¶ 68. (dissenting). Appellate standards of review defíne the roles of appellate courts and are often outcome determinative. Here, by applying an incorrect standard of review, the majority reaches an erroneous conclusion.
¶ 69. I write separately because (1) the majority fails to apply the correct appellate standard for review of a paper record; (2) it erroneously concludes that Dr. Lindemann was a borrowed employee; (3) unlike the majority, I conclude that Wis. Stat. ch. 655 does not bar Gregory Phelps' bystander claim for negligent infliction of emotional distress. Accordingly, I respectfully dissent.
I
¶ 70. The majority correctly explains the usual standard for reviewing a circuit court's decision: The circuit court's findings of facts are upheld unless they are clearly erroneous, but the application of the test to the facts presents a question of law which this court reviews independently.
¶ 71. Nevertheless, the usual clearly erroneous standard for reviewing a circuit court's factual findings *44does not apply in this case. Here, the circuit court judge who made the factual findings on review was not the same judge to preside over the earlier proceedings. Although this court had remanded for additional fact finding, the parties elected to have the circuit court judge decide the borrowed servant issue on the basis of the paper record without taking additional testimony.
¶ 72. The basis for deferring to a circuit court's factual findings disappears when the circuit court does not see or hear witnesses' testimony. Vogt, Inc. v. Int'l Bhd. Teamsters, 270 Wis. 315, 71 N.W.2d 359 (1955), on reargument, 270 Wis. 321b, 321i, 74 N.W.2d 749 (1956). Numerous Wisconsin cases have recognized that when a circuit court's inferences and findings of fact are based solely on a paper record rather than on an evaluation of oral testimony, an appellate court does not apply the clearly erroneous standard of review to the circuit court's factual findings.1 This exception to the usual rule is called the documentary exception.
*45¶ 73. Court of Appeals Judge Thomas Cane and Attorney Kevin M. Long have written a law review article criticizing the documentary exception. See Hon. Thomas Cane & Kevin M. Long, Shifting the Main Event: The Documentary Evidence Exception Improperly Converts the Appellate Courts into Fact-Finding Tribunals, 77 Marq. L. Rev. 475 (1993-94). However, these authors recognize that the documentary exception is the law in Wisconsin. See id. at 475-76.
*46¶ 74. Nevertheless, the majority ignores this long line of precedent, overruling it sub silencio and without explanation. What ever happened to stare decisis?
¶ 75. The majority's mistake in selecting the wrong standard of review is exacerbated by its application of that standard. It confuses facts and law throughout its analysis of the borrowed employee issue. It correctly recognizes that when matters of historical and evidentiary fact are undisputed or have been found by the court, "application of the Seaman test to those facts is a question of law" that this court reviews independently. See majority op., ¶ 35.
¶ 76. Although the majority insists that the underlying facts are disputed, majority op., ¶ 38 n.10, a close look at the majority's analysis reveals that what is really disputed are the legal consequences of the facts.2 The majority erroneously treats each element of the Seaman3 test as a question of fact and defers to the circuit court's "findings" regarding each element.4
*47¶ 77. As a result, the majority erroneously treats the circuit court's ultimate determination of law regarding the Seaman test as factual determinations that an appellate court must uphold unless clearly erroneous: "Because we have upheld all of the circuit court's findings of fact regarding whether Lindemann was a borrowed employee, we conclude that Lindemann was a borrowed employee[.]" Majority op., ¶ 57. This conclusion conflicts with the majority's earlier statement that application of the borrowed servant test presents a question of law for this court to decide independently.
II
¶ 78. I turn next to the question of whether Dr. Lindemann was a borrowed employee of St. Joseph's hospital. In order to reach the result that Dr. Lindemann was a borrowed employee, the majority necessarily had to apply the clearly erroneous standard to the circuit court's conclusions of law. By contrast, the court of appeals persuasively marshaled the evidence, applied the Seaman test to the facts, and ultimately concluded that Dr. Lindemann was not a borrowed employee.
¶ 79. Because we have stated that consent is "the most critical inquiry in the Seaman test," Borneman v. Corwyn Transport, Ltd., 219 Wis. 2d 346, 356, 580 N.W.2d 253 (1998), I begin with an examination of the consent factor. The court of appeals determined that the most persuasive evidence regarding the consent factor was "Dr. Lindemann's own testimony and the admissions of St. Joseph's Hospital." Phelps v. Physi*48cians Ins. Co. Wis., 2008 WI App 6, ¶ 25, 307 Wis. 2d 184, 744 N.W.2d 880. In response to requests for admission, "St. Joseph's denied being Dr. Lindemann's employer, denied having the right to control or supervise Dr. Lindemann and denied being legally responsible for Dr. Lindemann's health care services." Id.
