La Crosse Lutheran Hospital v. La Crosse County

DYKMAN, J.

(dissenting.) I would begin my analysis of sec. 53.38, Stats., at the beginning of the statute. The first question to arise is whether Pazo-More was a prisoner. That question is answered by both case law and statute. Though the majority acknowledges that sec. 46.011(2), Stats., defines a prisoner as “any *339person who is ... arrested,” it does not explain why it rejects this definition. Nor does the majority discuss In Interest of C.D.M., 125 Wis.2d 170, 172, 370 N.W.2d 287, 288 (Ct. App. 1985), where we defined a prisoner as “one who is deprived of his liberty; one who is against his will kept in confinement or custody,” quoting State v. Brill, 1 Wis.2d 288, 291, 83 N.W.2d 721, 723 (1957).

Under both sec. 46.011(2), Stats., and C.D.M., the result is the same. Pazo-More was a prisoner. That conclusion, however, does not end the inquiry. The first sentence of sec. 53.38, Stats., requires the sheriff or jailkeeper to provide prisoners appropriate care or treatment. The legislature used the words “shall provide.” “Shall” is presumed mandatory unless it is necessary to construe the statute as directory to carry out the legislature’s intent. In Matter of E.B., 111 Wis.2d 175, 185, 330 N.W.2d 584, 589-90 (1983). Section 53.38 cannot reasonably be read to permit a sheriff to deny needed medical attention. Therefore, the first portion of the first sentence of sec. 53.38 requires the sheriff to provide medical care to Pazo-More.

After mandating that sheriffs or jailkeepers provide medical care to prisoners, the second portion of the first sentence of sec. 53.38, Stats., makes alternative provisions for obtaining the care. This is done by the use of the word “may.” When the words “shall” and “may” are used in the same section of a statute, we can infer that the legislature intended the words to have their precise meanings. Karow v. Milwaukee County Civil Serv. Comm., 82 Wis.2d 565, 571, 263 N.W.2d 214, 217 (1978).

The second portion of the first sentence of sec. 53.38, Stats., therefore gives the sheriff discretion as to how to provide medical care. This is a logical way to interpret the statute, for medical needs vary substan*340tially. It would make little sense to require the sheriff to transfer a prisoner to a hospital to obtain aspirin for a headache. The majority errs by ignoring the “may” in sec. 53.38, and by concluding that the statute refers only to prisoners who are transferred from jails to hospitals. This conclusion ignores the alternatives available to the sheriff — bringing a doctor or nurse to the jail, or providing minor items directly.

The second sentence of sec. 53.38, Stats., allocates the responsibility for paying the costs of medical and hospital care between the county and municipalities, where care is given outside of the jail. The majority does not explain how a sentence of a statute which allocates responsibility for a prisoner’s hospital bills denies a hospital the right to recover its bill. I would conclude that this language requires La Crosse County rather than the City of La Crosse to pay the hospital bill because Pazo-More was held under the state criminal law.

Under the majority’s construction of sec. 53.38, Stats., hospitals will demand that prisoners be taken to jail before admission, and doctors will not attend prisoners in the jail, because they will know they will be paid only if the prisoner is taken from jail to a clinic or hospital. This is an expensive, if not absurd, result and one not necessary if each sentence of sec. 53.38 is analyzed, and each sentence given its ordinary meaning.

Having concluded that Pazo-More was a prisoner, that the sheriff was required to provide hospital care to prisoners, and that La Crosse County was required to bear the costs of the care, I would affirm the trial court.