Jensen v. Mcpherson

1. This case comes to us by a grant of a leave to appeal. David D. McPherson, M.D., OHIC Insurance Company and Wisconsin Patients Compensation Fund (collectively ""McPherson"") appeal a circuit court order denying a motion to dismiss the 2001 medical malpractice claim of Erik Jensen, a minor, by his guardian ad litem, Charles F. Stierman and the State of Wisconsin Department of Health and Family Services (collectively ""Erik""). McPherson also appeals the circuit court order granting Erik's motion for consolidation of a 19971 action and the 2001 action. McPherson argues that under Wis. Stat. § 802.06(2)(a)10 (1999-2000)2 Erik's 2001 action should have been dismissed on the grounds that the 1997 action was pending in Walworth county (No. 97-CV-00704) between the same parties for the same cause. We disagree. Erik was not a party to the 1997 action because he was not properly named as a plaintiff in the complaint filed by his parents; additionally, Erik did not have a court-appointed guardian's services, as is required under Wis. Stat. § 803.01(3)(a), until after the 1997 action was declared a mistrial. We affirm the circuit court's decision to deny McPherson's motion to dismiss; we affirm the circuit court's granting of Erik's motion to consolidate the 1997 and 2001 actions and uphold the circuit court's discretionary decision to set a new scheduling order. 2. In 1997, a complaint was filed against McPherson and other defendants3 asserting claims of medical malpractice and failure to obtain informed consent in connection with the delivery of Erik. The caption to the final amended complaint identifies the plaintiffs as follows: