McGeshick v. Choucair

• Decision Date: 15 November 1993
• Docket Number: No. 92-3445,92-3445
• Citation: 9 F.3d 1229
• Parties: Raymond L. McGESHICK, Plaintiff-Appellant, and Frank J. Kelley, Attorney General for the State of Michigan, and Michigan Department of Social Services, Intervenors, v. A.K. CHOUCAIR, M.D., Marshfield Clinic, and Wisconsin Patients Compensation Fund, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1229

9 F.3d 1229

Raymond L. McGESHICK, Plaintiff-Appellant and Frank J. Kelley, Attorney General for the State of Michigan and Michigan Department of Social Services, Intervenors, v. A.K. CHOUCAIR, M.D., Marshfield Clinic, and Wisconsin Patients Compensation Fund, Defendants-Appellees.

No. 92-3445.

United States Court of Appeals Seventh Circuit.

Argued May 6, 1993.

Decided Nov. 15, 1993.

Vincent R. Petrucelli (argued), Joseph C. Sartorelli, Petrucelli & Petrucelli, Iron River, MI, for plaintiff-appellant.

Steven J. Caulum (argued), David J. Pliner, Bell, Metzner, Gierhart & Moore, Madison, WI, for defendants-appellees.

Richard T. O'Neill, Office of the Atty. Gen., Lansing, MI, for intervenors.

Before POSNER, Chief Judge, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Plaintiff Raymond McGeshick brought this diversity action pursuant to 28 U.S.C. Sec. 1332(a) for injuries he suffered as a result of alleged medical malpractice on the part of the defendants, Dr. A.K. Choucair and the Marshfield Clinic ("the Clinic"). The district court directed a verdict in favor of Marshfield Clinic, but allowed the negligence claims against Dr. Choucair to proceed to trial. The jury returned a verdict in favor of Dr. Choucair. Mr. McGeshick now appeals from the directed verdict and the jury verdict. We affirm.

I BACKGROUND

A. Facts

Mr. McGeshick began to experience lower back pain and stiffness in his knees in 1985. He was treated by a local physician, Dr. Ray Koivunen, near his home in Michigan. Dr. Koivunen referred Mr. McGeshick to several specialists. By the spring of 1987, the referral physicians believed that Mr. McGeshick suffered from a progressive myelopathy, a disease of the spinal cord; however, they were unable to determine the cause. Trial Proceedings III at 32. At that time, Dr. Koivunen referred Mr. McGeshick to Marshfield Clinic, which specializes in neurological disorders.

On May 26, 1987, Mr. McGeshick saw Dr. Choucair at the Clinic. After examining Mr. McGeshick that day, Dr. Choucair could not rule out any of the possible causes of Mr. McGeshick's myelopathy. Trial Proceedings II at 94-95. Among the possible causes were: trauma, tumors of the spinal cord, cancer outside of the nervous system, vasculars (including arterial venous malformations ("AVM")), inflammatory causes and multiple sclerosis, strict infections of the spinal cord, granulomatous causes (a tumor mass not related to cancer), degenerative causes including Lou Gehrig's disease, congenital causes such as a cavity inside the spinal cord, nutritional deficiencies, toxins, and heredity. Trial Proceedings III at 20-26.

In the fall of 1987, Dr. Choucair ordered a myelogram, a screening test for certain kinds of myelopathy. Dr. William Manor, a Marshfield Clinic radiologist, conducted this test, along with a CT scan, on November 4, 1987. According to Dr. Manor's interpretation, the myelogram showed an anomalous shadow in the lumbar area, thoracic cord atrophy, and spondylosis in the neck. Dr. Manor did not believe anything in the myelogram suggested an AVM. However, he recommended an MRI because of his concern for the cord atrophy he detected. Dr. Choucair ordered an MRI and sent along the Marshfield myelogram results.

The MRI was conducted at the University of Wisconsin Hospitals, and a report was sent by the interpreting neuroradiologist, Dr. Charles Strother, to Dr. Choucair. Dr. Strother commented that the anomalous vascular shadow spotted by Dr. Manor "may simply represent normal vascular structure that is well seen simply because of the good quality of the myelogram. If there are clinical signs or symptoms of dural or intraspinal AV fistula or malformation, angiography would be necessary to completely exclude this possibility [AVM]." Appellant's App. at A-15. Several experts testified that this was not a conclusive statement that AVM was suspected or that angiography was recommended. Based on this statement, Dr. Choucair did not recommend angiography to exclude the possibility of AVM.

