¶ 67. {concurring in part, dissenting in part). Practically speaking, medical residents "provide health care." Yet the majority concludes that medical residents are not "health care providers" *107by applying a strict interpretation of the definitions in Wis. Stat. ch. 655 to the term "health care provider" in Wis. Stat. § 893.55(4)(b).
¶ 68. However "anomalous" this determination might be,1 it would be tolerable if the majority simultaneously recognized that the legislature has for years extended the coverage of chapter 655 and Wis. Stat. § 893.55(4)(c) and (f) to an "employee of a health care provider," see Wis. Stat. §§ 655.005, 655.017, and 893.55(4)(b),2 and that Dr. Matthew Lindemann was indisputably an "employee" of some health care provider whose status would trigger his coverage under the relevant statute. Instead, the majority ducks the issue. The majority remands to the circuit court the question whether Dr. Lindemann was a "borrowed employee" of St. Joseph's Hospital, majority op., ¶ 4, ignoring the fact that the circuit court has implicitly made two previous findings that Dr. Lindemann was not such an employee.3 The majority's remand, without a word of criticism or guidance, is a tacit approval of those two findings, which means that the circuit court is likely to reinstate its two prior determinations.
¶ 69. The conclusion that a medical resident rendering medical care to a hospital's patients within the scope of the resident's duties is not an "employee" of the hospital or any other applicable "health care provider," and thus is not covered by chapter 655 or the Patients *108Compensation Fund, is more than "anomalous." It defies common sense.
¶ 70. Although I agree with some parts of the majority opinion — such as the applicable standard of care and the health care services review privilege — I write separately largely to discuss points of disagreement.
¶ 71. My concurrence/dissent is divided into three parts. In part I, I reluctantly join the majority's conclusion that the circuit court did not erroneously exercise its discretion in ruling that the defendants waived the right to a jury trial because they did not pay the jury fee on time under the local rule. In this connection, I address two important subtopics: (A) The lack of uniformity among local rules on jury fee payment, and (B) The circuit court's obfuscation of the applicable standard of care, which would not have been permitted if there had been a jury trial. In part II, I dissent from the majority's decision that the damage caps in Wis. Stat. § 893.55(4) do not apply to medical residents. In part III, I comment on the circuit court's award of damages to Gregory Phelps for negligent infliction of emotional distress, in light of this court's recent decision in Pierce v. Physicians Insurance Co., 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558.
HH
¶ 72. I reluctantly agree with the majority's conclusion that the circuit judge did not erroneously exercise his discretion in holding that the defendants waived their statutory right to a jury trial. Because the circuit court did not employ the proper standard of "excusable neglect," this court's decision must rest entirely on the facts in the record, and specifically the fact *109that the defendant, more than 15 months before trial, paid the jury fee 11 days late. The defendants did not comply with the applicable Milwaukee County Circuit Court rule regarding payment of the jury fee and, as a consequence, they did not get a jury. See majority op., ¶¶ 34-35. Our affirmance of the court's ruling sets an extremely high bar to reverse excusable neglect determinations in future cases. Nonetheless, I would affirm and take this opportunity to discuss the disparity among local rules governing the payment of jury fees.
A. Local Rules
¶ 73. Wisconsin Stat. § 805.01 preserves the right to a jury trial in civil cases, so long as the right is not waived. The statute makes no mention of the timing of payment of jury fees. Accordingly, that detail is left to local rules.
¶ 74. A circuit court has the authority to "adopt and amend rules governing practice in that court," so long as the rules are "consistent with rules adopted under s. 751.12[4] and statutes relating to pleading, practice, and procedure." Wis. Stat. § 753.35.5 Most Wisconsin counties have adopted such rules; eleven have not.6 The local rule at issue in this case, Milwau*110kee County Circuit Court Local Rule 371, was presumably adopted pursuant to this authority.
¶ 75. A circuit court has wide discretion in enforcing local rules. Kustelski v. Taylor, 2003 WI App 194, ¶ 15, 266 Wis. 2d 940, 669 N.W.2d 780 (citing Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 447, 531 N.W.2d 606 (Ct. App. 1995)). However, this discretion is not unlimited. The local rule may not conflict with a state statute. Geneva Nat'l Cmty. Assoc., Inc. v. Friedman, 228 Wis. 2d 572, 586-87 n.8, 598 N.W.2d 600 (Ct. App. 1999) (citing Cmty. Newspapers, Inc. v. City of West Allis, 158 Wis. 2d 28, 32-33, 461 N.W.2d 785 (Ct. App. 1990)). Similarly, the local rule may not conflict with the uniform judicial administrative rules promulgated by the supreme court. SCR 70.34 (1978). In some cases, local rules may even be preempted by common law doctrines. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 36, 563 N.W.2d 460 (1997) (citing Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962)).
¶ 76. Amid this array of authority, practitioners must remain cognizant of the occasionally significant variation between one county's local rules and another's. For example, in Milwaukee, as we have seen in this case, the jury fee must be paid within 30 days after the scheduling conference. Milwaukee Cty. Ct. R. 371. By contrast, in Sheboygan County, the jury fee must be paid at or before the scheduling conference. Sheboygan Cty. Ct. R. 206. In Waukesha County, the fee must be paid at or before the pre-trial conference. Waukesha Cty. Ct. R. 6.1. In Marinette County, the jury fee is payable at or before the scheduling or pre-trial conference, whichever comes first. Marinette Cty. Ct. R. *111207. Many other local rules do not reference any timetable for payment of the jury fee, apparently leaving such decisions entirely up to the discretion of individual circuit judges.
¶ 77. When numerous circuit courts create local rules to augment a statewide rule, it is nearly inevitable that the local rules will conflict, with each other. For example, prior to 1992, Wis. Stat. § 802.08(2) ("Summary judgment") read in part: "The [summary judgment] motion shall be served at least 20 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits." In practice, this rule proved to be unfair because the nonmovant could serve opposing affidavits the day before the hearing, giving minimal notice and opportunity for the court and the movant to prepare. Because of this, "a plethora of local court rules resulted." Judicial Council Note, 1992, § 802.08, Stats, (citing Cmty. Newspapers, 158 Wis. 2d [at 32 n.3]). To provide a statewide remedy, this court acted by amending the rule to its current form: "Unless earlier times are specified in the scheduling order, the [summary judgment] motion shall he served at least 20 days before the time fixed for the hearing, and the adverse party shall serve opposing affidavits, if any, at least 5 days before the time fixed for the hearing." Wis. Stat. § 802.08(2)7 The court made the change to "preclude such local rules and promote uniformity of practice." Judicial Council Note, 1992, § 802.08, Stats.
¶ 78. In my view, similar action is warranted here. Although the exact time set for payment of the jury fee may not be important, some reasonable "uniformity of *112practice" is. The court should consider a uniform rule to avoid allowing local rules governing payment of the jury fee to become a snare, trapping unwary litigants and depriving them of the right to a jury trial.
¶ 79. In this case, the jury trial fee was paid 11 days late but more than 15 months before trial. Although such minimal delay did not appear to prejudice any party's preparation for trial, the circuit court chose not to retroactively extend the time for filing. Appellate courts will normally uphold the circuit court's ruling in the enforcement of local rules. See Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶ 31, 275 Wis. 2d 1, 683 N.W.2d 58. I reluctantly concur in the majority's decision to do so in this case.
B. Standard of Care
¶ 80. In any negligence case, the plaintiff must prove that the defendant breached a duty of care to the plaintiff. See, e.g., Morden v. Cont'l AG, 2000 WI 51, ¶ 45, 235 Wis. 2d 325, 611 N.W.2d 659. In a medical malpractice case, the plaintiff must provide expert testimony to establish the defendant's breach of the appropriate standard. Olfe v. Gordon, 93 Wis. 2d 173, 180, 286 N.W.2d 573 (1980).8
*113¶ 81. The circuit court's pretrial ruling in this case appeared to obviate the need for proof as to the applicable standard of care. In a letter to counsel for both sides, Judge Sullivan stated: "During [the time in question, Dr. Lindemann] assumed the mantle of a physician treating an obstetrical patient. Therefore, that must be the standard to which he is held." However, in the circuit court's "Conclusions of Law," Judge Sullivan wrote "the defendant, Dr. Matthew Lindemann was negligent in his care and treatment of Marlene Phelps and Adam Phelps under both the standard of care applicable to a first year resident and the standard of care determined to be applicable by this court in its decision dated November 27, 2002."
¶ 82. In a holding I fully join, the majority determines that the circuit court's initial decision was incorrect. Majority op., ¶¶ 43-47. Instead of adopting a "treating physician" standard, the circuit court should have used the standard of care applicable to an unlicensed first-year resident. Id., ¶ 43. The majority opinion focuses on affirming the circuit court's findings that show "the ways in which Dr. Lindemann violated both standards of care." Majority op., ¶ 46. It reinforces the court's action with the conelusory comment that "To the extent the circuit court erred in applying the standard of care applicable to an average physician treating an obstetrical patient, we deem that error harmless." Majority op., ¶ 46 n.13.
¶ 83. I strongly disagree. The majority relies on the circuit court's post-hoc rationalization that Linde-mann was negligent under either standard of care. It ignores the fact that the conduct of the trial would have *114been different if the circuit court's original ruling had favored the standard of care applicable to an unlicensed first-year resident — the same standard the majority now recognizes as the proper one — instead of the standard applicable to an average physician treating an obstetrical patient.
¶ 84. The following examples illustrate the point. Dr. Dennis Worthington was one of Lindemann's supervisors in the obstetrics department at St. Joseph's. During his testimony at trial on December 5, 2002, Dr. Worthington had the following exchange with the plaintiffs' counsel:
Q: ... [D]id you reach a conclusion on whether or not Dr. Lindemann failed to meet the standard of care required of him at St. Joseph's Hospital?
A: Yeah — I'm not sure that there is a definitive standard of care for — for interns that is — in terms of standard of care it—
At that point, the plaintiffs' counsel cut off the answer, saying "Doctor, maybe I can help you. The court has set what the standard is — ." Defense counsel objected, asking that Dr. Worthington be allowed to answer the original question without clarification. The court refused, and allowed plaintiffs' counsel to "paraphrase" the question as follows:
Q: Doctor, I'm going to read you this definition of medical negligence as decided by this court and ask you to accept this as the definition of negligence that applies to Dr. Lindemann. "In treating and diagnosing Marlene Phelps' condition, Dr. Matthew Lindemann was required to use the degree of care, skill and judgment which reasonable physicians who treat obstetrical patients would exercise in the same or similar circumstances having due regard for the state of medi*115cal science at the time the plaintiff was treated and diagnosed. A doctor who fails to conform to this standard is negligent." ...
¶ 85. Perhaps realizing the problem, the circuit court took a different approach during the testimony of the plaintiffs' expert, Dr. David Acker, on December 10, 2002. After Acker testified that he believed Lindemann violated "the standard of care," the circuit judge intervened:
THE COURT: Now, let me ask you this question. Assuming — Let's assume the standard were different and the standard was that of a first year resident. What would your position be?
THE WITNESS: It's the same because [Lindemann was] not looking for the right diagnosis.
THE COURT: Sure.
THE WITNESS: I'm — everything that I've tried to describe—
THE COURT: [Lindemann] just needed to do something else.
THE WITNESS: That's it. You don't have to know what this is to do something else. And in fact, he knew what it was, pain not related to labor.
THE COURT: Sure.
¶ 86. As the trial advanced, the parties' understanding of the standard of care issue evolved, as evidenced by the following exchange during the direct examination of defense expert Dr. Frederik Broekhui-zen:
Q: Doctor, by way of an offer of proof if the court believes this is an inappropriate question, based upon *116your experience, would you expect a first-year resident, an intern, to meet the standard of care of an attending [physician]?
[PLAINTIFFS' ATTORNEY]: ... I want to make sure that that is what is understood here. This is an offer of proof.
THE COURT: I will allow it as an offer of proof. I made the ruling in the case and that I'll have to live with, and there's been a lot of testimony here so far what a first-year resident ought to be doing even from the plaintiffs' witnesses. So to a certain degree, let's hear what he has to say.
Q: Doctor, assuming the standard of care applicable to Dr. Lindemann was that of a first-year resident in his second obstetric rotation, do you believe Dr. Linde-mann met that standard of care in his care and treatment of Mrs. Phelps on the morning of 11/24/98?
A: I think he did. (Emphasis added.)
