¶ 40. (concurring). I conclude that if a parent's claim of negligent infliction of emotional distress resulting from medical malpractice in treating his or her child is an independent cause of action, the claim can be brought outside chapter 655.
¶ 41. Nevertheless, I conclude that the "bystander claim"1 urged by the parent in this case cannot proceed because it does not fall within the requirements of *597Bowen v. Lumbermen's Mutual Casualty Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994).2
¶ 42. I would therefore reverse the order of the Circuit Court for Manitowoc County.
¶ 43. Justice Sykes's lead opinion concludes that chapter 655 constitutes the exclusive procedure and remedy for medical malpractice in Wisconsin, and that a parent's claim against a health care provider for negligent infliction of emotional distress resulting from medical malpractice in treating his or her child must be dismissed because the claim does not fall within the list of claims covered by chapter 655, specified in Wis. Stat. §§ 655.005(1)3 and 655.007.4
¶ 44. The lead opinion reasons that a parent's claim of negligent infliction of emotional distress resulting from medical malpractice in the treatment of his or her child is not covered by chapter 655 as follows: (1) a parent's claim is not for medical malpractice and is *598independent of his or her child's claim, that is, it is not a derivative suit;5 (2) chapter 655 explicitly states that *599it applies only to patients or patients' representatives *600having a malpractice claim and to specified persons having a derivative claim for death on account of malpractice; and (3) in the present case, the parent suing for negligent infliction of emotional distress (rather than for injury to the child) is not a patient, is not a patient's representative, and is not suing on a derivative claim on account of malpractice.6
¶ 45. Taking the lead opinion at its word, I fail to understand how it can then conclude that a parent's negligent infliction of emotional distress claim is "impermissible" under chapter 655. The only explanation I can come up with for its conclusion is that it assumes that the legislature intended to sweep away all claims having a connection with medical malpractice unless the claim is specifically included in the scope of chapter 655.
¶ 46. To the contrary, however, several of our cases hold that chapter 655 does not govern every claim having a connection with medical malpractice. Claims having a connection with medical malpractice can be brought outside chapter 655.
¶ 47. For example, in Johnson v. Rogers Memorial Hospital, Inc., 2001 WI 68, 244 Wis. 2d 364, 627 N.W.2d 890, this court held that parents may sue their child's therapists for negligent infliction of emotional distress resulting from malpractice in treating the child. The therapists argued that the claims were barred because they did not fall within the scope of chapter 655, but *601this court allowed the claims "to move forward outside the realm of chapter 655" because "chapter 655 is not the exclusive remedy for such claims . . . ."7
¶ 48. In another case, McEvoy v. Group Health Cooperative of Eau Claire, 213 Wis. 2d 507, 570 N.W.2d 397 (1997), the court allowed a suit for the tort of bad faith against a health maintenance organization, refusing to accept the organization's argument that it could not be sued because the suit was subject to chapter 655. The court concluded, "[T]he legislature did not intend [in chapter 655] to go beyond regulating claims for medical malpractice," defining medical malpractice as "professional misconduct or unreasonable lack of skill."8
¶ 49. In still another case, Northwest General Hospital v. Yee, 115 Wis. 2d 59, 339 N.W.2d 583 (1983), the court refused to read chapter 655 as governing all claims involving medical malpractice against a health care provider, allowing a patient to assert the defense of medical malpractice in a health care provider's suit for payment for services rendered. The health care provider argued that the patient was asserting a claim for malpractice but not for bodily injury, and that the claim was not within the scope of chapter 655 and was thus prohibited. Examining the words of the statute and the legislative purpose, the court concluded that if the malpractice claim was not a claim for bodily injury, it *602did not fall within chapter 655 and therefore was not barred. According to the court, contract law would apply regardless of chapter 655.
