily permitted, Bowen itself precludes the Finnegans' claim.

¶ 14. The circuit court, the Honorable Fred H. Hazlewood, denied Aurora's motion for summary judgment, concluding that Chapter 655 recognizes Bowen claims for negligent infliction of emotional distress and that the Finnegans' claim for negligent infliction of emotional distress was not precluded by Bowen itself. The court of appeals granted Aurora's petition for interlocutory appeal, and certified the case to this court. We granted the certification to determine whether the Finnegans' bystander mental distress claim is permitted by Chapter 655, and if so, whether the claim is cognizable under Bowen itself. We now reverse.

II. STANDARD OF REVIEW

¶ 15. The first certified issue is whether Chapter 655 permits bystander claims for negligent infliction of emotional distress in medical malpractice actions. This is a question of statutory interpretation, subject to de novo appellate review. Czapinski v. St. Francis Hosp., 2000 WI 80, ¶ 12, 236 Wis. 2d 316, 613 N.W.2d 120 (citing Burks v. St. Joseph's Hosp., 227 Wis. 2d 811, 824, 596 N.W.2d 391 (1999)).

III. DISCUSSION

¶ 16. Wisconsin common law has "historically distrusted emotion" as the sole basis for a compensable tort claim. Bowen, 183 Wis. 2d at 638. For many years, courts treated the tort of negligent infliction of emotional distress with skepticism, devising "various criteria to balance a plaintiffs compensatory interests for emotional distress with the interests of the judicial system in authenticating claims and preventing unlimited liability for the tortfeasor." Id. at 640. Accordingly, our cases imposed rules limiting bystander emotional distress recovery to plaintiffs who 1) were in the "zone of danger" of the underlying accident or injury; 2) feared for their own safety; and 3) suffered physical injury in tandem with the emotional distress. Id. at 648.

¶ 17. Bowen eliminated these "rigid doctrinal limitations" on tort liability for bystander claims for negligent infliction of emotional distress. Id. at 651. Bowen held that "the traditional elements of a tort action in negligence — negligent conduct, causation and injury (here severe emotional distress) — should serve as the framework for evaluating a bystander's claim of negligent infliction of emotional distress." Id. at 652-53.

¶ 18. Bowen reiterated, however, the recurrent concerns about emotional distress claims: "Historically, the tort of negligent infliction of emotional distress has raised two concerns: (1) establishing authenticity of the claim and (2) ensuring fairness of the financial burden placed upon a defendant whose conduct was negligent." Id. at 655. Accordingly, the court in Bowen adopted three elemental requirements and applied a public policy analysis in order to "help assure that the claim ... is genuine, that allowing recovery is not likely to place an unreasonable burden upon the defendant, and that allowance of recovery will not contravene" public policy. Id. at 656.

¶ 19. The three prerequisites to a Bowen bystander claim for negligent infliction of emotional distress are: 1) the injury suffered by the victim must have been fatal or severe; 2) the claimant must be related to the victim as a spouse, parent, child, grandparent, grandchild, or sibling; and 3) the claimant must have witnessed the incident causing death or serious injury or "the gruesome aftermath of such an event minutes after it occurs." Id. at 656-58. In addition to these basic limitations, the court in Bowen said that liability for negligent infliction of emotional distress (like liability in ordinary negligence cases) may be precluded as a matter of law by considerations of public policy:

A court deals with ... concerns [about claim authenticity and fairness to the defendant] by exploring in each case such public policy considerations as: (1) whether the injury is too remote from the negligence; (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) whether in retrospect it appears too extraordinary that the negligence should have brought about the harm; (4) whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor; (5) whether allowance of recovery would be too likely to open the way to fraudulent claims; or (6) whether allowance of recovery would enter a filed that has no sensible or just stopping point.

Id. at 655.

¶ 20. The Finnegans' bystander claim for negligent infliction of emotional distress is premised upon having witnessed the physical deterioration and death of their son as a result of an act of medical malpractice. Medical malpractice is governed by Chapter 655 of the Wisconsin Statutes, enacted in 1975 to "controlQ all claims for death or injury resulting from medical malpractice." Czapinski, 236 Wis. 2d 316, ¶ 18. Chapter 655 "provides medical patients a recourse for health care liability and establishes the Patients Compensation Fund."² Id., ¶ 14.