¶ 87. The above excerpts reveal the shifting sands that developed at trial, with the parties at different times proceeding under three different approaches as to the applicable standard of care: 1) the treating physician standard (Dr. Worthington's testimony); 2) the first-year resident standard (Dr. Broekhuizen's testimony); 3) both standards (Dr. Acker's testimony). At times, the court took over questioning the expert witnesses.
¶ 88. This uncertainty permeated the conduct of the trial. Therefore, I do not agree that the circuit court's error was harmless because the defendant was *117not permitted to make a sustained case on what this court now deems the applicable standard of care. Because no jury was present, the court did not have to grapple with instructions forthrightly stating its view of the law.
¶ 89. Moreover, we cannot know how application of the correct standard would have altered the court's apportionment of damages. The court decided that Dr. Lindemann was 80 percent responsible and St. Joseph's was 20 percent responsible for the incident. Had the circuit court proceeded under the appropriate standard of care, it might have decided that St. Joseph's had a higher degree of culpability given its responsibility to supervise Dr. Lindemann. The degree of supervision expected of a hospital in its relationship with an unlicensed first-year resident is likely quite different from the degree of supervision expected of the same hospital in its relationship with an experienced physician.
¶ 90. In a trial to the court, all the participants should understand the rules of engagement. See State v. Watkins, 2002 WI 101, ¶ 81, 255 Wis. 2d 265, 647 N.W.2d 244.9 In the absence of a jury, the circuit court must provide a "clear analysis of its thinking on the *118legal issues" in the case. Id. Because the court did not do so in this case, the parties deserve another trial at which the applicable standard of care is clear.
II
¶ 91. The majority concludes that Dr. Lindemann is not a health care provider, is not covered by chapter 655, is not covered by the Patients Compensation Fund, and is not subject to the medical malpractice damage caps. In so holding, the majority accepts the plaintiffs contention that "the noneconomic damage cap in § 655.017, as implemented through § 893.55(4), does not apply to a first-year unlicensed medical resident who is not covered by Chapter 655." I do not dispute that residents are not "health care providers" under a stringent interpretation of Wis. Stat. § 655.002. However, unlike the majority, I would hold that the circuit court's two rulings that Lindemann was not St. Joseph's "employee" were clearly erroneous findings of fact. Based on the facts in the record, I would hold that Lindemann was St. Joseph's "employee" as a matter of law.
¶ 92. Alternatively, to the extent that the circuit court's rulings could be considered discretionary decisions applying the facts of this case to the appropriate legal standard, I would hold that the two rulings were erroneous exercises of discretion because they reflect a complete absence of discretionary decision-making. See Hess v. Fernandez, 2005 WI 19, ¶ 12, 278 Wis. 2d 283, 692 N.W.2d 655 ("A court misused its discretion if the court failed to exercise its discretion, the facts do not support the court's decision, or the court applied the wrong legal standard.").
*119¶ 93. Prior to discussing the circuit court's determinations, it is essential to review the peculiar employment status of medical residents.
¶ 94. The employment status of medical residents is somewhat unusual. For purposes of analysis, the Medical College of Wisconsin (MCW) presently offers 83 residency and fellowship programs.10 The doctors serving in these programs did not necessarily attend medical school at MCW; graduates of any medical school may apply for an MCW residency position.11 Residents selected for one of these programs generally rotate through two or three of the Medical College's 14 affiliated hospitals.12 For instance, in the Obstetrics & Gynecology program, residents rotate through three institutions: Froedtert Hospital, St. Joseph's Hospital, and Columbia-St. Mary's Hospital.13
¶ 95. To simplify the administration of these programs, the 14 affiliated hospitals formed The Medical College of Wisconsin Affiliated Hospitals (MCWAH), a nonprofit, charitable corporation exempt from federal income tax under § 501(c)(3) of the Internal Revenue Code. MCWAH's Executive Director, Dr. Mahendr Ko-char, testified about MCWAH's nature and function. MCW provides funding to MCWAH for administrative and clerical services. The residents selected to serve at *120the 14 affiliated hospitals sign contracts with MCWAH,14 and each of the affiliated hospitals contributes to MCWAH in order to fund the residents' salaries and benefits. In effect, "MCWAH simply takes funds provided by hospitals to pay the resident, deposits it into an account, and then issues a check to the resident." Dr. Kochar testified that MCWAH had no
control of the residents at the various hospitals where they are placed. This is pursuant to agreements with the hospitals and in keeping with the original intent of the creation of MCWAH in 1980. MCWAH is, in essence a conduit to facilitate payments, and has no supervisory or control role over the residents.
