Martin by Scoptur v. Richards
| Decision Date | 01 February 1994 |
| Docket Number | No. 91-0016,91-0016 |
| Citation | 531 N.W.2d 70,192 Wis.2d 156 |
| Parties | Cheryl MARTIN, By her Guardian ad Litem, Paul J. SCOPTUR, Robert Martin & Darlene Martin, Plaintiffs-Appellants-Petitioners, v. William H. RICHARDS, M.D., Defendant and Third-Party Plaintiff-Respondent Cross-Petitioner, Wisconsin Health Care Liability Insurance Plan Defendant-Respondent, Wisconsin Patients Compensation Fund, Defendant-Respondent Cross-Petitioner, 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-Petitioners, v. Mark HANSEN, M.D., Defendant-Respondent-Cross Petitioner, Fort Atkinson Memorial Hospital, Wisconsin Health Care Liability Insurance Plan, Defendants-Respondents, Wisconsin Patients Compensation Fund, Defendant-Respondent-Cross Petitioner, Aetna Life & Casualty Co. and Wisconsin Department of Health & Social Services, Defendants-Appellants. . Oral Argument |
| Court | Wisconsin Supreme Court |
For plaintiffs-appellants-petitioners there were briefs by Timothy J. Aiken, Kelly L. Centofanti and Aiken & Scoptur, S.C., Milwaukee and oral argument by Timothy J. Aiken.
For defendant-respondent-cross petitioner there were briefs by Paul R. Erickson, Colleen M. Fleming and Gutglass, Erickson & Bonville, S.C., Milwaukee and oral argument by Paul R. Erickson.
For defendant and third party plaintiff-respondent cross petitioner and for defendant-respondent-cross petitioner there were briefs by Timothy J. Strattner, Clare T. Ryan, Linda Vogt Meagher and Schellinger & Doyle, S.C., Brookfield and oral argument by Timothy J. Strattner.
Amicus curiae brief was filed by Mark L. Thomsen and Cannon & Dunphy, S.C., Brookfield for Wisconsin Academy of Trial Lawyers.
Cheryl Martin ran into the back of a truck while riding her bicycle. She was taken to the Fort Atkinson Memorial Hospital (FAMH) emergency room suffering from head injuries. The doctor failed to inform her father that a CT scanner was available to diagnose the extent of his daughter's head injuries. Further, the doctor failed to inform her father that if his daughter developed intracranial bleeding, there would be a significant delay in the ability to treat her because she would have to be transferred to a facility in Madison: FAMH did not have a neurosurgeon. A CT scan was not performed; intracranial bleeding developed approximately three hours after admission. Severe and permanent injuries resulted. The issue is whether sec. 448.30, Stats., 1 required Dr. William H. Richards and Dr. Mark Hansen to inform Robert Martin about the availability of the CT scan and the unavailability of a neurosurgeon should intracranial bleeding develop. The court of appeals concluded that Dr. Richards was required to do so, and we agree. Unlike the court of appeals, however, we do not remand for a new trial. We conclude that the failure of the verdict to contain a question on cause with respect to the issue of informed consent was not fatally defective because the parties waived such question. We conclude that the circuit court was correct in determining that sec. 448.30 was inapplicable to Dr. Hansen. Finally, we hold that the retroactive cap on noneconomic damages is unconstitutional and, accordingly, the Martins are entitled to their full award of noneconomic damages.
The underlying facts are as follows (other facts will be included as necessary throughout the opinion). On the evening of July 10 1985, Ms. Martin, then 14 years old, ran into the back of a truck while riding her bicycle in Jefferson, Wisconsin. Ms. Martin was transported to FAMH where she arrived at approximately 10:40 p.m. Dr. Richards was staffing the hospital's emergency room that evening. He examined Ms. Martin when she came in, and again one hour later. Dr. Richards possessed these facts regarding Ms. Martin's condition:
1. She had run into the back of a dump truck while riding her bicycle;
2. She had been unconscious at the scene for an undetermined period of time;
3. She had vomited five or six times;
4. Amnesia had been observed;
5. There was swelling and bruising to the right zygomatic area, an area of the middle mingeal artery, one of the arteries commonly torn in instances of intracranial bleeding.