¶ 21. We have previously recognized the legislative purposes that led to the enactment of Chapter 655:

The legislature cited a sudden increase in the number of malpractice suits, in the size of awards, and in

malpractice insurance premiums, and identified several impending dangers: increased health care costs, the prescription of elaborate "defensive" medical procedures, the unavailability of certain hazardous services and the possibility that physicians would curtail their practices.

Id. (citing State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 508, 261 N.W.2d 434 (1978)). Thus, Chapter 655 was intended to limit, not expand, medical malpractice liability. Northwest General Hosp. v. Yee, 115 Wis. 2d 59, 64, 339 N.W.2d 583 (1983).

¶ 22. It is now firmly established that Chapter 655 constitutes the exclusive procedure and remedy for medical malpractice in Wisconsin. Czapinski, 236 Wis. 2d 316, ¶ 14; Rineck v. Johnson, 155 Wis. 2d 659, 665, 456 N.W.2d 336 (1990);³ Strykowski, 81 Wis. 2d at 499; Ziulkowski v. Nierengarten, 210 Wis. 2d 98, 102, 565 N.W.2d 164 (Ct. App. 1997). Accordingly, any claim for negligent infliction of emotional distress arising out of medical malpractice must find expression within the statutory framework of Chapter 655.

¶ 23. Wisconsin Statutes § 655.005(1) provides:

Any person listed in s. 655.007 having a claim or a derivative claim against a health care provider or an employee of the health care provider, for damages for bodily injury or death due to acts or omissions of the employee of the health care provider acting within the scope of his or her employment and providing health care services, is subject to this chapter.

¶ 24. Wisconsin Statutes § 655.007 states:

On and after July 24,1975, any patient or the patient's representative having a claim or any 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.

¶ 25. As a primary matter, neither Wis. Stat. § 655.005 nor Wis. Stat. § 655.007 specifically describes a Bowen-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.

¶ 26. The statutes 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 derivative personal injury right which does not pass to bankruptcy trustee); Richie v. Am. Family Mut. Ins. Co., 140 Wis. 2d 51, 56, 409 N.W.2d 146 (Ct. App. 1987)([A] claim for loss of consortium is derivative in that "it derives from physical or mental injuries suffered by a family member.").

¶ 27. In contrast, 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, negligent 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, 183 Wis. 2d at 657-58. As we explained in Bowen:

The emotional harm from the serious injury or loss of a spouse, parent, child, grandparent, grandchild or sibling is not the harm compensated in this tort. The shock of seeing efforts to sáve the life of an injured spouse in an ambulance or hospital, for example, will not be compensated because it is a life experience that all may expect to endure. The compensable serious emotional distress of a bystander under the tort of negligent infliction of emotional distress is not measured by the acute emotional distress of the loss of the family member. Rather the damages arise from the bystander's observance of the circumstances of the death or serious injury, either when the incident occurs or soon after."

Bowen, 183 Wis. 2d at 659-60 (emphasis added). A Bowen claim for negligent infliction of emotional distress does not depend on the primary tort victim's ability to make the claim.

¶ 28. A plaintiff who sues for negligent infliction of emotional distress under Bowen 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. We have held that a parent's derivative claim for loss of society and companionship must be joined with the child's personal injury claim. See Shockley v. Prier, 66 Wis. 2d 394, 404, 225 N.W.2d 495 (1975). Unlike a Bowen 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. See Wis JI—Civil 1815 (loss of consortium), 1837 (parent's loss of society and companionship), 1838 (minor child's loss of society and companionship) (all appearing in the jury instruction manual under the subheading "Damages").

¶ 29. A Bowen bystander claim, as has been noted, has its own separate and distinct elements and rigorous proof prerequisites. See, supra, ¶¶ 16-18. A Bowen claim for negligent infliction of emotional distress is not merely a separate but dependent damages claim attaching to the primary negligence claim, but, rather, is a distinct and independent tort, on which the jury is separately instructed and must make separate, elemental findings in the special verdict.

See Wis JI — Civil 1510 (negligent infliction of emotional distress) (classified in the jury instruction manual among the negligence instructions, not the damages instructions).

