Carney-Hayes v. Northwest Wis. Home Care, No. 2003AP1801.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtDavid T. Prosser
Citation___ Wis.2d ___,699 N.W.2d 524,2005 WI 118
PartiesAmanda CARNEY-HAYES, by her Guardian ad Litem Thomas A. McCormack, Walter Pietrzen and Linda Pietrzen, Plaintiffs-Respondents-Cross-Appellants, v. NORTHWEST WISCONSIN HOME CARE, INC. and Kathy Avery, Defendants-Appellants-Cross-Respondents.
Decision Date12 July 2005
Docket NumberNo. 2003AP1801.
699 N.W.2d 524
___ Wis.2d ___
2005 WI 118
Amanda CARNEY-HAYES, by her Guardian ad Litem Thomas A. McCormack, Walter Pietrzen and Linda Pietrzen, Plaintiffs-Respondents-Cross-Appellants,
v.
NORTHWEST WISCONSIN HOME CARE, INC. and Kathy Avery, Defendants-Appellants-Cross-Respondents.
No. 2003AP1801.
Supreme Court of Wisconsin.
Argued November 4, 2004.
Decided July 12, 2005.

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For the plaintiffs-respondents-cross-appellants there were briefs by Ardell W. Skow, Martha H. Heidt and Doar, Drill & Skow, S.C., Baldwin, and oral argument by Matthew A. Biegert.

For the defendants-appellants-cross-respondents there was a brief by Donald K. Schott, Sarah E. Coyne, Emily M. Feinstein, O. Thomas Armstrong and Quarles & Brady LLP, Madison, and oral argument by Donald K. Schott.

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Amicus curiae briefs were filed by Lester A. Pines, Tamara B. Packard and Cullen Weston Pines & Bach LLP, Madison, on behalf of the Wisconsin Patients Compensation Fund.

An amicus curiae brief was filed by Guy DuBeau, Joseph C. Copa and Axley Brynelson, LLP, Madison, on behalf of Civil Trial Counsel of Wisconsin.

An amicus curiae brief was filed by William C. Gleisner, III and Law Offices of William Gleisner, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1 DAVID T. PROSSER, J.


This case is before the court on bypass pursuant to Wis. Stat. § (Rule) 809.60 (2001-02).1 The plaintiff, Amanda Carney-Hayes (Carney-Hayes) and the defendants, Northwest Wisconsin Home Care Inc. and Kathy Avery (collectively, Northwest) join in this interlocutory appeal from the evidentiary rulings of the Circuit Court for Eau Claire County, Lisa K. Stark, Judge. Carney-Hayes sued Northwest, alleging that one of its employees, Kathy Avery, negligently provided emergency nursing treatment. Carney-Hayes now seeks to compel expert opinion testimony regarding the applicable standards of care from three unwilling witnesses—Avery, Cheryl Fontaine, and Jodene Verbracken. All three played a role in Northwest's treatment of Carney-Hayes, but only Avery is a named defendant. All three refused to answer certain questions posed at their depositions, asserting the privilege we recognized in Burnett v. Alt, 224 Wis.2d 72, 589 N.W.2d 21 (1999), and reiterated in Glenn v. Plante, 2004 WI 24, 269 Wis.2d 575, 676 N.W.2d 413.

¶ 2 Carney-Hayes filed motions asking the circuit court to compel the three witnesses to testify on these standard of care questions. The circuit court held two separate motion hearings. At the first hearing, it granted Carney-Hayes' motion to compel Avery's testimony as to the standard of care because Avery is a named party and because "she was there," providing treatment to Carney-Hayes at the time of the incident in question. The court believed that these facts distinguished Avery from Dr. Ernesto Acosta, the unwilling expert in Alt, because "the Alt hold[ing] can be limited to a nonparty, unpaid expert."

¶ 3 At the second hearing, however, the court denied a similar motion relating to Fontaine. The court reasoned that Fontaine's position was different from Avery's because Fontaine "was not present ... did not provide direct care to the plaintiff [and is] not a named party." Fontaine's position, in the court's view, corresponded to Dr. Acosta's position in Alt.

¶ 4 The circuit court characterized its decision with respect to Verbracken as the most difficult of the three, because Verbracken had previously been a direct caregiver for Carney-Hayes and had written Northwest's "plan of care" for Carney-Hayes. However, Verbracken was not at the scene of the incident, nor was she one of Carney-Hayes' direct caregivers at that time. Therefore, the court directed Verbracken to answer questions about the standard of care "with respect to the plan of care, its preparation, its maintenance, and how it should be followed." She was not required to answer questions eliciting her opinion about Avery's direct care to the plaintiff.

