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eBook details

• Title: Hartley v. St. Francis Hospital and Others
• Author : Supreme Court of Wisconsin
• Release Date : January 02, 1964
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 68 KB

Description

PER CURIAM (on motion for rehearing). Prior to our decision in the instant case this court had repeatedly held that, where the tort-feasor or his insurance carrier settles a personal-injury claim which injury has been aggravated by malpractice and receives a release that contains no reservation of the malpractice cause of action, the tort-feasor or insurer succeeds by right of subrogation to the claimant's malpractice action. Greene v. Waters (1951), 260 Wis. 40, 43, 44, 49 N.W.2d 919; Noll v. Nugent (1934), 214 Wis. 204, 208, 252 N.W. 574; Retelle v. Sullivan (1927), 191 Wis. 576, 578, 579, 211 N.W. 756, 50 A.L.R. 1106; Fisher v. Milwaukee E.R. & L. Co. (1920), 173 Wis. 57, 60, 180 N.W. 269. Our original opinion herein had the effect of overruling these holdings sub silentio. We withdraw the statement in the original opinion that the right acquired by the instant insurance carrier for the malpractice action was not acquired by subrogation. We are satisfied that it was. However, we determine it to be contrary to sound public policy to allow plaintiff administratrix to acquire by assignment from the insurance carrier a right to recover damages for the malpractice in addition to the $25,000 received as the fixed value of the entire cause of action including the malpractice. This latter was the rationale of our original holding and we adhere thereto.

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