Glenn v. Plante, No. 02-1426.

• Court: Court of Appeals of Wisconsin
• Citation: 264 Wis.2d 361,2003 WI App 96,663 N.W.2d 375
• Docket Number: No. 02-1426.
• Parties: Sinora GLENN and Christopher Glenn, Plaintiffs-Respondents, v. Michael T. PLANTE, M.D. and Family Health Plan, Defendants-Appellants.
• Decision Date: 15 April 2003

264 Wis.2d 361
2003 WI App 96
663 N.W.2d 375

Sinora GLENN and Christopher Glenn, Plaintiffs-Respondents,
v.
Michael T. PLANTE, M.D. and Family Health Plan, Defendants-Appellants.¹

No. 02-1426.

Court of Appeals of Wisconsin.

Submitted on briefs March 5, 2003.

Decided April 15, 2003.

264 Wis.2d 363

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. SCHUDSON, J.

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

264 Wis.2d 364

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.

I. BACKGROUND

¶ 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

264 Wis.2d 365

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

264 Wis.2d 366

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:

• March 8, 1999: Glenns file their complaint; case is assigned to Judge Christopher Foley.

• March 17, 1999: Parties file request for mediation.

• April 6, 1999: Judge Foley sets scheduling conference for June 10, 1999; Defendants file answer to complaint.

• April 15, 1999: Judge Foley cancels June 10 scheduling conference; re-sets it for July 1, 1999.

• April 20, 1999: Mediation scheduled for June 30, 1999.

• June 7, 1999: Defendants request substitution for Judge Haese after notification that case would be transferred to him upon judicial rotation.

• June 9, 1999: Case reassigned to Judge Diane Sykes.

264 Wis.2d 367

• June 10, 1999: Judge Sykes sets scheduling conference for June 23, 1999.

• June 23, 1999: Judge Sykes holds scheduling conference; requires plaintiffs to name expert witnesses by September 23, 1999 and defendants to name expert witnesses by December 23, 1999.

• June 30, 1999: Mediation hearing held.

• July 12, 1999: Plaintiffs file jury demand.

• October 28, 1999: Judge Sykes sets pre-trial conference for January 25, 2000; notifies parties that case will be reassigned to Judge Dominic Amato on November 8, 1999.

• December 27, 1999: Defendants file motion to dismiss for failure to comply with scheduling order.

• January 10, 2000: Defendants file pre-trial report; also file various motions in limine.

• January 21, 2000: Plaintiffs file witness list naming Dr. Koh, Dr. Sul Chung and Dr. David Nash⁵ as expert witnesses; also file pre-trial report and motion to amend scheduling order to extend time to name expert witnesses.

264 Wis.2d 368

• February 3, 2000: Judge Amato orders plaintiffs limited to Dr. Koh and Dr. Chung⁶ as expert witnesses; grants defendants additional time to name additional experts.

• March 14, 2000: Judge Amato schedules trial for March 5, 2001.

• December 20, 2000: Judge Amato recuses himself; case reassigned to Judge David Hansher.

• January 2, 2001: Case reassigned to Judge Maxine White.

• January 12, 2001: Judge White sets scheduling conference for January 29, 2001.

• January 29, 2001: Defendants file restraining order, dated October 16, 2000, prohibiting continuation of case against Family Health Plan due to its federal court bankruptcy proceedings.

• May 22, 2001: Parties file stipulation permitting continuation of suit against Dr. Plante.

• January 30, 2002: Plaintiffs inform court of Dr. Koh's unavailability for February 4 trial because he would be out of town; court vacates trial date.

• February 7, 2002: Plaintiffs move for an order amending scheduling order for purposes of extending time to name expert witnesses.

663 N.W.2d 369

• February 15, 2002:

...