Glenn v. Plante, 02-1426.
| Decision Date | 15 April 2003 |
| Docket Number | No. 02-1426.,02-1426. |
| Parties | Sinora GLENN and Christopher Glenn, Plaintiffs-Respondents, v. Michael T. PLANTE, M.D. and Family Health Plan, Defendants-Appellants. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendants-appellants, the cause was submitted on the briefs of Michael P. Russart of Hinshaw & Culbertson, of Milwaukee.
On behalf of the plaintiffs-respondents, the cause was submitted on the brief of John K. Brendel of Brendal Law Office, of Brookfield.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
¶ 1.
Dr. Michael T. Plante appeals from the circuit court's order2 denying his motion to dismiss the medical malpractice suit of Sinora Glenn and her husband, Christopher.3 Dr. Plante argues that the circuit court incorrectly concluded that, under Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999),4 the Glenns had shown "compelling circumstances" to require expert testimony from Dr. Charles H. Koh and, therefore, the court erred in denying his motion to dismiss.
¶ 2. We acknowledge the merits of Dr. Plante's argument. We conclude, however, that under the unusual circumstances of this case, the circuit court appropriately exercised discretion in requiring Dr. Koh to testify and, therefore, in denying Dr. Plante's motion to dismiss. Accordingly, we affirm.
¶ 3. The Glenns' complaint alleged, in part, that in 1995, while performing surgery on Ms. Glenn, Dr. Plante, who specializes in obstetrics and gynecology, "also performed a right oophorectomy without her knowledge and certainly without any prior disclosure that such oophorectomy would be necessary or even occur." The Glenns further allege that Ms. Glenn, then in her mid-twenties, continued to suffer abdominal pain ultimately leading Dr. Plante to perform a hysterectomy, even though, "at such time, Dr. Plante knew, or should have known, that she wished to have additional children." The complaint continued:
[Dr. Plante], in providing such medical care and advice, failed to exercise that degree of care, skill and judgment which physicians reasonably and usually otherwise exercise under such circumstances in that he failed to properly use methods of diagnoses as were available to him to determine the need or extent of her medical problem and failed to provide ... Sinora ... with such information necessary to disclose to the patient alternative methods of diagnosis and/or treatment, thereby denying the patient the right to choose a proper procedure which was to be used[,] and secured her consent thereby without providing her with adequate information which would have informed her more fully prior to giving her consent; that, had she known that the remedy was not a cure and there would be future symptoms thereafter, she would not have authorized that operation nor given her consent[.]
¶ 4. Following her treatment by Dr. Plante, Ms. Glenn was treated by Dr. Koh. In his February 24, 2000 letter to the court, Dr. Koh opined that various aspects of Dr. Plante's treatment of Ms. Glenn were inappropriate and, among other things, "the hysterectomy and the removal of the left ovary [were] unwarranted." In that same letter, however, Dr. Koh also advised that he was reluctant to testify. He explained that "most doctors do not wish to play a leading role in any malpractice case against another local physician." In a subsequent letter to the Glenns' counsel, Dr. Koh reiterated that Ms. Glenn's "treatment of multiple surgeries culminating in her sterility ... was unusual and may not meet the standard of care," but also that he "would not be [an] expert witness as [he] was her treating physician."
¶ 5. According to the Glenns' pretrial report, Dr. Koh was to testify "as to the medical finding[s] he experience[d] regarding the medical problems of [Ms. Glenn], his patient, and the diagnosis and treatment made thereof; his prognosis for her future; his opinions of the medical care she received from Dr. Plante as compared to applicable standards and their profession." The Glenns' counsel, however, failed to timely file their list of expert witnesses, together with the experts' reports, pursuant to the scheduling order.
¶ 6. For several years, the case traveled through the state courts of six different circuit court judges and was further complicated by the federal bankruptcy proceedings for Family Health Plan. The procedural history is summarized in the circuit court's eighteen-page decision denying Dr. Plante's motion to dismiss. Because that procedural history was important to the circuit court's discretionary decision, and also because that history is a factor in our evaluation of whether the court erred in reaching its "compelling circumstances" conclusion, we summarize the sequence of events leading to this appeal:
¶ 7. It is undisputed that the Glenns' counsel failed to name expert witnesses by September 23, 1999, as required by Judge Sykes' order. As the Glenns concede:
The ... error [was] in failing to recognize that despite all of the changes of judges and the many, many notices received, the original scheduling conference held by Judge Sykes in April, even before the mediation hearing was held, had never been altered and the deadline for the filing of the Plaintiffs' Witness List, including experts, had passed.
¶ 8. Ultimately, the case came to Judge White's branch of the circuit court where, as noted, the Glenns again moved for additional time for an extension to amend the scheduling order in order to locate other expert witnesses. Judge White denied the motion concluding that, notwithstanding the confusion that may have been generated by the protracted case history, counsel simply did not have a justifiable excuse for missing the deadline. The Glenns, conceding Judge White's discretionary decision on that point, do not appeal the denial of their motion.
¶ 9. Judge White also determined, however, that "Dr. Koh is a treating physician whose opinion/testimony concerning his treatment of Ms. Glenn is unique and therefore should be compelled." Judge White concluded, therefore, that "[b]ecause Dr. Koh, despite his refusal to testify, can be compelled to do so under Alt, the plaintiff will have an opportunity to present the required medical support for her claim." Accordingly, Judge White denied Dr. Plante's motion to dismiss; Dr. Plante challenges that ruling.
[1]
¶ 10. A plaintiff must supply an expert witness to testify as to causation and standard of care in medical malpractice actions involving matters beyond a jurors' knowledge as laypersons. See Froh v. Milwaukee Med. Clinic, S.C., 85 Wis. 2d 308, 317, 270 N.W.2d 83 (Ct. App. 1978)
. Without Dr. Koh, the Glenns would be left without testimony from a crucial, treating physician and without testimony from any expert on standard of care and causation.
[2]
¶ 11. Dr. Plante argues that Judge White misapplied Alt. He contends that the required "showing of compelling circumstances" under Alt cannot come about when, as here, the plaintiffs' failure to comply with a scheduling order created those very circumstances. Thus, Dr. Plante argues, Dr. Koh cannot be compelled to testify and, therefore, the Glenns' suit, lacking an expert witness on standard of care and causation, must be dismissed. We...
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...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) ......
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Glenn v. Plante, 02-1426.
...in this case, Michael T. Plante, M.D., (Plante) seeks review of a published court of appeals' decision, Glenn v. Plante, 2003 WI App 96, 264 Wis. 2d 361, 663 N.W.2d 375, affirming a non-final order of the Milwaukee County Circuit Court in a medical malpractice action, which stated that a tr......