Glenn v. Plante, 02-1426.
| Decision Date | 24 March 2004 |
| Docket Number | No. 02-1426.,02-1426. |
| Citation | 2004 WI 24,676 NW 2d 413 |
| Parties | Sinora Glenn and Christopher Glenn, Plaintiffs-Respondents, v. Michael T. Plante, M.D. and Family Health Plan, Defendants-Appellants-Petitioners. |
| Court | Wisconsin Supreme Court |
For the defendants-appellants-petitioners there were briefs by Michael P. Russart and Hinshaw & Culbertson, Milwaukee, and oral argument by Michael P. Russart.
For the plaintiffs-respondents there was a brief by John K. Brendel and Brendel Law Offices, Brookfield, and oral argument by John K. Brendel.
An amicus curiae brief was filed by William C. Gleisner, III and Law Offices of William C. Gleisner, III, Milwaukee, and Edward E. Robinson and Cannon & Dunphy, S.C., Brookfield, on behalf of the Wisconsin Academy of Trial Lawyers.
An amicus curiae brief was filed by Timothy J. Muldowney, Jennifer L. Peterson and LaFollette Godfrey & Kahn, Madison, and Mark L. Adams and Melanie Cohen, Madison, on behalf of the Wisconsin Medical Society and American Medical Association.
An amicus curiae brief was filed by David E. McFarlane, Sheila M. Sullivan and Bell, Gierhart & Moore, S.C., Madison, on behalf of the Civil Trial Counsel of Wisconsin.
¶ 1
The petitioner 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 treating physician of the plaintiff Sinora Glenn (Glenn) would be compelled to provide expert testimony at trial. Due to the plaintiffs' counsel's failure to meet the scheduling order deadline for naming expert witnesses, Glenn and her husband, Christopher Glenn, (Glenns) planned to call only one expert witness, Charles Koh, M.D. (Koh). However, Koh refused to provide expert testimony for the plaintiffs. The circuit court ordered Koh to provide expert testimony because it concluded that there were compelling circumstances that rendered his testimony unique. A divided court of appeals affirmed the circuit court order, concluding that the circuit court reasonably exercised its discretion in ordering Koh to provide expert testimony.
¶ 2 We conclude that Koh should not have been ordered to give expert opinion testimony in this case, since the record does not clearly reflect the question or questions to be asked of Koh, nor was Koh given the opportunity formally to invoke a privilege not to testify. In Burnett v. Alt, 224 Wis. 2d 72, 89, 589 N.W.2d 21 (1999), we held that a physician who has asserted his or her privilege not to testify can be required to give expert testimony only if all of the following factors are present: (1) there are compelling circumstances present; (2) the party seeking the testimony has presented a plan for reasonable compensation of the expert; and (3) the expert will not be required to do additional preparation for the testimony. Alt does not apply to observations made by a person's treating physician regarding the care and treatment provided to the patient, but rather applies to expert testimony from such a physician as to the standard of care and treatment provided by another physician. Where there is a correct application of Alt, the determination as to whether compelling circumstances exist involves a discretionary decision by the circuit court judge. The compelling circumstances should focus on whether there is unique or irreplaceable opinion testimony sought from an expert, not on procedural aspects of the case.
¶ 3 The circuit court in this case misapplied the standard set forth in Alt, as there was no definite question or questions before the court and no clear formal invocation by Koh of a claimed privilege not to testify. Because the circuit court misapplied our holding in Alt, it erroneously exercised its discretion. Thus, we reverse the decision of the court of appeals, which affirmed the circuit court order, and remand the cause to the circuit court for further proceedings in accord with this decision.
¶ 4 The Glenns allege the following: In September 1995, Glenn experienced abdominal pain that was determined to be a right ovarian cyst. As a result of this diagnosis, she was referred by her physician to Plante, a gynecologist in the Family Health Plan group. Plante recommended to Glenn that she undergo a laparotomy1 with a right ovarian cystectomy.2 Plante performed the recommended surgery, but also performed a right oophorectomy3 allegedly without Glenn's knowledge or consent. Glenn continued to experience abdominal pain after this surgery. Plante then recommended that Glenn undergo a hysterectomy.4 Glenn wanted to obtain a second opinion before undergoing the operation. Glenn's primary physician provided her with the name of another specialist, but Glenn's HMO advised her that she was ineligible to make an appointment with this specialist. Thus, although Glenn desired to have more children, she relied on Plante's determination and underwent a hysterectomy. After the operation, Glenn continued to experience the abdominal pain and also developed symptoms commonly associated with menopause. In addition, she suffered from depression, which she claimed was due to her inability to conceive additional children. In order to relieve her persistent pain, Glenn visited Koh, a physician outside of the Family Health Plan group. Koh removed abdominal adhesions, and Glenn's pain subsided. Koh suggested to Glenn that the procedures performed by Plante were not necessary, and the Glenns thereafter consulted an attorney.