¶ 30. Thus, I conclude (joined by Justices Wilcox and Prosser) that a claim for negligent infliction of emotional distress under Bowen is independent, not derivative'; as such, a Bowen claim premised upon medical malpractice is not recognized in Chapter 655. See Kosieradzki v. Matheys, 2002 WI App 191, ¶ 10,256 Wis. 2d 839, 649 N.W.2d 717 (concluding that under Bowen, "emotional distress claims are independent, not derivative"). Because Chapter 655 exclusively governs all claims arising out of medical malpractice, and because the legislature did not include Bowen-type claims in Wis. Stat. §§655.005(1) or 655.007, I conclude (joined by Justices Wilcox and Prosser) that negligent infliction of emotional distress claims arising out of medical malpractice are not actionable under Wisconsin law.⁴

¶ 31. Furthermore, Wis. Stat. § 893.55 does not, as the Finnegans contend, operate to expand the categories of claims or claimants allowed by Chapter 655 to encompass Bowen bystander claims arising out of medical malpractice. Entitled "Medical malpractice; limitation of actions; limitation of damages; itemization of damages," Wis. Stat. § 893.55 details certain procedural and substantive limits placed upon medical malpractice actions in this state. Specifically, Wis. Stat. § 893.55(1), (2), and (3) contain statutes of limitation for medical malpractice actions; subsection (4) specifies monetary limits on non-economic damages; subsection (5) requires an itemization of the categories of damages awarded in the special verdict; subsection (6) incorporates the rules of contributory negligence into medical malpractice actions; and subsection (7) alters the collateral source rule for purposes of medical malpractice actions. Thus, the provisions of Wis. Stat. § 893.55 enumerate and limit the damages that may be collected in niedical malpractice actions which, as a primary matter, remain governed by Chapter 655.

¶ 32. More specifically, Wis. Stat. § 893.55(4)(a) defines "noneconomic damages" as compensation 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." Wisconsin Statute § 893.55(5) provides that:

Every award of damages under ch. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant:

(a) Pain, suffering and noneconomic effects of disability.

(b) Loss of consortium, society and companionship or loss of love and affection.

(c) Loss of earnings or earning capacity.

(d) Each element of medical expenses.

(e) Other economic injuries and damages.

¶ 33. While Wis. Stat. § 893.55(4) enumerates "mental distress" as a noneconomic damage in a medical malpractice action, that section does not specifically address whose mental distress is included. However, loss of consortium, society, and companionship and loss of love and affection — the categories of damages traditionally recoverable by close relatives in derivative claims — are listed separately in Wis. Stat. § 893.55(4). Loss df consortium, society, companionship, love, and affection are also listed separately in Wis. Stat. § 893.55(5); the statute specifies that damages for the patient's "pain, suffering and noneconomic effects of disability" is to be itemized separately from the relative's damages for "loss of consortium, society and companionship or loss of love and affection." Wis. Stat. § 893.55(5)(a) and (b). We note that Wis. Stat. § 893.55(5)(b) makes no mention of "mental distress" damages, instead listing only "loss of consortium, society and companionship, or loss of love and affection." Wis. Stat. § 893.55(5)(b). Thus, the legislature has distinguished between damages that are recoverable by the patient and those that are recoverable by the patient's relatives. Relatives' recovery is confined to damages for loss of consortium, society, companionship, love, and affection, and does not include mental distress damages associated with an independent Bowen tort claim.

¶ 34. In Czapinski we rejected the argument that Wis. Stat. § 893.55 operates to expand the class of claimants entitled to recover for medical malpractice under Chapter 655. Czapinski, 236 Wis. 2d 316, ¶¶ 13, 19. Czapinski held that adult children do not have standing to sue for loss of society and companionship arising out of medical malpractice under Wis. Stat. § 655.007, and also concluded that Wis. Stat. § 893.55 does not operate to confer standing or expand the allowable scope of medical malpractice claims or claimants under Chapter 655. Id.

¶ 35. Similarly here, Wis. Stat. § 893.55 does not authorize bystander claims for negligent infliction of emotional distress arising out of medical malpractice where such claims are otherwise impermissible under Chapter 655. Wisconsin Statute § 893.55 limits recoverable damages in medical malpractice actions and requires separate itemization of each element of damage. Wis. Stat. § 893.55(4) and (5). The statute does not expand the scope or nature of medical malpractice liability beyond that which is permitted by Chapter 655.

¶ 36. This conclusion is consistent with the court of appeals' decision in Ziulkowski, 210 Wis. 2d at 102-06. Ziulkowski presented the narrower question of whether adult children of victims of medical malpractice can maintain a Bowen claim for negligent infliction of emotional distress. The court of appeals concluded that neither Bowen nor Chapter 655 permits such a claim. Ziulkowski, 210 Wis. 2d at 102, 106. The question in this case is broader, and my analysis differs somewhat from the analysis in Ziulkowski; nevertheless, Ziulkowski; conclusion is consistent with the conclusion reached here.