The circuit court agreed when it granted partial summary judgment dismissing MCWAH from the case: "MCWAH did not control the performance of Dr. Lindemann's duties as a resident physician."
¶ 96. Having briefly delineated the general employment status of medical residents in the MCW program, I turn to the question of the applicability of chapter 655 and the medical malpractice damage caps to Dr. Lindemann. The majority opinion adopts the part of the court of appeals' decision remanding the cause "for a determination of whether Dr. Lindemann was a 'borrowed employee' of St. Joseph's Hospital and therefore entitled to the cap protection as an 'employee' of a health care provider under Wis. Stat. § 893.55(4)(b)." Majority op., ¶ 4. Both the majority and the court of appeals ignore the fact that the circuit court has already ruled on this issue twice. Both times, the circuit court determined that Dr. Lindemann was not an employee, and therefore not covered by the damage caps.
*121¶ 97. This issue arose for the first time as a result of the plaintiffs' motion for declaratory judgment as to the applicability of chapter 655 to the case. The defendants, in a brief opposing the plaintiffs' motion, argued that chapter 655 applied because Lindemann was a "de facto employee or agent of a hospital or a borrowed employee of the attending physician.... " See Wis. Stat. § 655.005.15 The defendants' argument on this point was nearly six pages in length, extensively discussing the applicable legal standards. The circuit court summarily dismissed these arguments in a decision letter. The court simply stated that it was "not persuaded that defendant Lindemann is entitled to the protection of Chapter 655 of the statutes ...." The court relied on the fact that Lindemann was not a "physician" as that term is defined in chapter 655; the decision letter never mentioned the defendants' argument that Lindemann was an "employee" of a health care provider, and therefore covered by chapter 655.
¶ 98. The defendants brought a motion for reconsideration, and again briefed and argued the "employee" issue to the court. In a one-sentence response to these arguments, the circuit court wrote, "Defendants' motion to reconsider the court's July 18, 2000 decision holding that Chapter 655 does not apply in this case is denied."
¶ 99. The court of appeals has held that whether MCWAH residents are employees of the hospitals at which they serve is a "factual issue." Estate of Hegarty v. *122Beauchaine, 2001 WI App 300, ¶ 77, 249 Wis. 2d 142, 638 N.W.2d 355. As such, "[t]he trier of fact must determine whether [MCWAH] intended to relinquish control to the hospital, the attending physician, or someone else." Id., ¶ 76.
¶ 100. We defer to the circuit court's findings of fact unless they are "clearly erroneous." See, e.g., Schreiber v. Physicians Ins. Co. of Wis., 223 Wis. 2d 417, 426, 588 N.W.2d 26 (1999). However, the application of facts to a legal standard is a question of law subject to de novo review. State v. Wills, 193 Wis. 2d 273, 277, 533 N.W.2d 165 (1995). If there is both a disputed question of fact and a disputed question of law, this court should "first review the facts under a clearly erroneous standard of review and then determine [the question of law] under a de novo standard of review ... ." Id. at 277-78. The circuit court was thus faced with a question of fact (whether MCWAH relinquished control of Lindemann to St. Joseph's) and a question of law (whether Linde-mann became St. Joseph's "borrowed employee").
¶ 101. In Hegarty, a lengthy, well-reasoned opinion, the court of appeals discussed precisely the same issue — namely, whether a resident directly employed by MCWAH is a "borrowed employee" of the hospital at which the resident serves at the time of the alleged malpractice. Hegarty, 249 Wis. 2d 142, ¶¶ 57-78. In that case, it was undisputed that residents associated with MCWAH are "employees" of MCWAH in the general sense, as the circuit court also found in this case.16 Id., ¶ 58.