¶ 5 The Glenns filed this action in Milwaukee County Circuit Court against Plante and Family Health Plan. In the complaint, Glenn alleged that Plante failed to exercise the degree of care, skill, and judgment that physicians reasonably and usually exercise under such circumstances. As a result of Plante's alleged negligence, Glenn contended that she was damaged both mentally and physically. Glenn further alleged that Family Health Plan was liable for Plante's negligence, and was further negligent in failing to provide her with alternate physicians, or opportunities for other treatment that might have alleviated her pain. Glenn's husband also alleged that he suffered loss of consortium, society, and companionship with his wife, as well as losing his ability to have additional children with his wife, due to Plante and Family Health Plan's negligence. The case was assigned to Circuit Judge Christopher R. Foley, and a scheduling conference was set for June 10, 1999. Glenn subsequently requested mediation with the Medical Mediation Panels. Plante and Family Health Plan requested that the scheduling conference be reset for a time after the mediation period had ended. Accordingly, Judge Foley reset the scheduling conference to July 1, 1999.
¶ 6 As a result of judicial rotation, the case was reassigned to Circuit Judge William J. Haese. Plante and Family Health Plan immediately filed a request for judicial substitution, and Circuit Judge Diane S. Sykes (now Justice Sykes) was assigned to the case. Judge Sykes held a scheduling conference on June 23, 1999, and required the Glenns and Plante and Family Health Plan to name their expert witnesses by September 23 and December 23, 1999, respectively. The case was then reassigned to Circuit Judge Dominic S. Amato effective November 8, 1999. On December 27, 1999, Plante and Family Health Plan filed a motion to dismiss due to the Glenns' failure to provide the names of their expert and lay witnesses, as well as their failure to provide a statement of itemized special damage claims that was also due on September 23, 1999. In response, the Glenns named Koh, Dr. Sul Chung, and Dr. David Nash as expert witnesses, and moved the court to amend the scheduling order for purposes of extending the time available to name expert witnesses. Judge Amato ordered that the Glenns were not permitted to call any expert witnesses other than Chung5 and Koh. Judge Amato further ordered that, by February 24, 2000, the Glenns had to provide the court and opposing counsel with, among other information, written reports involving the physicians' areas of expertise and their opinions regarding this case. The Glenns' counsel never provided written reports regarding the expert witnesses, or a statement of itemized special damage claims, to the court.
¶ 7 On February 24, 2000, Koh wrote a letter to Judge Amato, stating his concern about the treatment Glenn received from Plante and another doctor in the Family Health Plan group. Although he felt that "the hysterectomy and the removal of the left ovary (were) unwarranted," Koh stated that he did not wish to be a witness in this case. Koh stated that he was writing the letter at the request of the Glenns' counsel, who had informed him that such a letter was necessary in order for the Glenns to file suit. Nevertheless, Koh conveyed his dissatisfaction with having to write the letter and noted that few doctors would want to be part of a malpractice action against a fellow local physician. In a letter to the Glenns' counsel dated November 6, 2000, Koh again noted his displeasure with counsel's attempt to secure his expert testimony and stated the following: "I clearly stated at the time of the meeting that I would not be (an) expert witness as I was (Glenn's) treating physician."
¶ 8 Judge Amato recused himself on December 20, 2000, and the case was assigned to Circuit Judge David A. Hansher for further proceedings. The case was ultimately reassigned to Circuit Judge Maxine A. White on January 2, 2001. The case was adjourned on January 29, 2001, due to Family Health Plan's involvement in bankruptcy proceedings. In May 2001, the parties stipulated that Family Health Plan would be dismissed from the case, and all claims against it were waived. The Glenns continued their suit against...
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