Martin by Scoptur v. Richards
| Decision Date | 12 March 1992 |
| Docket Number | No. 91-0016,91-0016 |
| Citation | 500 N.W.2d 691,176 Wis.2d 339 |
| Parties | Cheryl MARTIN, by her Guardian ad Litem, Paul J. SCOPTUR, Robert Martin & Darlene Martin, Plaintiffs-Appellants, d v. William H. RICHARDS, M.D., Defendant and Third-Party Plaintiff-Respondent,d Wisconsin Health Care Liability Insurance Plan and Wisconsin Patients Compensation Fund, Defendants- Respondents.d AETNA LIFE & CASUALTY CO. and Wisconsin Department of Health & Social Services, Defendants-Appellants, v. WISCONSIN HEALTH CARE LIABILITY INSURANCE PLAN, Third-Party Defendant-Respondent. Cheryl MARTIN, by her Guardian ad Litem, Paul J. SCOPTUR, Robert Martin and Darlene Martin, Plaintiffs-Appellants, v. Mark HANSEN, M.D., Fort Atkinson Memorial Hospital, Wisconsin Health Care Liability Insurance Plan and Wisconsin Patients Compensation Fund, Defendants-Respondents, Aetna Life & Casualty Co. and Wisconsin Department of Health & Social Services, Defendants-Appellants. . Oral Argument |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
This is a medical malpractice case. Cheryl Martin, then fourteen years old, suffered a head injury in a bicycle accident on July 10, 1985. While in the care of Dr. William H. Richards and Dr. Mark Hansen, Cheryl was admitted to Fort Atkinson Memorial Hospital for observation. Several hours after being admitted Cheryl suffered an epidural hematoma resulting from intracranial bleeding. She was flown to University of Wisconsin Hospital where emergency surgery was performed. The surgery was only partly successful and Cheryl was left with extensive and permanent injuries.
Cheryl and her parents, Robert and Darlene Martin, began this action against Dr We affirm the judgment dismissing plaintiffs' complaint against Fort Atkinson Memorial Hospital, but reverse the judgment as to Drs. Richards and Hansen and remand the case for a new trial on the issue of their liability for failure to comply with sec. 448.30, Stats. We affirm the judgment as to damages, except the award to Cheryl's parents for past care and services which may be redetermined on remand at their option.
Richards, Dr. Hansen and Fort Atkinson Memorial Hospital, 1 alleging negligence in their care and treatment of Cheryl and in failing to comply with sec. 448.30, Stats. 2 A jury found that neither Dr. Richards or Dr. Hansen was negligent in his care and treatment of Cheryl, but that Dr. Richards was negligent in failing to inform Cheryl's father, Robert Martin, about alternative modes of treatment. The jury awarded damages against Dr. Richards. On motions after verdict, the trial court dismissed the [176 Wis.2d 344] Martins' complaints as to all defendants. The Martins appeal.
We identify the following issues:
(1) Can this court conclude as a matter of law that any failure by Dr. Richards and Dr. Hansen to fully inform Cheryl's parents as to the options available to treat Cheryl was not a cause of Cheryl's injuries? We conclude that the evidence presented a question for the jury as to cause.
(2) Did Dr. Richards and Dr. Hansen have a duty under sec. 448.30, Stats., to inform Cheryl's parents that a CAT scan of Cheryl's brain could be performed to rule out intracranial bleeding, and that if Cheryl suffered such bleeding, the hospital did not have on staff or on call a neurosurgeon who could perform needed surgery? We conclude that sec. 448.30 required the doctors to provide such information to Cheryl's parents.
(3) Was the special verdict defective because it did not ask the jury whether Dr. Richards' breach of his duty to inform under sec. 448.30, Stats., was a cause of Cheryl's injuries? We conclude that the special verdict was defective and exercise our discretionary authority under sec. 752.35, Stats., to reverse the judgment as to Dr. Richards because the real controversy has not been fully tried.
Was the special verdict defective because it did not ask the jury whether Dr. Hansen breached his duty to inform under sec. 448.30, Stats., and whether that breach was a cause of Cheryl's injuries? We conclude that the special verdict was defective and reverse the judgment as to Dr. Hansen.
(4) Did the trial court erroneously exercise its discretion when it refused to allow plaintiffs to use the deposition of the hospital's medical expert, Dr. Ernest Sachs, at trial to show that the negligence of the hospital's nurses was a cause of Cheryl's injuries? We conclude that the trial court erroneously exercised its discretion, but the error did not affect plaintiffs' substantial rights.
