Kirsch v. Start, 92-2902
| Decision Date | 24 February 1994 |
| Docket Number | No. 92-2902,92-2902 |
| Citation | 514 N.W.2d 878,182 Wis.2d 510 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Kevin KIRSCH, Plaintiff-Appellant, v. Dr. START, Barbara Whitmore, Dr. Wilson, and Janice Paral, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., DYKMAN and SUNDBY, JJ.
Kevin Kirsch, an inmate at Waupun Correctional Institution, appeals from an order dismissing his medical malpractice claims for failure to establish the existence of a prima facie case. The issues on appeal are:
(1) whether Kirsch would be required to present medical expert testimony to establish defendant Start's negligence; (2) whether Kirsch should be allowed to proceed with a 42 U.S.C. § 1983 claim for violation of his Eighth Amendment right to be free from cruel and unusual punishment; and (3) whether the trial court erred in denying Kirsch's motion for appointment of counsel. 1
We conclude that Kirsch would have to provide expert testimony to prevail in a malpractice suit against Start. We further conclude that Kirsch waived the § 1983 claim, and that the trial court properly exercised its discretion in declining to appoint counsel. Therefore, we affirm.
Kirsch commenced this action in June 1990, seeking an injunction directing Start, the medical director of the Bureau of Correctional Health Services (BCHS), to schedule surgery to remove prosthetic hardware from his hip. He also requested compensatory and punitive damages for pain and suffering caused by the delay in having such surgery performed.
Under Division of Health Policy Directive No. 600:01, effective January 26, 1989, "non-urgent" surgical procedures for inmates are undertaken only upon the approval and recommendation of either the BCHS medical director or a physician selected by BCHS. The policy directive requires non-urgent cases to be separated into two classes identified as Class III-A and Class III-B, respectively. The final designation of a case as Class III-A or III-B is made by either the medical director or a physician selected by BCHS. Class III-A cases are defined as:
Those involving persistent pain and experiencing serious discomfort or rapidly progressive disease or impairment, or where severity of pain has been progressive. The condition must be subject to surgical or medical correction or arrest. While no ill effects will result from a delay of several weeks or months, adequate care dictates the performance of medical, diagnostic or surgical procedures as soon as scheduling will reasonably permit.
Class III-B cases include:
Those not involving persistent pain, rapidly progressive disease or impairment and not solely for the convenience of the patient. No medical effects will result from delay of months or years. This is the sort of procedure which a noninstitutionalized or uninsured person might choose to delay until he or she becomes medically insured.
Kirsch's complaint alleges that in August 1988 and in late 1989, Dr. Richard Lange, an orthopedic surgeon at University Hospital in Madison, examined Kirsch and recommended that the hardware removal be classified as a Class III-A procedure. However, Start assigned a Class III-B rating on both occasions. The complaint alleges, and the answer admits, that BCHS will allow surgeries designated as Class III-A to be performed while refusing to authorize those designated as Class III-B. Kirsch asserts that Start was negligent in making such determinations contrary to the specialist's recommendations, and without personally examining him. As a result, Kirsch experienced "disabling periods of pain where [he could] not stand to put weight on his right leg." The complaint also states that the delay in the surgery would prolong the recovery period when the surgery would eventually be performed.
After a pretrial conference on March 2, 1992, the trial court ordered Kirsch to "provide either medical reports or affidavits establishing the existence of a prima facie case of medical malpractice by June 19, 1992." 2 Kirsch submitted a brief and an affidavit with thirty-nine pages of exhibits attached in response to the trial court's order. In the affidavit, Kirsch averred that on May 15, 1992, he saw Dr. Allen Breed, an orthopedic surgeon at University Hospital who had been treating him for foot injuries. Breed discovered a pocket of fluid which had developed around the hip hardware, and the hardware was removed on May 18, 1992. Kirsch averred that Breed had informed him that a portion of the hardware had fused with the bone and could not be removed without damaging the bone.
