Nowatske v. Osterloh

• Decision Date: 03 April 1996
• Docket Number: No. 93-1555,93-1555
• Citation: 549 N.W.2d 256,201 Wis.2d 497
• Parties: Kim NOWATSKE and Julie Nowatske, Plaintiffs-Appellants, * v. Mark D. OSTERLOH, M.D., The Medical Protective Company and Wisconsin Patients Compensation Fund, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 256

549 N.W.2d 256

201 Wis.2d 497

Kim NOWATSKE and Julie Nowatske, Plaintiffs-Appellants,^* v. Mark D. OSTERLOH, M.D., The Medical Protective Company and Wisconsin Patients Compensation Fund Defendants-Respondents.

No. 93-1555.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 29, 1996.

Opinion Released April 3, 1996.

Opinion Filed April 3, 1996.

[201 Wis.2d 500] On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of David M. Skoglind, [201 Wis.2d 501] of Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, S.C., Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of Paul H. Grimstad and John F. Mayer of Nash, Spindler, Dean & Grimstad, Manitowoc.

On behalf of the Wisconsin Academy of Trial Lawyers, an amicus curiae brief was submitted by Mark L. Thomsen of Cannon & Dunphy, S.C., Milwaukee.

Before BROWN, NETTESHEIM and SNYDER, JJ.

NETTESHEIM, Judge.

Kim and Julie Nowatske appeal from a trial court judgment dismissing their complaint following a jury determination that Dr. Mark D. Osterloh was not negligent in his treatment of Kim for a retinal detachment condition.

On appeal, the Nowatskes challenge a trial court evidentiary ruling which allowed their medical expert witness to be impeached with evidence that the expert was named as a defendant in two prior unrelated medical malpractice actions: one dismissed and one pending. We conclude that such evidence is inadmissible for impeachment purposes under § 906.08, STATS., and that the trial court erred in admitting the evidence. However, we hold that the error was harmless in this case. We also reject the Nowatskes' further arguments that the trial court erred by allowing a witness to use an ophthalmoscope to perform a brief in-court demonstration and that there was no credible evidence to support the verdict. We affirm the judgment.

BACKGROUND

This action arises from the Nowatskes' April 1991 complaint alleging that Osterloh negligently treated Kim in January 1989 when Osterloh used his finger, rather than a tonometer, to measure Kim's intraocular

                pressure.  The Nowatskes alleged that Osterloh's "inadequate" postoperative examination negligently failed to confirm whether Kim had vision in his right eye.  A jury rejected the Nowatskes' claim.  We previously certified this case to the Wisconsin Supreme Court on two issues:  (1) whether the pattern medical malpractice jury instruction, WIS J I--CIVIL 1023, accurately states the law of medical malpractice;  and (2) whether the type of impeachment which occurred in this case is permissible.  The supreme court accepted this case only on the first issue.  The court upheld the pattern instruction and remanded the remaining issues for our review. 1  See Nowatske v. Osterloh, 198 Wis.2d 419, 424, 543 N.W.2d 265, 266 (1996).  Because the facts are already given in detail in the supreme court's decision, see id. at 424-27, 543 N.W.2d at 266-68, we will not separately state them here.  Instead, we will allude to only those which are necessary to the matter under discussion
                

DISCUSSION

Impeachment Evidence

The Nowatskes contend that the trial court improperly allowed Osterloh to impeach Dr. Jay Fleischman, one of their expert medical witnesses, under § 906.08(1), STATS. ² The trial court denied the Nowatskes' motion in limine which sought to prevent any reference during trial to the fact that two medical malpractice claims, unrelated to the present action, had previously been filed against Fleischman. As a result, Fleischman was questioned on direct and cross-examination about these actions.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Section 904.01, STATS. Although evidence may be relevant, it may nonetheless be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, the misleading of the jury or other considerations. Section 904.03, STATS. Such evidentiary determinations are within the trial court's broad discretion. State v. Lindh, 161 Wis.2d 324, 348, 468 N.W.2d 168, 176 (1991). This court will reverse an evidentiary ruling only if the trial court's determination represents a prejudicial misuse of discretion. See id. at 348-49, 468 N.W.2d at 176.

Fleischman was cross-examined as follows:

Q. All right, Doctor, I think you told us this morning you personally have been sued for medical negligence twice in response to one of your counsel's questions?