In light of these facts, his differential diagnosis was "concussion, contusion, and the possibility of intracranial bleeding." 2 In an attempt to determine which diagnosis was correct, he performed several neurological tests as well as skull x-rays. Based upon the results of these tests, Dr. Richards ultimately diagnosed Ms. Martin as having a concussion.
Dr. Richards conveyed this information to Mr. Martin. In addition, he explained that for a patient in Ms. Martin's condition, the appropriate courses of action were either to send them home under the care of a responsible adult, or to admit them to the hospital for observation. Dr. Richards felt that Ms. Martin should remain at FAMH and convinced Mr. Martin of the same.
In his conversation with Mr. Martin, Dr. Richards did not advise Mr. Martin that FAMH had a CT scanner on premises, nor did he tell Mr. Martin that such machines are able to diagnose serious head injuries. In addition, Dr. Richards did not inform Mr. Martin that should a neurological complication such as intracranial bleeding arise, while his daughter was at FAMH, she would have to be transferred to a different hospital because FAMH did not have a neurosurgeon.
Following his conversation with Mr. Martin, Dr. Richards contacted Dr. Hansen in order to have Ms. Martin admitted to FAMH (as the emergency room physician, Dr. Richards lacked authority to admit patients). Dr. Richards informed Dr. Hansen only that Ms. Martin: 1) had run into the back of a dump truck; 2) had suffered a brief period of unconsciousness; 3) had one episode of vomiting; 4) had normal bruises and scrapes. Upon being advised of this information Dr. Hansen authorized her admission. Dr. Hansen was at home when Dr. Richards contacted him, and he did not speak directly with Mr. Martin at this time.
At 12:15 a.m. on the morning of July 11, 1985, a nurse examining Ms. Martin found her somewhat irritable and uncommunicative. The nurse did not report this observation to either Dr. Richards or Dr. Hansen. One hour later, the nurse found Ms. Martin unresponsive and exhibiting a "blown" pupil in her left eye. The medical testimony at trial indicated that a "blown" pupil is a symptom of intracranial bleeding. The attending nurse immediately advised Dr. Richards of Ms. Martin's deteriorating condition. Dr. Richards in turn notified Dr. Hansen, who arranged for Ms. Martin to be taken via helicopter to the University of Wisconsin Hospital in Madison.
CT scans performed at UW Hospital revealed the existence of a large epidural hematoma in Ms. Martin's brain. Emergency surgery was performed at 3:55 a.m. A second operation was required later that day to relieve continued bleeding. These procedures were not completely successful. Although Ms. Martin survived, she is today a partial spastic quadriplegic.
At trial, the parties offered conflicting expert medical testimony on the following issues: 1) whether the diagnosis and/or treatment of Ms. Martin by Doctors Richards and Hansen, particularly their failure to obtain a CT scan and their decision to admit Ms. Martin to FAMH, was negligent, 2) whether the care provided by FAMH staff, most notably those nurses who observed Ms. Martin, was negligent, and 3) whether Doctors Richards and Hansen failed to provide Mr. Martin the information required by sec. 448.30, Stats.
The jury determined that Doctors Richards and Hansen were not negligent in either their diagnosis or their treatment of Ms. Martin. With respect to the nurses, the jury found that their conduct was negligent, but that it was not a causal factor in Ms. Martin's injuries. The jury did, however, find that Dr. Richards negligently failed to inform Mr. Martin as to the existence of alternate forms of care and treatment. Accordingly, the jury awarded the Martins almost 5 million dollars in damages.