¶ 50. That the parent's claim for negligent infliction of emotional distress falls outside of chapter 655 does not mean that the claim is barred. Rather, it means that the claim may be a valid tort claim outside chapter 655. Thus, the proper conclusion for the lead opinion to reach (assuming that the claim is independent) is that chapter 655 does not govern a parent's claim for negligent infliction of emotional distress from a health care provider's negligent infliction of physical harm on a third person.
II
¶ 51. Assuming arguendo that a parent's claim for negligent infliction of emotional distress resulting from medical malpractice is not barred by chapter 655, I conclude that summary judgment for the defendant was appropriate here. This case is a bystander case, unlike the court's other cases described above concerning a third party's claims for negligent infliction of emotional distress involving medical malpractice. The leading case on a tortfeasor's liability to a bystander is Bowen v. Lumbermen's Mutual Casualty Co., a case not involving medical malpractice.
¶ 52. 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) that "the injury suffered by the victim must have been fatal or severe"; (2) that "the victim and the plaintiff must be related as spouses, parent-child, grandparent-grandchild or siblings"; and *603(3) that "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."9 In bystander cases, a court rules on these factors on a case-by-case basis.10
¶ 53. The parties dispute whether the case at bar satisfies the third factor. I conclude that the claim in the present case does not fit within the third factor.
¶ 54. The parent's experiences were horrific. The mother witnessed a prolonged and unsuccessful attempt to save their baby's life. In the context of Bowen, however, the compensable serious emotional distress of a bystander is not measured by the acute emotional distress of the loss of a family member. Rather, the damages arise from the bystander's observation of an extraordinary event. The hallmark of negligent infliction of emotional distress is a contemporaneous or nearly contemporaneous sensory perception of a sudden, traumatic, injury-producing event. "Witnessing either an incident causing death or serious injury or the gruesome aftermath of such an event minutes after it occurs is an extraordinary experience . . . ."11
¶ 55. In the present case, as in many cases, the failure to make the proper medical diagnosis is not an event that itself is perceived by a family member. To extend Bowen to an injury caused by an improper diagnosis when the plaintiff observes the suffering of the victim and not the event that causes that suffering conflicts with the historical foundations for negligent infliction of emotional distress and would be a significant broadening of the Bowen rule.
*604¶ 56. For the reasons set forth, I would reverse the order of the Circuit Court for Manitowoc County.
¶ 57. I am authorized to state that Justices JON E WILCOX, ANN WALSH BRADLEY, DAVID T. PROSSER, JR., and DIANE S. SYKES join Part II of this opinion.
"Bystander claim" refers to the claim of a plaintiff who alleges emotional distress arising from a tortfeasor's negligent infliction of physical harm on a third person. Bowen v. Lumbermen's Mut. Cas. Co., 183 Wis. 2d 627, 632, 517 N.W.2d 432 (1994).
Justices Wilcox, Bradley, Prosser, and Sykes join this sentence and Part II of the opinion. Part II is the majority opinion.
Wisconsin Stat. § 655.005(1) provides:
Any person listed in s. 655.007 having a claim or a derivative claim against a health care provider or an employee of the health care provider, for damages for bodily injury or death due to acts or omissions of the employee of the health care provider acting within the scope of his or her employment and providing health care services, is subject to this chapter.
Wisconsin Stat. § 655.007 provides:
On and after July 24, 1975, any patient or the patient's representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter.
The lead opinion's conclusion that a parent's claim for negligent infliction of emotional distress is an independent, not derivative, claim is suspect. The court of appeals has held that an adult child's suit against a health care provider for negligent infliction of emotional distress arising from medical malpractice in the care of a parent was not within Wis. Stat. § 655.007. See Ziulkowski v. Nierengarten, 210 Wis. 2d 98, 104-06, 565 N.W.2d 164 (Ct. App. 1997). The adult child plaintiff was barred from bringing suit in Ziulkowski because derivative claims were held to be limited to minor children under chapter 655. Id. The implication is that a suit for negligent infliction of emotional distress is a derivative suit.