¶ 102. As the Hegarty court recognized, the more difficult question is whether the residents are also "borrowed employees" of the hospitals at which they *123serve. The critical issue is who "controlled]" the residents' activities. Id., ¶ 61 (citing Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188, 199, 423 N.W.2d 848 (1988) ("The right to control is the dominant test in determining whether an individual is a servant.")). To answer this question, the court of appeals adopted a test we developed in Seaman Body Corp. v. Industrial Commission, 204 Wis. 157, 235 N.W. 433 (1931):
The relation of employer and employee exists as between a special employer to whom an employee is loaned whenever the following facts concur: (a) Consent on the part of the employee to work for a special employer; (b) Actual entry by the employee upon the work of and for the special employer pursuant to an express or implied contract so to do; (c) Power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.
Hegarty, 249 Wis.2d 142, ¶ 68 (citing Seaman, 204 Wis. at 163).
¶ 103. Under Seaman, there is a presumption that,
[i]n the absence of evidence to the contrary, ... the actor remains in his [or her] general employment so long as, by the service rendered another, he [or she] is performing the business entrusted to him [or her] by the general employer. There is no inference that because the general employer has permitted a division of control, [the employer] has surrendered it.
Id., ¶ 69 (citing Borneman v. Corwyn Transp., 212 Wis. 2d 25, 43-44, 567 N.W.2d 887 (Ct. App. 1997)). MCWAH therefore had to overcome this presumption with evidence that "it relinquished full control of its servant." Id., ¶¶ 70-71.
*124¶ 104. In Hegarty, the court of appeals determined that whether MCWAH had "relinquished full control" of the resident was a factual determination to be resolved by the circuit court. It therefore remanded to allow that court to answer the following two questions: "(1) at any time, was [the resident] a servant of [MCWAH], i.e., was she employed by [MCWAH] and was she subject to [MCWAH's] control or right to control; and, if so (2) did [MCWAH] loan [the resident] to another and surrender the right to control [the resident] to that other institution or person?" Id., ¶ 78. The circuit court should have asked — and answered — the same questions in this case in response to the plaintiffs' motion for declaratory judgment as to the applicability of chapter 655 and the defendants' subsequent motion for reconsideration.
¶ 105. Additionally, the circuit court could have considered the plaintiffs' pretrial brief in support of a motion for declaratory judgment, in which the plaintiffs convincingly argued that Lindemann "was an employee or actual agent of St. Joseph's." As the plaintiffs noted in that filing, the following facts are undisputed: (1) St. Joseph's fully reimbursed MCWAH for Lindemann's stipends, costs, expenses, and other benefits; (2) Linde-mann was required to comply with the policies and procedures of St. Joseph's; (3) Lindemann testified that St. Joseph's had the right to control his day-to-day activities at the hospital; and (4) St. Joseph's provided its residents with free meals, free parking, free laundry services, discounts in the cafeteria, use of the hospital's scrub outfits, use of a room to rest in, and funding for educational conferences.
¶ 106. This argument was consistent with the plaintiffs' earlier filings. In their original complaint, filed September 30, 1999, the plaintiffs named the Patients Compensation Fund as a defendant and alleged that the Fund
*125is a mandatory health care liability risk sharing plan created by Chapter 655 ... whose obligations and responsibilities include making payments in excess of underlying insurance limits on behalf of negligent health care providers in the State of Wisconsin, including ... any individual acting with real or apparent authority of St. Joseph's Hospital of Franciscan Sisters, Milwaukee, Inc. including, but not limited to, Matthew Lindemann, M.D....
(Emphasis added.)
¶ 107. The plaintiffs also indicated their intent to file a medical mediation request "pursuant to Chapter 655 of the Wisconsin Statutes ...." The plaintiffs reiterated the claim that Lindemann was an "agent, servant, and/or employee" of St. Joseph's no less than nine times in the complaint.
¶ 108. The plaintiffs filed an amended summons and complaint April 14, 2000. In the amended complaint, the plaintiffs named as additional defendants the Medical College of Wisconsin Affiliated Hospital (MCWAH), its insurer, Physicians Insurance Company of Wisconsin (PIC), and Lindemann, as an individual. The amended complaint alleged that chapter 655 did not apply to Lindemann, but continued to name the Fund as a defendant. While now alleging that "MCWAH was the employer of the defendant, Matthew Linde-mann, M.D.," the Phelpses repeatedly alleged that Lin-demann was an "agent, servant, and/or employee" of St. Joseph's, or alternatively an "individual over whom St. Joseph's had supervisory control and responsibility 'with respect to medical care provided to patients ...."