¶ 80. The court of appeals concluded that these admissions, "[c]oupled with the presumption that in the absence of evidence to the contrary, the actor remains in his or her general employment, there appears to be little doubt that Dr. Lindemann remained an employee of MCWAH." Id. (internal quotations and citations omitted). By contrast, the majority opinion simply opines "[i]t is difficult to imagine how Lindemann could not have consented to work for St. Joseph's when everything that he did took place there in furtherance of St. Joseph's purposes." Majority op., ¶ 42.
¶ 81. With regard to the work performed factor, the court must determine whether there was "[a]ctual entiy by the employee upon the work of and for the special employer pursuant to an express or implied contract so to do." Borneman, 219 Wis. 2d at 353. The court of appeals explained that not every private physician who sees hospitalized patients becomes an employee of the hospital and that St. Joseph's did not choose to make residents employees. Rather, St. Joseph's contracted with MCWAH and its program director, who paid, assigned, and evaluated residents. Phelps, 307 Wis. 2d 184, ¶ 27. The majority, however, merely concludes that "Lindemann assisted St. Joseph's in fulfilling its health care purpose by caring for St. Joseph's patients[.]" Majority op., ¶ 48.
¶ 82. With regard to the right to control, the court of appeals concluded that St. Joseph's did not control the details of Dr. Lindemann's work. Phelps, 307 *49Wis. 2d 184, ¶ 28. The court of appeals based its determination, in part, on the undisputed fact that Dr. Lindemann's supervisors were doctors associated with the MCWAH rather than employees of St. Joseph's. Id.
¶ 83. I need go no further to analyze the Seaman factors. It is clear that the court of appeals got it right and that the Seaman test has not been met. I agree with the following conclusion of the court of appeals:
In sum, after addressing the Seaman factors for a "borrowed employee," we conclude that the test has not been met. There is no evidence that Dr. Lindemann left MCWAH's employment and agreed to become a St. Joseph's employee. Dr. Lindemann provided medical services similar to those provided by private physicians who are not St. Joseph's employees. MCWAH directed which hospital Dr. Lindemann worked at and paid him. Dr. Lindemann and MCWAH had a written contract, and MCWAH had the sole right to terminate him. MCWAH never relinquished any control over Dr. Lindemann. Indeed, as noted, while at St. Joseph's no hospital employee supervised Dr. Lindemann, and Dr. Lindemann was never given a handbook or any rules setting out St. Joseph's procedures. Thus, the right to control Dr. Lindemann remained in the hands of MCWAH's program director, MCWAH senior residents and private physicians. Finally, Dr. Lindemann's services benefitted the patients of the hospital and the private physicians but most of all, Dr. Lindemann's work aided MCWAH in its mission to train first-year residents in order to become licensed physicians. Therefore, Dr. Lindemann was not a "borrowed employee."
Id., ¶ 31.
Ill
¶ 84. I turn now to the majority opinion's conclusion that Wis. Stats, ch. 655 bars bystander claims for negligent infliction of emotional distress.
*50¶ 85. In Finnegan v. Wis. Patients Comp. Fund, 2003 WI 98, ¶¶ 40, 43-50, 263 Wis. 2d 574, 666 N.W.2d 797, I did not take a position on whether a parent's claim of negligent infliction of emotional distress resulting from medical malpractice is an independent cause of action or a derivative cause of action and whether under either analysis the claim can be brought within or outside chapter 655.
¶ 86. On rereading the Finnegan concurrence authored by Chief Justice Abrahamson5 and the Finnegan dissent authored by Justice Bablitch and joined by Justice Crooks,6 I am persuaded that either reasoning is reasonable and a cause of action exists for negligent infliction of emotional distress resulting from medical malpractice.
¶ 87. This is a bystander case and a tortfeasor's liability is governed by Bowen v. Lumbermens Mutual Casualty Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994). In Bowen this court set forth three factors for determining whether a plaintiff could recover on his or her bystander claim for negligent infliction of emotional distress: (1) "the injury suffered by the victim must have been fatal or severe"; (2) "the victim and the plaintiff must be related as spouses, parent-child, grandparent-grandchild or siblings"; and (3) "the plaintiff must have observed an extraordinary event, namely the incident and injury or the scene soon after the incident with the injured victim at the scene." Id. at 633.
¶ 88. In bystander cases, a court rules on these factors on a case-by-case basis. The parties dispute *51whether the instant case satisfies the third factor. I conclude, as did the circuit court, that it does.