A. I have been named in two lawsuits.

Q. The first lawsuit you were named in has been dismissed?

A. Yes.

Q. I take it it was without merit?

A. Correct.

Q. Doctors sometimes get sued without merit, do you agree?

A. Yes.

Q. And the second suit is still pending?

A. That's correct.

Q. We don't know what the outcome of that lawsuit will be?

A. No, we don't.

We agree with the Nowatskes that the trial court erred by allowing this evidence to be admitted at trial. We find Lindh instructive on the issue and reject Osterloh's argument that the supreme court's only holding in that case was that the court of appeals erred by substituting its discretion for that of the trial court's. See id. In Lindh, a criminal defendant sought to introduce evidence under § 906.08(1), STATS., that allegations of professional misconduct had been brought against the state's psychiatric expert. See Lindh, 161 Wis.2d at 358, 468 N.W.2d at 180. Reversing the court of appeals, the supreme court held that the trial court did not err in excluding the evidence, stating:

The character of a witness may be impeached only in regard to matters which go directly to his [or her] reputation for truth and veracity. We have long considered that on cross-examination into the character of a witness, use of irrelevancies, insinuating that a person is of bad moral character, tending to degrade him [or her] in the eyes of the jury, is not a proper impeachment device. Virtually by definition, such evidence is not relevant, tending only to prejudice the jury against the witness.

Id. (citations omitted).

In this case, evidence of the prior malpractice action and the pending action did not cast light on Fleischman's character for truthfulness or untruthfulness. See id.; see also § 906.08(1), STATS. The criterion of relevancy is whether the evidence sought to be introduced would shed any light on the subject of inquiry. Lindh, 161 Wis.2d at 348, 468 N.W.2d at 176. The subject of inquiry in this case was whether Osterloh was or was not negligent in treating Kim. Before cross-examination will be allowed, there must be a reasonable relationship between the evidence sought to be introduced and the proposition to be proved. Id. There was no such connection in this case between Fleischman's role as a defendant in the prior medical malpractice actions and his opinion testimony in this case.

The testimony elicited from Fleischman merely inquired whether he had been the subject of the malpractice actions. There was no testimony that in either of those proceedings he had displayed a character for untruthfulness such that his credibility could reasonably be questioned in this case. On direct examination, Fleischman indicated that the first malpractice claim was commenced on behalf of a plaintiff who died of heart problems, but that the action against Fleischman had been dismissed without any determination as to his alleged negligence. ³ The cross-examination established, for a second time, the filing of that action and that the action had been dismissed as against Fleischman. Fleischman's testimony regarding the second case was limited to the fact that the case was still pending. The cumulative effect of this testimony did not have any bearing on Fleischman's credibility, and reference to the actions did not detract from his expertise and ability to render an opinion regarding the Nowatskes' claim against Osterloh. Instead, the testimony went only to whether similar allegations had been made against Fleischman, which does not impact on his credibility as a witness. Section 906.08, STATS., permits the impeachment of a witness "only in regard to matters which go directly to his [or her] reputation for truth and veracity." Lindh, 161 Wis.2d at 358, 468 N.W.2d at 180.

Thus, we conclude that the trial court erred when it admitted evidence of the prior unrelated medical malpractice actions. However, this finding of error does not end our inquiry. See Town of Geneva v. Tills, 129 Wis.2d 167, 184, 384 N.W.2d 701, 708 (1986). Section 805.18(2), STATS., provides that no judgment shall be reversed or set aside or a new trial granted "unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party." (Emphasis added.) A reversal is required under § 805.18(2) only if the result might, within reasonable probabilities, have been more favorable to the complaining party had the error not occurred. Heggy v. Grutzner, 156 Wis.2d 186, 196, 456 N.W.2d 845, 850 (Ct.App.1990). This requires that we weigh the effect of the inadmissible evidence against the totality of the credible evidence supporting the verdict. Tim Torres Enters. v. Linscott, 142 Wis.2d 56, 78, 416 N.W.2d 670, 679 (Ct.App.1987).

Here, all the jury learned from the improper questioning was that Fleischman had been named as a defendant in two prior actions, one which had been dismissed and another which was still pending. Furthermore, the cross-examination established that the dismissed action "was without merit," a statement which favors, rather than discredits, Fleischman. The cross-examination also established that "Doctors sometimes get sued without merit," a statement which also favors, rather than discredits,...