¶ 109. In a response to interrogatories dated May 31, 2000, MCWAH admitted both that "[MCWAH] was the employer of Matthew Lindemann on November 24, 1998" and that "St. Joseph's Hospital of Franciscan *126Sisters, Milwaukee, Inc. was the de facto employer of Matthew Lindemann on November 24, 1998." In a separate response, St. Joseph's admitted that MCWAH was Lindemann's employer, but denied that St. Joseph's was Lindemann's de facto employer.
¶ 110. In time, the circuit court recognized that, "MCWAH did not control the performance of Dr. Lindemann's duties as a resident physician." Accordingly, MCWAH could not be held liable under the doctrine of respondeat superior, and the circuit court granted its motion for summary judgment on November 14, 2000.
¶ 111. Given all these facts and both sides' arguments, it is hard to imagine how Lindemann does not qualify as St. Joseph's "employee." St. Joseph's self-serving argument that it was not Lindemann's de facto employer is difficult to square with the realities of the situation. The absence of a finding that Lindemann was St. Joseph's "employee" means that medical residents are effectively the only workers in a hospital not covered by the damage caps, despite the fact that as new doctors, they are perhaps most in need of the protections in chapter 655. The Legislature could not have intended such a restrictive definition of "employee" in this context.
¶ 112. I conclude that the circuit court's initial decision that chapter 655 did not apply, and its denial of the defendants' motion for reconsideration, effectively means that it found that Lindemann was not St. Joseph's employee. The decision therefore implicitly contained both a clearly erroneous finding of fact (that MCWAH did not relinquish control of Lindemann to St. Joseph's) and an incorrect conclusion of law (that Lindemann was not St. Joseph's "borrowed employee"). I would reverse the circuit court's decision on this issue, *127and hold as a matter of law that Lindemann is subject to chapter 655 because he is an "employee" of a health care provider, St. Joseph's Hospital. See Wis. Stat. §§ 655.005, 655.017, 893.55(4)(b).
¶ 113. Alternatively, to the extent the circuit court's rulings on this issue were discretionary decisions, they should also be reversed. In my view, the circuit court did not exercise any discretion at all. This court has often written that "discretion 'is not the equivalent of unfettered decision-making.'" Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶ 65, 253 Wis.2d 238, 646 N.W.2d 19 (citing Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981)). As we have explained,
"A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law." Hartung, 102 Wis. 2d at 66. In Howard v. Duersten, the court stated: "The trial court must undertake a reasonable inquiry and examination of the facts as the basis of its decision. The exercise of discretion must depend on facts that are of record or that are reasonably derived by inference from the record and the basis [of that] exercise of discretion should be set forth ." Howard v. Duersten, 81 Wis.2d 301, 305, 260 N.W.2d 274 (1977) (emphasis added). As the Hartung court put it, "[A] discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Hartung , 102 Wis.2d at 66 (emphasis added). In reviewing these discretionary determinations, an appellate court should not be expected to read the mind of the trial judge.
Split Rock Hardwoods, 253 Wis. 2d 238, ¶ 65.
*128¶ 114. The circuit court's conclusory rulings on this issue do not satisfy this test, and should be vacated. Upon remand, the circuit court should not simply rely on its prior rulings in this regard because those rulings reflect a complete absence of any exercise of discretion. Instead, on remand, the circuit court should apply the facts and arguments described above to determine whether Lindemann qualified for cap protection as a "borrowed employee" of St. Joseph's under the standards described above.
rH HH HH
¶ 115. Finally, I question whether the circuit court's award of $200,000 to Gregory Phelps, the father, for negligent infliction of emotional distress is warranted under our decision in Pierce. In that case, we allowed a mother of a stillborn to raise such a claim based on the mother's unique status as both "a participant, and a victim of the actionable conduct — medical malpractice — that gave rise to her claim." Pierce, 278 Wis. 2d 82, ¶¶ 13, 15.