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¶ 5 We take this opportunity to reaffirm our holdings in Alt and Glenn and to clarify the duties and privileges of medical witnesses in a medical malpractice case. (1) A medical witness must testify about her own conduct relevant to the case, including her observations and her thought processes, her treatment of the patient, why she took or did not take certain actions, what institutional rules she believed applied to her conduct, and her training and education pertaining to the relevant subject. (2) Subject to the compelling need exception recognized in Alt and Glenn, a medical witness who is unwilling to testify as an expert cannot be forced to give her opinion of the standard of care applicable to another person or her opinion of the treatment provided by another person. Unless a medical witness who is unwilling to testify as an expert is alleged to have caused injury to the plaintiff by her medical negligence, the witness is not required to give her opinion on the standard of care governing her own conduct. (3) A medical witness who is alleged to have caused injury to the plaintiff by her medical negligence may be required to give her opinion on the standard of care governing her own conduct. A witness in this category may be a party defendant. However, no medical witness may be named a party defendant for the purpose of eliciting the witness's expert opinion. The circuit court may assess whether there is a reasonable basis for naming a medical witness as a party defendant. The court should assure that any medical witness from whom expert opinion is required is qualified to testify as an expert, pursuant to Wis. Stat. § 907.02. The court may employ evidentiary rules, including §§ 904.02, 904.03, and 906.11 to maintain the focus of a medical malpractice trial on whether the defendant conformed to the standard of care, not whether the defendant performed well as an expert witness.

FACTS AND PROCEDURAL POSTURE

¶ 6 Carney-Hayes suffers from spina bifida and other congenital diseases.2 She cannot breathe on her own. She is dependent on a ventilator and, at the time of the incident underlying this lawsuit, she received 24-hour home care from Northwest. At that time, Avery was Northwest's in-home "one on one" nurse, Verbracken was Carney-Hayes' "case manager" responsible for preparing care plans for treatment, and Fontaine was Northwest's "Director of Extended Care Services," a supervisor responsible for Avery's training.

¶ 7 On April 7, 1999, Carney-Hayes stopped breathing while she was at school. Avery testified that this was not an infrequent problem for Carney-Hayes, and that it was even to be expected for patients suffering from Carney-Hayes' ailments. The usual cause, according to Avery, is the inability of such patients to clear secretions from their lungs. The usual treatment is to suction the secretions out of the lungs. Avery was present at the school with Carney-Hayes, and she testified that as she prepared to suction Carney-Hayes' secretions, she noticed that Carney-Hayes had no pulse. Aided by bystanders, Avery immediately initiated cardiopulmonary resuscitation (CPR). Ultimately, Avery succeeded in saving Carney-Hayes' life, but Carney-Hayes alleges that she suffered serious injuries as a result of the incident.

¶ 8 Carney-Hayes alleges that Avery negligently failed to open her trachea before

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beginning CPR, and further alleges that if Avery had properly followed standard medical procedures, Carney-Hayes' heart never would have stopped. Carney-Hayes filed suit against Northwest and Avery on March 28, 2002, alleging that they were negligent in her treatment. Discovery ensued.

¶ 9 Carney-Hayes deposed Avery, Verbracken, and Fontaine. Avery's deposition took place on November 14, 2002. It lasted almost six hours and produced 173 pages of testimony. Plaintiff's counsel asked and Avery answered many questions that called for Avery's opinion and her description of her training as well as her conduct, thoughts, and observations on the date of the incident. The following exchanges took place between Avery and the plaintiff's attorney:

Q: Is that a common problem for all ventilator dependent patients... that they have some problems moving their secretions from their lungs?

A: They need to be suctioned periodically, yes.

....

Q: I understand that you can recount the day, but I would also like you, if you can, to recount the conversation that you had with Kathy Johnson and perhaps Kelly ... what did you tell them?

A: ... I explained what had happened. I told them that the vent went off. I went to check on it. It said high pressure. Went to grab a suction catheter and looked at Amanda. She was cyanotic. And diaphoretic and had clear secretions coming out of her nose, mouth and trach. And at that time I reached for her brachial pulse and did not feel one. I reached for carotid pulse and did not feel one. Took her bag, dumped it out, grabbed the ambu bag, took the vent off. I threw the circuit, put the ambu bag on her trach, started ventilating her. Then I need to back up. Before—before—when I started bagging her, at that time I called—I hollered for somebody to call 911. And the teacher was there by me. I had her hold onto the ambu bag and told her to squeeze it together until it met in the middle and release it so she could exhale, and do that rather fast. Unhooked her from the seat belt, straightened out her legs and we—there was somebody else there. And between the two of us, we slid her to the floor. I asked if anybody knew C.P.R. and somebody came up and started doing compressions and I was doing the bagging ...

Q: In your opinion, did Amanda have a mucous plug on April 7th of 1999?

A: In my opinion on that day I do not know what happened.

Q: Can a mucous plug cause the trach to become obstructed?

A: It can.

Q: Can a mucous plug cause someone who is ventilator dependent to lose the ability to breathe?

...

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