The exhibits include answers to the interrogatories served on Lange. Lange expressed no opinion as to whether Start acted in accordance with "the standards of medical care existing/applicable to Wisconsin in 1989" when Start, "a non-specialist," assigned a different priority to the surgery than Lange. Lange stated: Lange also opined that a portion of the hardware would most likely have fused with the bone even if the surgery had been performed in 1989. Finally, in response to whether it was "medically probable that the presence of the [h]ardware in Kirsch's upper right leg/hip from 1989 to 1992 caused Kirsch to feel pain that he would not have felt" if the hardware had been removed, Lange wrote: "The retained hardware was reported by Mr. Kirsch to be painful."
Kirsch did not attach to the affidavit copies of the answers to Start's interrogatories which were sworn to be true and correct. Instead, Kirsch summarized Start's responses throughout his trial court brief. In deciding summary judgment motions, we consider only those facts which are admissible in evidence and disregard hearsay evidence, allegations of ultimate facts and conclusions of law. Fritz v. McGrath, 146 Wis.2d 681, 689, 431 N.W.2d 751, 755(Ct.App.1988); § 802.08(3), Stats. We see no reason not to apply this rule in the case before us. Consequently, we do not consider the hearsay statements attributed to Start in Kirsch's trial court brief. 3
Kirsch argued in his brief that he should be allowed to proceed under the doctrine of res ipsa loquitur. Further, he claimed that he needed no expert witnesses other than Lange and Start, and that he had presented sufficient proof to demonstrate a prima facie case. Relying on Zintek v. Perchik, 163 Wis.2d 439, 455, 471 N.W.2d 522, 528(Ct.App.1991), the trial court held that Kirsch would be required to offer expert testimony. Because Kirsch failed to offer any expert opinion that Start had failed to exercise the appropriate degree of care, the trial court dismissed Kirsch's complaint. The trial court also denied Kirsch's motion for appointment of counsel which had been submitted along with his prima facie showing. This appeal followed.
As a general rule, medical malpractice cannot be established without expert testimony. Zintek, 163 Wis.2d at 455, 471 N.W.2d at 528. Without such testimony, the jury in a medical negligence case has no standard to enable it to determine whether the defendant practitioner failed to exercise the required degree of care and skill. Id. Kirsch contends that expert testimony would not be required in his case because he would proceed under the theory of res ipsa loquitur to establish Start's liability. We disagree.
In Lecander v. Billmeyer, 171 Wis.2d 593, 601-02, 492 N.W.2d 167, 170-71(Ct.App.1992), we listed three conditions which must be satisfied before a res ipsa instruction is given to a jury: (1) either a layperson is able to determine as a matter of common knowledge, or an expert testifies, that the result which has occurred does not ordinarily occur in the absence of negligence; (2) the agent or instrumentality causing the harm was within the defendant's exclusive control; and (3) the evidence offered is sufficient to remove the question of causation from the realm of conjecture, but not so substantial as to provide a full and complete explanation of the event.
The first condition illustrates that even if the res ipsa doctrine were applicable, it does not necessarily follow that Kirsch could prevail without presenting medical expert testimony. Further, we conclude that res ipsa would not be available to Kirsch. Kirsch's theory of the case is that he has sustained prolonged pain and an increased risk of bone damage (which allegedly would occur if the hardware which fused with his bone would have to be removed) because of BCHS's delay in authorizing the hip surgery. The delay in turn was due to Start's allegedly classifying the procedure without personally examining Kirsch or considering his medical records and Lange's diagnosis. Evidence offered at trial to support Kirsch's theory would provide a full and complete explanation for the alleged injuries Kirsch suffered. Thus, the third condition noted above would not be satisfied, and a res ipsa instruction could not be given to the jury.
Since Kirsch has failed to demonstrate that his case falls within the exception to the general rule, the trial court correctly held that Kirsch would be required at trial to offer expert testimony on the appropriate standard of care and Start's failure to exercise that degree of care. Furthermore, we believe that Kirsch would also be required to present expert opinion on whether his alleged injuries were caused by the hip hardware. Whether Kirsch would have experienced pain without the hardware, whether the hardware would have fused to the bone had the surgery been performed earlier, and whether the remaining hardware is likely to cause...
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