¶ 116. The majority chooses not to address the impact of Pierce, because "such issues were not briefed or argued by the parties." Majority op., ¶ 21 n.6. It should be noted that by letter dated March 30, 2004, Dr. Lindemann asked the court of appeals to delay its decision, pending this court's resolution of Pierce and Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866. Phelps, 273 Wis. 2d 667, ¶ 50 n.11. The court declined to do so, but allowed that, "[although the Pierce decision may impact this case, its application vel non will depend on the facts adduced at the trial on remand." Id.
¶ 117. Because of this court's decision, there will be no trial on remand. However, Dr. Lindemann will be *129permitted to argue that he qualified as an employee of a health care provider, and therefore is entitled to the benefits of chapter 655. He should also be allowed to argue the Pierce issue, as the court of appeals envisioned.
¶ 118. If the circuit court's award to Gregory Phelps stands, it represents a dramatic expansion of the scope of delivery room "bystander" claims in Wisconsin. Gregory was not a "participant" in the medical malpractice, as was the plaintiff in Pierce. However, the issue involves questions of fact not briefed to us, perhaps because the parties believed that (pursuant to the court of appeals' opinion) they would have the opportunity to argue the issue on remand. I would allow both sides to do so.
¶ 119. For the foregoing reasons, I respectfully concur in part and dissent in part.
¶ 120. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this opinion.
Phelps v. Physicians Ins. Co., 2004 WI App 91, ¶ 47, 273 Wis. 2d 667, 681 N.W.2d 571.
All of the provisions of chapter 655, including the damage caps, apply to "employees" of health care providers. See Wis. Stat. § 655.005(1).
No one disputes that St. Joseph's Hospital is a health care provider.
"The state supreme court shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts, for the purposes of simplifying the same and of promoting the speedy determination of litigation upon its merits...." Wis. Stat. § 751.12(1).
See 185 Wis. 2d xv (1993) (Wisconsin Supreme Court Order creating Wis. Stat. § 753.35).
The following counties have no local rules: Columbia, Door, Douglas, Florence, Green Lake, Iron, Langlade, Oconto, Pierce, Polk, and Price. See Wisconsin circuit court rules by *110county, available at http://www.wisbar.org/AM/ Template.cfm? Section=Circuit_court_rules2 (last visited June 17, 2005).
See 168 Wis. 2d xxi (1992) (Wisconsin Supreme Court Order amending Wis. Stat. § (Rule) 802.08(2)).
The Olfe court said:
In medical malpractice actions, Wisconsin law generally requires the plaintiff to introduce expert testimony as to the standard of care and the defendant's departure from it. "Without such testimony the jury has no standard which enables it to determine whether the defendant failed to exercise the degree of care and skill required of him."
Olfe v. Gordon, 93 Wis. 2d 173, 180, 286 N.W.2d 573 (1980) (citing Froh v. Milwaukee Medical Clinic, S. C., 85 Wis. 2d 308, *113317, 270 N.W.2d 83 (Ct. App. 1978); Francois v. Mokrohisky, 67 Wis. 2d 196, 204, 226 N.W.2d 470 (1975)).
The Watkins court wrote in a criminal context, but the same fundamental principle applies here. We stated:
When a case is tried to a jury, all the players — judge, jury, prosecutor, defense attorney, and defendant — should understand the parameters of the jury verdict. The preparation of jury instructions forces the parties to clarify the issues on the record and identify what charges and defenses may be considered by the jury. When a case is tried to the court, the court may reach the same conclusion a jury would reach but fail to articulate the operative legal principles for its decision.
State v. Watkins, 2002 WI 101, ¶ 81, 255 Wis. 2d 265, 647 N.W.2d 244.
See http://www.mcw.edu/display/router.asp7docicN2422 (last visited June 17, 2005).
Lindemann was never a student at the Medical College of Wisconsin (MCW). After his graduation from the University of North Dakota School of Medicine, he earned a position in MCW's Obstetrics & Gynecology residency program.
See http://www.mcw.edu/display/router.asp7dockl~2422 (last visited June 17, 2005).
See http://www.mcw.edu/display/router.asp7dockN4010 (last visited June 17, 2005).
As do all residents, Dr. Lindemann signed a contract with MCWAH.
''Any person ... 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." Wis. Stat. § 655.005(1).
See Findings of Fact, #11.