Sawyer v. Midelfort
In Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999), the supreme court reviewed the six factors set forth above and concluded that none prohibited a third-party claim for a direct injury based on medical malpractice.
However, the court also considered the "collateral burden" that the recognition of such a third-party claim may have on the therapist-patient relationship as an additional public policy basis relevant to whether the lawsuit should proceed. See Sawyer, 227 Wis. 2d at 147, 595 N.W.2d at 434.
It defined its collateral burden concerns in terms of two additional public policy factors:
(1) treatment modalities and (2) the confidentiality of the therapist-patient relationship.
In regard to treatment modalities, the supreme court examined whether third-party liability may cause therapists to refuse to treat patients who believed they may have been sexually abused or to refrain from using new and innovative forms of therapy which the therapist believed were best suited for the condition from which the patient suffered. See id.
The supreme court reasoned that, under the facts found in Sawyer, treatment modalities were an insufficient public policy basis to preclude the lawsuit because the standard of care owed to a patient by a therapist is not increased by permitting a third-party cause of action, as the therapist continues to be obligated to provide care in the manner exercised by the average psychologist acting in the same or similar circumstances. See id. at 148, 595 N.W.2d at 435.