¶ 37. In Chapter 655, the legislature has established an exclusive framework for medical malpractice litigation in this state, and has limited the classes of allowable claims and eligible claimants. I conclude that neither Wis. Stat. §§ 655.005 nor 655.007 explicitly or implicitly allows a Bowen-type bystander claim for negligent infliction of emotional distress. Wisconsin Statute § 893.55 enumerates and limits the types of damages that are recoverable when authorized by Chapter 655 in the first instance; it does not operate to expand the classes of allowable claims or eligible claimants under Chapter 655. I conclude that the independent bystander tort of negligent infliction of emotional distress is not actionable in the medical malpractice context.

¶ 38. As a result of our conclusion on the statutory question, Justices Wilcox, Prosser, and I need not necessarily resolve the second certified question, which presents a common-law issue regarding the scope of Bowen. Specifically, the second certified question is whether a bystander claim for negligent infliction of emotional distress can be made where there is some attenuation between the injury-causing event and the physical deterioration and death from that injury, and where the claimant witnesses the deterioration and death of the victim, but not the injury-causing event or its immediate aftermath. Because the court is split on the statutory question, Justices Wilcox, Prosser, and I join Part II of Chief Justice Abrahamson's opinion, in which she addresses the Bowen issue and concludes that the Bowen factors are not met. Justice Bradley also joins Part II of the chief justice's opinion. Accordingly, the order of the circuit court is reversed.

By the Court. — The order of the Manitowoc County Circuit Court is reversed.

¶ 39. I am authorized to state that Justices JON R WILCOX and DAVID T. PROSSER, JR. join this opinion.

1 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version.

2 Wisconsin Statute § 655.27 "create[s] a patients compensation fund for the purpose of paying that portion of a medical malpractice claim which is in excess of [the limits expressed in the chapter]" for "paying future medical expense payments under § 655.015" and for "paying claims under" § 655.27(1m). The fund "provide[s] occurrence coverage for claims against health care providers that have complied with th[e] chapter, and against employees of those health care providers, and for reasonable and necessary expenses incurred in payment of claims and fund administrative expenses." The chapter provides a detailed outline for the administration of the fund, including "Peer Review Activities," § 655.27(1m); "Fund Administration and Operation," § 655.27(2); Fee Assessment, Establishment, Limitation, and Collection, § 655.27(3); "Fund Accounting and Audit," § 655.27(4); "Claims Procedures," § 655.27(5); a legislatively designated "Integrity of [the] Fund" which ensures that it "shall be held in trust for the purposes of th[e] chapter and may not be used for purposes other than those of th[e] chapter," § 655.27(6); and, finally, for "Actions Against Insurers, Self-insurers, or Providers." § 655.27(7).

3 Rineck v. Johnson, 155 Wis. 2d 659, 665, 456 N.W.2d 336 (1990), was overruled on other grounds in Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 514 N.W.2d 399 (1994).

4 Chief Justice Abrahamson's opinion contends that negligent infliction of emotional distress arising out of medical malpractice is actionable as "a valid tort claim outside chapter 655," citing Johnson v. Rogers Memorial Hospital, Inc., 2001 WI 68, 244 Wis. 2d 364, 627 N.W.2d 890; McEvoy v. Group Health Cooperative of Eau Claire, 213 Wis. 2d 507, 570 N.W.2d 397 (1997); and Northwest General Hospital v. Yee, 115 Wis. 2d 59, 339 N.W.2d 583 (1983). Chief Justice Abrahamson's opinion, ¶¶ 47-50. Yee was a contract action on a medical debt. Yee, 115 Wis. 2d at 66. McEvoy was a bad faith insurance claim against an HMO. McEvoy, 213 Wis. 2d at 513. Neither case involved a claim for personal injury arising out of or premised upon medical malpractice. In Johnson, the plaintiff parents sued their adult daughter's therapists on negligence and contract theories for allegedly implanting false memories about childhood abuse. We only very summarily addressed the applicability of Chapter 655 in Johnson, citing Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999), and Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159 (1988), for the proposition that "such claims... [may] move forward outside the realm of chapter 655." Johnson, 244 Wis. 2d 364, ¶ 20. However, neither Sawyer nor Schuster specifically addressed the applicability or exclusivity of Chapter 655. Accordingly, because Johnson's treatment of the issue was very cursory and was based entirely on two cases that did not even address the issue, I conclude that Johnson is neither helpful nor controlling here.