Barber v. Arnesen, 02-3339.

• Citation: 275 Wis.2d 275,683 NW 2d 93,2004 WI App 125
• Decision Date: 27 May 2004
• Docket Number: No. 02-3339.,02-3339.
• Parties: Kathrine I. Barber, Plaintiff-Appellant-Cross-Respondent, v. Anne Schmitz Arnesen, Personal Representative of the estate of Richard B. Arnesen, M.D., Defendant-Respondent-Cross-Appellant, WISCONSIN PATIENTS COMPENSATION FUND, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

683 NW 2d 93

275 Wis.2d 275

2004 WI App 125

Kathrine I. Barber, Plaintiff-Appellant-Cross-Respondent, v. Anne Schmitz Arnesen, Personal Representative of the estate of Richard B. Arnesen, M.D., Defendant-Respondent-Cross-Appellant, WISCONSIN PATIENTS COMPENSATION FUND, Defendant-Respondent.

No. 02-3339.

Court of Appeals of Wisconsin.

Opinion Filed: May 27, 2004.

Before Deininger, P.J., Dykman and Lundsten, JJ.

¶1 DYKMAN, J

¶1 This is a medical malpractice action. Kathrine Barber appeals from a judgment dismissing all of her claims against Dr. Richard Arnesen.¹ After the close of Barber's evidence at trial, the court dismissed her complaint for failure to present sufficient evidence as to the cause of her injuries.

¶2 Barber raises three issues: First, she contends that her evidence was sufficient because she did not need expert testimony to show that Dr. Arnesen's treatment caused her injuries. She asserts in the alternative that her expert, Dr. Bernard Katz, did testify that Dr. Arnesen's alleged negligence caused her injuries. Second, she contends that if Dr. Katz did not testify to causation, that failure was the result of the trial court's erroneous rulings on objections during Dr. Katz's direct examination. Third, she contends that Dr. Arnesen's alleged negligence exceeded any negligence attributable to her. We conclude that Barber's claims are without merit. We need not decide Dr. Arnesen's cross-appeal because it only asserts other reasons for affirming the judgment.

FACTS

¶3 Barber has a long history of mental illness which includes several suicide attempts. On November 30, 1995, she felt suicidal and sped down East Washington Avenue in Madison in her car while drunk, hoping to be stopped by police and jailed. The police responded and a chase ensued. Eventually, Barber pulled into a gas station and exited her car pointing a gun at her head. Despite pleas from the police, she refused to drop her gun. At trial, she testified about what occurred before the police shot her six times:

And so I started to put [the gun] down to my right. And the next thing I saw, were somebody's boot heels. And there was an officer that came toward me, pretty fast, and he was yelling at me.

And I saw him fall backwards. I saw him — his boot heels go up in the air, and then his gun went off. And that is when [the officers] started shooting me.

She testified that she suffered permanent physical injuries and emotional distress from the incident.

¶4 Dr. Arnesen, a psychiatrist, was treating Barber for her mental illness when she was shot. Barber sued Dr. Arnesen for medical malpractice, alleging that his treatment caused her injuries. The details of Barber's mental illness and Dr. Arnesen's treatment are not relevant to the issues on appeal. The dispute, which we have described, focuses on the cause of her injuries.

DISCUSSION

Sufficiency of the evidence

¶5 We first address whether Barber produced sufficient evidence at trial to survive a motion to dismiss at the close of her case. Because this is a medical malpractice case, Barber bore the burden of proving that Dr. Arnesen failed to exercise the degree of care and skill usually employed by the average practioner under similar circumstances. Ande v. Rock, 2002 WI App 136, ¶10, 256 Wis. 2d 365, 647 N.W.2d 265, review denied, 2002 WI 111, 256 Wis. 2d 64, 650 N.W.2d 840 (Wis. Jul. 30, 2002) (No. 01-1009), cert. denied, 527 U.S. 1107 (2003) (No. 02-640). Dr. Arnesen does not dispute that Barber met this test, but asserts that proof of causation is lacking. Barber contends that she does not need expert testimony to show causation. She argues that the jury could determine whether Dr. Arnesen's alleged negligence caused her conduct which resulted in her injuries. Both respondents assert that causation in a medical malpractice action is beyond a juror's common knowledge or experience. Thus, they claim that a lack of expert testimony regarding causation is fatal to Barber's claim.

¶6 We review motions challenging evidence sufficiency de novo. Seraphine v. Hardiman, 44 Wis. 2d 60, 65, 170 N.W.2d 739 (1969). We agree with respondents that "[a] plaintiff must supply an expert witness to testify as to causation and standard of care in medical malpractice actions involving matters beyond [] jurors' knowledge as laypersons." Glenn v. Plante, 2003 WI App 96, ¶10, 264 Wis. 2d 361, 663 N.W.2d 375, overruled on other grounds, 2004 WI 24, ___ Wis. 2d ___, 676 N.W.2d 413 (Wis. Mar. 24, 2004) (No. 02-1426). Here, however, the dispute lies in whether a juror can rely on his or her common knowledge or experience to determine whether Dr. Arnesen's psychiatric treatment caused Barber's injuries. "A defendant's negligence is `a cause' of a plaintiff's injury or damage if it was a substantial factor in producing the injury or damage." Alvarado v. Sersch, 2003 WI 55, ¶34 n.2, 262 Wis. 2d 74, 662 N.W.2d 350 (citation omitted).