(5) Did the trial court erroneously exercise its discretion when it refused plaintiffs' request that it give an instruction on cause based on Ehlinger v. Sipes, 155 Wis.2d 1, 454 N.W.2d 754 (1990)? Since this appeal was submitted, the Wisconsin Supreme Court decided Fischer v. Ganju, 168 Wis.2d 834, 485 N.W.2d 10 (1992), in which the court held that Ehlinger did not substantively change the substantial factor test for causation in medical malpractice actions. Therefore, the trial court did not err in refusing plaintiffs' request.
(6) Did the trial court erroneously exercise its discretion when it reduced the award to Cheryl's parents for past home and personal nursing care and services which they provided Cheryl? We conclude (7) Are secs. 655.017 and 893.55(4), Stats., which place a limit on noneconomic damages for medical malpractice, facially unconstitutional or unconstitutional as applied to the plaintiffs? Because we do not decide the constitutionality of a statute unless necessary to our decision, we do not reach this issue. The issue may become moot if plaintiffs do not succeed on remand in obtaining a judgment finding either Dr. Richards or Dr. Hansen negligent.
that the trial court properly exercised its discretion when it set aside the jury's award for such care and services. However, because the plaintiffs did not have an opportunity to be heard on the final amount remitted by the trial court, we reverse the judgment in this respect and [176 Wis.2d 346] direct that this amount be determined on remand at their option.
Cheryl Martin was received at the Fort Atkinson Memorial Hospital at 10:40 p.m. The emergency room doctor, defendant Dr. Richards, obtained x-rays and serial neurological examinations of Cheryl which were completed shortly before midnight. He diagnosed concussion.
Because Dr. Richards was not authorized to admit patients, he related his findings and diagnosis by telephone to defendant Dr. Mark Hansen, who was on call for the Martins' family doctor. Dr. Hansen agreed that Cheryl should be admitted to the hospital for overnight observation. Neither doctor informed Cheryl's parents that a CAT scan would disclose whether Cheryl was suffering intracranial bleeding or that the hospital did not have a neurosurgeon on staff or on call.
At midnight, Cheryl was placed on ward where she was periodically examined by a nurse. At 12:15 a.m., the nurse found Cheryl somewhat irritable, uncooperative and uncommunicative. When the nurse checked Cheryl at 1:15 a.m., she found Cheryl unresponsive, with evidence of a "blown" pupil in her left eye. The nurses alerted Dr. Richards, who immediately called Dr. Hansen, who requested that Cheryl be transported by helicopter to University of Wisconsin Hospital.
Cheryl arrived at U.W. Hospital at 3:00 a.m. After CAT scans located an epidural hematoma, surgery was performed at 3:55 a.m. A second, more invasive surgery was performed at 7:45 p.m. to re-evacuate a recurrent blood clot. As a result of her injuries, Cheryl is a spastic quadriparetic, with serious speech and physical handicaps, although with normal or near normal intelligence.
The Martins do not argue that the evidence was insufficient for the jury to find that the nurses' negligence was not a cause of Cheryl's injuries. Their sole attack on the jury's finding as to the nurses' negligence is that the trial court did not allow the jury to hear the deposition testimony of Dr. Sachs. We address that attack in Part IV of this opinion.
Dr. Richards and Dr. Hansen argue that we should conclude as a matter of law that their failure to inform Cheryl's parents of the availability of a CAT scan and the unavailability of a neurosurgeon at Fort Atkinson Memorial Hospital did not cause or contribute to Cheryl's injuries. If that is the case, such failure is irrelevant.
We conclude that we cannot determine the cause of Cheryl's injuries in this case as a matter of law. The jury heard sufficient evidence from which it could have concluded that surgical intervention at an earlier time would have been possible and would have lessened Cheryl's injuries. Dr. Levin and Dr. Ebersold testified that a CAT scan taken at 11:00 p.m. would have shown intracranial bleeding. Dr. Levin testified that Cheryl suffered additional neurological harm as time passed after her blown pupil was detected. We further discuss the question of cause in Part V of this opinion.
Dr. Richards suggests a scenario in which the epidural hematoma would have Dr. Richards' scenario also assumes that the injuries Cheryl suffered had all occurred by 1:15 a.m., when her blown pupil was detected. The undisputed evidence, however, was that her injuries worsened as time passed without surgical intervention.
been detected at Fort Atkinson Memorial Hospital by a CAT scan at 1:10 a.m. He then adds flight and surgical preparation time and concludes that surgical intervention would not have been possible before 2:20 a.m., more than an hour after Cheryl suffered permanent brain damage. However, his scenario assumes that if Cheryl's parents had been fully informed, they would have elected to keep Cheryl at the Fort Atkinson Memorial Hospital rather than transfer her to the University of Wisconsin Hospital....
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