Report correctly enrolled on 10-28-2011.

Read first time and referred:

The Honorable, The Senate:

Enclosed is the report of the State Claims Board covering the claims heard on October 11, 2011.

Those claims approved for payment pursuant to the provisions of ss. 16.007 and 775.05 Stats., have been paid directly by the Board.

This report is for the information of the Legislature. The Board would appreciate your acceptance and publication of it in the Journal to inform the members of the Legislature.

The following issues were considered by the board:

A. The applicability of standard waiver language to Compensation for Innocent Convict payments made pursuant to § 775.05, Stats. Following discussion, there was a motion to approve using revised waiver language on checks issued pursuant to § 775.05 Stats., such that the general language will be "Acceptance of this check releases the state, its employees, agents and officers from any further liability under Wis. Stat. § 775.05 related to this claim."

B. Whether or not to reissue previous payment awarded to Chaunte Ott on May 18, 2010, in light of the Board's decision regarding of standard waiver language to Compensation for Innocent Convict payments made pursuant to § 775.05, Stats. Following discussion, the board directed reissue of the payment awarded to Chaunte Ott using the revised release language set forth above.

The Board Finds:

S554 1. Jessica and Tina Kosnar of Madison, Wisconsin claim $6,638.04 for cost of veterinary care and value of their pet dog, Cookie, who died while under the care of the UW Veterinary Teaching Hospital (VTH). The claimants state that when they brought Cookie to VTH on May 19, 2010, he was generally healthy with no life-threatening conditions. The claimants state that VTH staff requested approval to conduct a liver biopsy and gallbladder needle aspirate in order to further investigate results from prior testing. The claimants allege that VTH staff failed to fully inform them of the risks associated with the procedures, including the possibility that if Cookie's gallbladder was not normal, the puncture from the aspirate might not seal itself off, causing bile to leak into Cookie's abdomen. The claimants state VTH also failed to inform them that a safer, laparoscopic procedure was available. The claimants state that after the aspirate procedure, VTH staff saw, via ultrasound, that there was fluid leaking into Cookie's abdomen but that the ultrasound did not allow them to determine the source or type of the fluid. The claimants note that if VTH had conducted the laparoscopic procedure, the staff would have clearly seen that Cookie's gallbladder was abnormal and was the source of the leaking fluid. Instead, after the procedure, Cookie was left untreated and in pain until six to eight hours later when VTH staff noticed his worsening condition, indicative of infection and fluid in the abdomen, and conducted emergency surgery to remove his gallbladder. Cookie survived the surgery but died the next morning. The claimants believe that Cookie's death was caused by an unreasonable delay in diagnosis and treatment by VTH staff. The claimants note that Cookie's procedure was conducted at 4:45 p.m. and that his pathology slides were not read until the next day because the pathology staff left for the evening. The claimants believe that if VTH staff had reviewed Cookie's pathology sample sooner, they would have immediately seen that Cookie's gallbladder was abnormal and needed to be removed. The claimants also believe it was irresponsible to leave unsupervised residents in charge of VTH's Critical Care Unit and that a more experienced veterinarian should have been called in as Cookie's condition worsened. The claimants believe that VTH staff was negligent and that their treatment of Cookie failed to meet the standard of reasonable veterinary care.

UW recommends denial of this claim. UW states that it is incorrect that Cookie was brought to VTH on May 19, 2010, for "routine care". UW states that Cookie was 10 years old and had a history of serious health conditions. The May 19 visit was to conduct an ultrasound to investigate elevated liver enzymes found at a visit the week before. Based on the results of the ultrasound, VTH staff recommended a liver biopsy and gallbladder aspirate. UW states that VTH staff fully explained the risks of the procedure and that Jessica Kosnar signed a consent form indicating these risks. UW notes that the small amount fluid leaking into the abdomen was observed via ultrasound after the procedure but that ultrasound imagery is not able to distinguish between blood and bile. UW states that it was entirely plausible that the fluid observed was a small amount of blood from the liver biopsy (which would not be cause for concern) as opposed to bile leaking from the gallbladder (which would cause concern). UW states that VTH staff is very experienced doing ultrasound guided aspirates and that serious complications from this procedure are exceedingly rare. UW notes that the 4th year resident who conducted the procedure was board certified in radiology. UW notes that, although the laparoscopic procedure was a possibility, that procedure is actually more invasive and was therefore was not considered an appropriate option. VTH staff denies leaving Cookie untreated and in pain. Cookie's medical records show that he was given pain medication and continually monitored. The claimants allege that if the gallbladder removal had occurred sooner, Cookie would not have died. UW states that all that can be known for certain is that Cookie was much sicker than the claimants realized when they brought him to VTH. UW believes there is no way to know whether Cookie's prognosis would have been any better had VTH staff conducted the surgery earlier in the evening. UW notes that, as a result of Cookie's complications, VTH has changed its procedures and no longer conducts these types of tests after 3 p.m. UW states that the supervision of residents at VTH meets the standards set by the national Veterinary Medicine Association, and that these standards allow for consultation with a board certified veterinarian by phone, as occurred in Cookie's case. The UW believes that the claimants have provided no evidence that the care provided by VTH staff was in any way inappropriate or sub-standard based on prevailing standards of veterinary care.