But see Kosieradzki v. Mathys, 2002 WI App 191, ¶ 10, 256 Wis. 2d 839, 649 N.W.2d 717 (concluding that under Bowen, "emotional distress claims are independent, not derivative"). The lead opinion at ¶ 27 cites to and quotes from Bowen, but Bowen does not address or decide the question whether the claim for emotional distress is independent or derivative.
The lead opinion attempts to distinguish a claim for loss of society (which the lead opinion characterizes as derivative) from a claim for negligent infliction of emotional distress (which the lead opinion characterizes as independent) to support its suspect conclusion. The distinction between derivative and independent actions is, however, neither crystal clear nor absolute. Indeed the distinction appears to depend on the purpose for which the distinction is being made; the characterization depends on whether the court is addressing, for example, contributory negligence, limits on amount of recovery, or statutes of limitations. See, e.g., Korth v. Am. Family Ins. Co., 115 Wis. 2d 326, 340 N.W.2d 494 (1983):
The minor's cause of action for physical injury and the parents' causes of action for the invasion of the parents' interests are separate in the sense that each is predicated upon the invasion of different interests of different persons. The parents' claims are derivative, however, in the sense that they arise from the same tortious act that inflicted injury upon the child.... labels are not *599helpful in deciding the particular questions that come before the court. The preferred approach is to examine the legal context in which the question . . . arises ....
id. at 331; Peeples v. Sargent, 77 Wis. 2d 612, 253 N.W.2d 459 (1977):
The cause of action for consortium occasioned by an injury to one marriage partner is a separate cause of action belonging to the spouse of the injured marriage partner. A wife's loss of consortium' is derivative "in the sense it arose out of or was occasioned by an injury to her husband." However, loss of consortium is a direct injury to the spouse who has lost the consortium.
id. at 643 (citations omitted); White v. Lunder, 66 Wis. 2d 563, 225 N.W.2d 442 (1975):
[Tjhat the question of whether a spouse's cause of action for loss of consortium arising in personal injury actions is derivative is not clearly settled and the cases are confusing.
We deem it appropriate to declare, for the purpose of applying our comparative negligence statute, that both the causes of action for medical expenses and loss of consortium shall be deemed derivative.
To declare both of these causes of action derivative might not be entirely logical....
id: at 574; Schwartz v. Milwaukee, 54 Wis. 2d 286, 195 N.W.2d 480 (1972):
[T]he wife's action [for loss of consortium] was derivative only in the sense it arose out of or was occasioned by an injury to her husband. This is not the usual meaning of the word "derivative" and it might be more accurate to say a wife's damage was dependent upon the husband's injury and her cause of action must include the common factor of the accident and injury to her husband.
id. at 293; Lord v. Hubbell, 210 Wis. 2d 150, 168, 563 N.W.2d 913 (Ct. App. 1997) ("we are mindful that we are to look beyond the labels of'derivative' and 'separate' claims").
This claim is not a medical malpractice claim per se because a medical malpractice claim arises when there is a physician-patient relationship. Ande v. Rock, 2002 WI App 136, ¶ 10, 256 Wis. 2d 365, 647 N.W.2d 265. In the present case, a physician-patient relationship does not exist between the complaining parent and the doctor. The child was the physician's patient.
Johnson v. Rogers Mem'l Hosp., Inc., 2001 WI 68, ¶¶ 17, 20, 244 Wis. 2d 364, 627 N.W.2d 890. The Johnson court cited Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999), as another case allowing third party claims for negligent infliction of emotional distress in the medical malpractice arena. In Sawyer the allegation was that the child's false accusations of the parent's sex abuse caused harm to the parent.
McEvoy v. Group Health Coop. of Eau Claire, 213 Wis. 2d 507, 527-30, 570 N.W.2d 397 (1997).
Bowen, 183 Wis. 2d at 633.
Id. at 660.
Id. at 658.