Guzman v. St. Francis Hospital, Inc.

234 Wis.2d 170 (2000) 2000 WI 34 609 N.W.2d 166

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.

No. 98-2710.

Supreme Court of Wisconsin.

Oral argument April 5, 2000. Decided May 2, 2000.

*171 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.

*172 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. 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.

¶ 1. PER CURIAM.

The court is equally divided on whether to affirm or reverse the order of the circuit court for Milwaukee County. Chief Justice Abrahamson, Justices Bablitch and Bradley would affirm. Justices Wilcox, Crooks and Sykes would reverse. Justice Prosser did not participate.

[1]

¶ 2. 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 *173 declining to remand to court of appeals on a tie vote on bypass because court of appeals had previously decided issue).

¶ 3. Accordingly, we vacate our order granting bypass and remand to the court of appeals.

By the Court. — Order granting bypass vacated and cause remanded to the court of appeals.