Following the verdict, the circuit court granted Dr. Richards' motion to dismiss that portion of the Martins' complaint relative to informed consent. The court believed that under sec. 448.30, Stats., the doctors had no duty to inform Mr. Martin about diagnostic or treatment alternatives with respect to what it characterized as the "extremely remote" possibility that his daughter would develop an intracranial bleed. 3
The court of appeals reversed, taking issue with the circuit court's analysis of what constitutes an "extremely remote" possibility for purposes of sec. 448.30, Stats. "In view of the serious consequences of an epidural hematoma, we conclude as a matter of law that a one to three in a hundred chance that a patient suffering a concussion will develop intracranial bleeding is not an 'extremely remote possibility.' " Martin v. Richards, 176 Wis.2d 339, 350, 500 N.W.2d 691 (Ct.App.1993). The court of appeals remanded the case to determine whether Dr. Hansen also breached his duty to inform, and whether the doctors' failure to provide the requisite information was a cause of Ms. Martin's injuries.
The first issue we address is whether the circuit court erred when it determined as a matter of law that Dr. Richards did not have a duty under sec. 448.30, Stats., to inform Mr. Martin of alternate viable medical treatments. This requires us to determine whether there was any credible evidence for the jury to determine whether Dr. Richards was negligent in failing to inform Mr. Martin: 1) that if Ms. Martin developed neurological complications from the head injury she would have to be transferred to a facility in...
To continue reading
Request your trial
-
Verba v. Ghaphery
...Hosp., 832 S.W.2d 898 (Mo. 1992); Etheridge v. Medical Ctr. Hosps., 237 Va. 87, 376 S.E.2d 525 (1989); Martin ex rel. Scoptur v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995). By contrast, a minority of courts have invalidated damage cap statutes. See Smith v. Schulte, 671 So. 2d 1334 (Al......
-
State v. Konrath
...equivalent of the due process ... clause[ ] of the Fourteenth amendment to the United States constitution.' " Martin v. Richards, 192 Wis.2d 156, 198 n. 6, 531 N.W.2d 70 (1995)(quoted source omitted).10 At the time of oral argument, counsel for both parties acknowledged that the seizure ord......
-
State v. Chrysler Outboard Corp.
...the provisions retroactively; or (2) the language reveals such intent by necessary implication. See, e.g., Martin v. Richards, 192 Wis.2d 156, 199-200, 531 N.W.2d 70 (1995); Chappy v. LIRC, 136 Wis.2d 172, 180, 401 N.W.2d 568 (1987); State v. ILHR Dept., 101 Wis.2d 396, 403, 304 N.W.2d 758 ......
-
Aicher v. WI Patients Compensation Fund
...One of the common-law rights recognized by the legislature is the right to bring a medical malpractice claim. Martin v. Richards, 192 Wis. 2d 156, 206-09, 531 N.W.2d 70 (1995). Between 1975 and 1979, the legislature modified the terms under which persons can initiate medical malpractice act......
-
Defending the informed consent case: analyzing the materiality of the risk, causation, and expert testimony requirements.
...(W. Va. 1985). Wisconsin Applies the objective test of causation. WIS. STAT. [subsection] 448.30 (2004); Martin by Scoptur v. Richards, 531 N.W.2d 70, 77 (Wis. 1995); Hannemann v. Craig Boyson, D.C., 681 N.W.2d 561 (Wis. App. Professional/Physician-Oriented Standard Alabama Applies the obje......
-
CERTIFICATION COMES OF AGE: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF COOPERATIVE JUDICIAL FEDERALISM.
...would not follow an appellate court decision that had interpreted broadly the doctrine of informed consent), with Martin v. Richards, 531 N.W.2d 70, 78-79 (Wis. 1995) (adopting view of the appellate (11) 363 U.S. 207 (1960). (12) Id. at 208. (13) Id. (14) Id. at 209. (15) Id. (16) Id. at 20......
-
Commentary: Wisconsin Supreme Court decision addresses child support arrears.
...opinion authored by Justice Patience D. Roggensack, disagreed. The court applied the balancing test required by Martin v. Richards, 192 Wis.2d 156, 531 N.W.2d 70 (1995), to determine whether retroactive application of these statutes comports with due process. The results of the balancing te......
-
Briefs: Judge seeks election to county executive+.
...basis? Does a state agency have "private interests" that can be weighed under the balancing test set forth in Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995)? From Dunn County. 00-2592 M. Rivera v. B. Vandeboom, et al. Issues: What standard is a court to apply in determining wheth......