Dr. Choucair saw Mr. McGeshick on May 13, 1988, August 26, 1988, and February 17, 1989. On each of these visits, Dr. Choucair examined Mr. McGeshick. Following the first two examinations, Dr. Choucair concluded that there were no significant changes in Mr. McGeshick's condition from November 4, 1987. He, however, detected changes on Mr. McGeshick's third visit. As a result of these changes, decreased urinary function and weakening in the left foot, Dr. Choucair ordered a second MRI examination. The MRI was originally scheduled for March 22, 1989, but was cancelled for insurance reasons. The MRI was rescheduled for April 14, 1989, and later, May 3, 1989, but the MRI machine was not operating on either of these occasions. The MRI then was rescheduled for May 24, 1989. Mr. McGeshick returned to the Marshfield Clinic on May 16, 1989 because he was experiencing paralysis of the lower body. Exploratory surgery was conducted on May 25, 1989; the surgery revealed that a spinal AVM was the cause of Mr. McGeshick's myelopathy. Mr. McGeshick is permanently paralyzed as a result of the AVM.

B. Trial Proceedings

During trial, Mr. McGeshick proffered two different evidentiary submissions that were excluded by the trial court. First, the trial court refused to allow Mr. McGeshick to testify as to the number of times he sought treatment at the Marshfield Clinic. The court ruled that, because this information was made part of the stipulated facts that were read to the jury, the presentation of this evidence would be cumulative. Second, the trial court refused to allow the jury to hear evidence that Dr. Choucair previously had failed board certifying exams. The trial court ruled that the probative value was outweighed by the prejudicial impact under Federal Rule of Evidence 403.

After all of the evidence was presented, the Clinic moved for a directed verdict on the claim that it negligently failed to perform timely the MRI. The trial court granted this motion over objection. The court stated that Mr. McGeshick had failed not only to establish who at the clinic was negligent, but also to establish how the alleged negligence affected Mr. McGeshick's condition.

Finally, the court, also over objection, refused to give an instruction that Dr. Choucair had a duty to inform Mr. McGeshick about the possible causes of his myelopathy and the possibility of angiography as a diagnostic measure to exclude one of these causes. The court believed that this instruction was inappropriate because nothing in the evidence raised the issue of informed consent. Instead, the court gave the jury a general negligence instruction. The jury deliberated for four hours and returned a verdict in favor of Dr. Choucair.

Mr. McGeshick alleges that the district court's actions constitute reversible error. We turn first to the issue of informed consent.

II ANALYSIS

A. Informed Consent

Mr. McGeshick first alleges that the district court erred in failing to give his proposed jury instruction on informed consent. Specifically, he claims that Dr. Choucair owed him a duty "to explain to him what an angiogram was and that it was a viable, alternate medical method that could serve as a diagnostic tool." Appellant's Br. at 24. Mr. McGeshick relies on Wisconsin common law and statutes, but most importantly on a recent Wisconsin Court of Appeals case, to support his position.

In reviewing a district court's decision accepting or rejecting proposed jury instructions, "we shall not reverse ... unless, ' "considering all the instructions, the evidence and the arguments," it appears that the "jury was misled ... [and its] understanding of the issues was seriously affected to the prejudice of the complaining party." ' " Northbrook Excess & Surplus Ins. Co. v. Proctor & Gamble Co., 924 F.2d 633, 638 (7th Cir.1991) (citations omitted). We therefore look to Wisconsin law to determine whether the jury was misled by the trial court's failure to include an informed consent instruction.

We note, first, that a federal court sitting in diversity must apply the law that would be applied in this context by the Wisconsin Supreme Court. Green v. J.C. Penney Auto. Ins. Co., 806 F.2d 759, 761 (7th Cir.1986). We are obliged to consider the holdings of state appellate courts, but are not bound to do so if we have good reasons for diverging from those decisions. See Eljer Mfr., Inc. v. Liberty Mut. Ins. Co., 972 F.2d 805, 814 (7th Cir.1992) (stating court is not bound by intermediate state appellate court decisions, but must have a reason for predicting that the state supreme court will reject analysis), cert. denied, --- U.S. ----, 113 S.Ct. 1646, 123 L.Ed.2d 267 (1993); Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1176 (7th Cir.1990) ("We are not required to follow even the holdings of intermediate state appellate courts if persuaded that they are not reliable predictors of the view the state's highest court would take."). In deciding how the Supreme Court of Wisconsin would proceed, we look first to its past statements on informed consent.

Wisconsin law on the extent of the duty to inform has been somewhat sparse. In Trogun v. Fruchtman, 58 Wis.2d 569, 207 N.W.2d 297 (1973), the Supreme Court of Wisconsin drastically changed its law on informed consent. In that case, a patient, Nathan Trogun, brought suit against his physician, Robert Fruchtman. Mr. Trogun alleged that Dr. Fruchtman had failed to inform him about the side effects of medication prescribed as treatment for Mr. Trogun's tuberculosis. The court recognized a more appropriate basis for the doctrine of informed consent, previously treated as sounding in battery, was negligence. "[W]e conclude," stated the court, "[that] it is preferable to affirmatively recognize a legal duty, bottomed upon a negligence theory of liability, in cases wherein it is alleged the patient-plaintiff was not informed adequately of the...