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.

The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.

2. David J. Loveland of Baraboo, Wisconsin claims $20,383.20 for lost income due to the his wrongful incarceration allegedly caused by an error made by Waukesha County Circuit Court. In August 2003, the claimant pled guilty to a 5th offense OWI in Waukesha County. The claimant was charged as a fifth-time offender based on the his prior OWI convictions in 1995, 1996, 1998 and 2000. Waukesha County Circuit Court sentenced him as a fifth offender to 2 years confinement plus 3 years extended supervision. In August 2009, the claimant's extended supervision was revoked based on a new OWI charge in Milwaukee County and he was ordered re-confined. In March 2010, Milwaukee County Circuit Court sentenced him for 4th offense OWI because the court did not count the 1995 and 1996 OWI convictions. The claimant filed a post-conviction motion alleging that the Waukesha County Circuit Court also should not have counted these earlier convictions against him in 2003. In April 2010, based on a stipulation between parties, Waukesha County Circuit Court adjusted the claimant's 2003 conviction to 4th offense OWI, reduced his sentence to one year-the maximum for that charge-and ordered him released. By that time the claimant had served two years, 10 months and 24 days based on the original sentence and supervision revocation. He requests reimbursement for one year, 10 months and 24 days spent in confinement. The claimant has based the amount of his claim on $894 per month, the amount he receives in Social Security Disability.

DOJ, representing the State Court System, recommends denial of this claim. DOJ states that the state is not legally liable for this claim. DOJ also states that it is not clear that the claimant's 2003 conviction for 5th offense OWI involved any negligence on the part of Waukesha County Circuit Court. Although it appears that the claimant's 1995 and 1996 OWI convictions were vacated sometime before his 2010 OWI conviction in Milwaukee County, the claimant has failed to present any evidence that those convictions were vacated in 2003 at the time the Waukesha County Court sentenced him for 5th offense OWI. DOJ notes that the claimant was represented by counsel at all court proceeding in Waukesha County in 2003 and at no time did he or his counsel object to the charge or sentence of 5th offense OWI. DOJ notes that the claimant never raised an objection to this sentence until after his March 2010 conviction for 4th offense OWI in Milwaukee County. Finally, DOJ notes that the claimant is not entitled to compensation as an Innocent Convict pursuant to § 775.05, Stats. He has not presented any evidence that he was innocent of the 2003 OWI and in fact, pled guilty to the charge, making him ineligible to receive compensation under § 775.05, Stats.

The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.

S555 3. Rommain Steven Isham of Duluth, Minnesota claims $3,650,000.00 for compensation pursuant to § 775.05, Wis. Stats. On July 19, 1990, the claimant was convicted of sexually assaulting an 8 year old child and served 10 years in prison as a result of his conviction. The claimant states that he suffered severe physical and sexual abuse while in prison due to his label as a "child molester". The claimant states that he served his entire sentence in prison because he refused to attend sex offender treatment, which would have made him eligible for an earlier release. The claimant states that he refused this treatment because of his innocence. In 2009, while investigating a different case, DOJ Division of Criminal Investigation Special Agent James Ohm had cause to speak with the claimant's ex-girlfriend, the mother of his alleged victim. The mother told Agent Ohm that the claimant was not guilty of the crime of which he'd been convicted and that her son recanted his testimony when he was 13 years old. The son confirmed this information to Agent Ohm via telephone. Agent Ohm contacted the Douglas County District Attorney's Office and was told to investigate the matter. Agent Ohm discovered that several years after recanting to his mother, the victim made a formal statement to the Sheboygan County Sheriff's Department recanting his testimony. Agent Ohm interviewed the victim in person and found him credible. Agent Ohm also corroborated the victim's recantation with his brother and ex-girlfriend. Based on Agent Ohm's investigation the Douglas County DA filed a motion to vacate the claimant's conviction. A hearing was held in May 2010, during which Agent Ohm and the former victim, Jeremy Kaseno, then 28 years old, testified. Mr. Kaseno testified that he was very young when he made the charges and that he became caught up in the lie and was afraid to tell the truth. He also testified that his life was in turmoil at the time, having been in foster care and then suffering the death of his grandfather with whom he lived for a short time. He also testified that he felt pressured by his abusive father to maintain the lie. Mr. Kaseno expressed remorse for his lie and support for overturning the claimant's conviction. The conviction was vacated on May 11, 2010. The claimant requests reimbursement in the amount of $1,000 per day of his incarceration.

The Douglas County District Attorney's Office declined to respond to this claim.