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ESTATE OF CAPISTRANT v. FROEDTERT MEMORIAL HOSP.

No. 03-0014.

267 Wis.2d 455 (2003)

2003 WI App 213

671 N.W.2d 400

ESTATE OF Mark CAPISTRANT, deceased, by Patricia A. Capistrant, Independent Executor, Patricia A. Capistrant, individually, and Rebecca Capistrant, Sean Capistrant, and Tyler Capistrant, minors, by their Guardian ad Litem, Ted M. Warshafsky, Plaintiffs-Respondents, v. FROEDTERT MEMORIAL LUTHERAN HOSPITAL, INC., The Medical College of Wisconsin, Inc., and Medical College of Wisconsin Affiliated Hospitals, Inc., Defendants, PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., Defendant-Respondent, OHIC INSURANCE COMPANY, Defendant, WISCONSIN PATIENTS COMPENSATION FUND, Defendant-Appellant.

Court of Appeals of Wisconsin.

Decided September 23, 2003.

Attorney(s) appearing for the Case

On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul J. Kelly and Maile E. Buell of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of John S. Skilton and Sarah E. Reindl of Heller Ehrman White & McAuliffe, L.L.P., Madison; and Michael B. Van Sicklen and Naikang Tsao of Foley & Lardner, Madison.

Before Fine, Schudson and Curley, JJ.

¶ 1. FINE, J.

The Wisconsin Patients Compensation Fund appeals from a judgment directing it to pay $2,108,065 plus costs to the plaintiff Patricia A. Capistrant as the result of a jury's verdict finding that various physicians were responsible for the death of her husband, Mark Capistrant. The Fund contends that all of the primary insurance covering those physicians should be viewed as an homogenous pool of funds that must first be exhausted before the Fund's...

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