¶7 The supreme court has clarified the necessity of providing expert causation testimony:

There may be cases where the issue of causation, like the issue of negligence, involves technical, scientific or medical matters which are beyond the common knowledge or experience of jurors and without the aid of expert testimony the jury could only speculate as to what inferences to draw if it were left to determine the issue. The lack of expert testimony in such cases results in an insufficiency of proof. See Kreyer v. Farmers' Cooperative Lumber Co. (1962), 18 Wis. (2d) 67, 117 N.W. (2d) 646 (cause of a barn fire); Peterson v. Greenway (1964), 25 Wis. (2d) 493, 131 N.W. (2d) 343 (cause of death of heifers).

... [I]t may be essential to have expert testimony in some cases on the issue of causation and, consequently, the lack of it may prevent a jury from considering the issue.

City of Cedarburg Light & Water Comm'n v. Allis-Chalmers Mfg. Co., 33 Wis. 2d 560, 568a-68b, 148 N.W.2d 661(1967).

¶8 Barber asserts that City of Cedarburg does not apply here. She argues that Ehlinger v. Sipes, 155 Wis. 2d 1, 454 N.W.2d 754 (1990) and Fischer v. Ganju, 168 Wis. 2d 834, 485 N.W.2d 10 (1992) "explicitly pull this case out of the realm of the City of Cedarburg exception." But she provides no citations to support her argument. We examine Ehlinger and Fischer to determine whether this is correct.

¶9 Ehlinger was a medical malpractice case. As in Barber's case, the trial court in Ehlinger dismissed the plaintiffs' complaint at the close of their case for failure to show that the defendant doctor's negligence was a cause of plaintiffs' injuries. Ehlinger, 155 Wis. 2d at 8. The supreme court reviewed the evidence presented and concluded: "We conclude that the Ehlingers produced sufficient evidence to present to the trier of fact the question of whether Dr. Sipes' alleged negligence was a substantial factor in causing [plaintiffs'] injuries." Id. at 9. Ehlinger was a "lost chance" case, and the court concluded:

In a case such as presented here, we conclude that by showing that the omitted treatment was intended to prevent the very harm which resulted, that the plaintiff would have submitted to the treatment, and that the treatment could have lessened or avoided the harm, the plaintiff establishes a sufficient nexus between the alleged negligence and harm to allow the trier of fact to determine whether the alleged negligence was a substantial factor in causing the harm.

Id. at 20.

¶10 Barber's case is not a "lost chance" case, but a mine run medical malpractice case in which the question was whether Dr. Arnesen's alleged negligence caused the sequence of events leading up to Barber being shot. Barber is incorrect that Ehlinger changed the law to permit a lesser standard for causation. We raised that very question when we certified Fischer, 168 Wis. 2d 834. The supreme court responded: "Because the jury instructions submitted to the jury in this case adequately stated the law of causation, and because [Ehlinger] did not substantively change that law, we affirm the circuit court." Fischer, 168 Wis. 2d at 842-43.

¶11 The jury instruction which was validated in Fisher was WIS JI— CIVIL 1023. Id. at 844. We need not quote that instruction because it is unremarkable, and requires the jury to consider whether the negligence of a defendant was a substantial factor in producing an injury. Therefore, Ehlinger did not change the law of causation as it was earlier explained in City of Cedarburg. Fischer repeats long held Wisconsin law regarding causation and holds that Ehlinger had not changed that law. Barber is therefore incorrect in her assertion that "the Ehlinger rule, specifically applicable to Barber's case, trumps the less specific exception to the rule in City of Cedarburg."

¶12 Barber also contends that City of Cedarburg does not control because the level of complexity in her case is unlike the barn fire and death of heifers cited as examples of complex cases by the supreme court. She argues that a barn fire and heifer deaths are "well beyond that which a jury could be expected to understand regarding causation without the assistance of expert testimony." She claims that it is reasonable to expect jurors to understand the nexus between Arnesen's alleged negligence and Barber's injuries.

¶13 Both respondents assert that a jury needs the aid of an expert to help evaluate whether Arnesen's treatment of Barber was a substantial factor in causing Barber's injuries. Respondent, Wisconsin Patient's Compensation Fund, also notes that this is not a res ipsa loquitor case; rather, numerous factors having nothing to do with Arnesen's treatment may have affected Barber's behavior that evening.

¶14 We conclude that this is a complex case requiring expertise regarding whether Dr. Arnesen's alleged malpractice caused Barber to initiate a high-speed car chase while driving drunk and then aim a gun at her head during a police confrontation. The jury would have to evaluate whether Barber was acting of her...