¶ 89. In Finnegan, 263 Wis. 2d 574, ¶ 54, the majority declared that the "hallmark of negligent infliction of emotional distress is a contemporaneous or nearly contemporaneous sensory perception of a sudden, traumatic, injury-producing event." Gregory Phelps arrived on the scene soon after Lindemann's negligence became causal of Adam's injuries. Phelps witnessed the spontaneous delivery of Adam. He witnessed the injuries and death of his son. I conclude that Phelps had a first-hand observation of the traumatic, injury-producing event.
¶ 90. For the reasons set forth above, I respectfully dissent.
¶ 91. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.See, e.g., State v. Williams, 2002 WI 1, ¶ 34—35, 249 Wis. 2d 492, 637 N.W.2d 733 (interpreting a prosecutor's comments at a sentencing hearing independently of the circuit court because the circuit court did not "base its interpretation of the prosecutor's comments on its recollection of the sentencing hearing, which would have included memories of voice inflections, observed facial expressions, and pauses in the testimony," but rather "interpreted the prosecutor's comments by reading the written record of the plea and sentencing hearings"); Lambrecht v. Kaczmarczyk, 2001 WI 25, ¶ 27, 241 Wis. 2d 804, 623 N.W.2d 751 ("This court and the circuit court are equally able to read the written record."); Cohn v. Town of Randall, 2001 WI App 176, ¶ 7, 247 Wis. 2d 118, 633 N.W.2d 674 ('We are in just as good a position as the trial court to make factual inferences based on documentary evidence and we need not defer to the trial court's findings."); Racine Educ. Ass'n v. Bd. Educ., 145 Wis. 2d 518, 521, 427 N.W.2d 414 (Ct. App. 1988) ("When the evidence to be considered is documentary, as it is *45here, we need not give any special deference to the trial court's findings. Our review becomes de novo."); Pfeifer v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 571 n.1, 360 N.W.2d 65 (Ct. App. 1984); (explaining that when evidence is documentary, a reviewing court is not bound by inferences drawn by the fact finder); State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977) ("[W]hen the evidence to be considered is documentary, a reviewing court is not bound by any inferences that may have been drawn by the factfinder and, therefore, need not afford a trial court's findings any special deference."); Vogt, Inc. v. Int'l Bhd. Teamsters, 270 Wis. 315, 71 N.W.2d 359 (1955), on reargument, 270 Wis. 321b, 321i, 74 N.W.2d 749 (1956) ("[The reason for the clearly erroneous standard is that the] appellate court must give weight to the findings of a trial court made in a contested matter upon oral testimony where the trial judge is in a position to pass on the credibility of the witnesses and the weight to be given to their testimony. He has full opportunity to observe the demeanor of the witnesses and judge their veracity — the appellate court does not. The reason for the rule disappears, however, when the appeal is presented upon no more than pleadings and affidavits, as is the case here.").
The majority asserts that the law is in conflict regarding the standard for reviewing a circuit court's factual findings and inferences based on a documentary record. See majoriiy op., ¶ 38 n.10. It contends that Pfeifer, a court of appeals decision, demonstrates this conflict. Pfeifer does not support the majority's position. It cited Golz with approval and rejected the clearly erroneous standard applied by the majority today. See 121 Wis. 2d at 570, 571 n.1.
For instance, the parties agree that there was a written employment agreement between MCWAH and Dr. Lindemann; that Dr. Lindemann never signed an employment agreement with St. Joseph's; that he received a paycheck and W-2 form from MCWAH; that St. Joseph's reimbursed MCWAH for the salary it paid to its residents; and that Dr. Lindemann was supervised and evaluated by program directors, who are officers of MCWAH. The essence of the dispute is whether these facts establish that St. Joseph had the right of control over Dr. Lindemann.
Seaman Body Corp. v. Indus. Comm'n of Wisconsin, 204 Wis. 157, 235 N.W. 433 (1931).
See majority op., ¶ 44 (deferring to the circuit court's "finding" that Lindemann consented to work for St. Joseph's); id., ¶ 46 (deferring to the circuit court's "finding" that Lindemann was doing the work of St. Joseph's); id., ¶ 51 (deferring to *47the circuit court's "finding... that St. Joseph's controlled the details of Lindemann's work"); id., ¶ 56 (deferring to the circuit court's "finding" that Lindemann's work was performed for St. Joseph's primary benefit).
Finnegan v. Wisconsin Patients Comp. Fund, 2003 WI 98, ¶¶ 43-50, 263 Wis. 2d 574, 666 N.W.2d 797.
Id., ¶¶ 64-74.