Steinberg v. Jensen
| Decision Date | 15 December 1993 |
| Docket Number | No. 92-2475,92-2475 |
| Citation | 186 Wis.2d 237,519 N.W.2d 753 |
| Parties | Marion STEINBERG and Ralph Steinberg, Plaintiffs-Appellants-Cross Respondents, Miller Brewing Company, Involuntary-Plaintiff-Co-Appellant-Cross Respondent, v. Dr. Thomas R. JENSEN, Wisconsin Health Care Liability Insurance Plan, Physicians Insurance Company of Wisconsin and Wisconsin Patients Compensation Fund, Defendants-Respondents-Cross Appellants. d . Oral Argument |
| Court | Wisconsin Court of Appeals |
Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.
Marion and Ralph Steinberg appeal from a judgment entered in a medical malpractice case after a jury found that Dr. Thomas R. Jensen was negligent, but not causally so. Dr. Jensen, Wisconsin Health Care Liability Insurance Plan, Physicians Insurance Company of Wisconsin and Wisconsin Patients Compensation Fund (defendants) cross-appeal from that part of the judgment finding that the Steinbergs' past and future damages totaled $10.8 million.
On the direct appeal, the Steinbergs raise the following issue for our consideration: Whether a pattern of informal discovery, highlighted by several ex parte contacts between a plaintiff's treating physicians, as fostered by the defense attorney for the defendants, violates the rule enunciated in State ex rel. Klieger v. Alby, 125 Wis.2d 468, 373 N.W.2d 57 (Ct.App.1985) and, if so, whether such violation mandates some type of sanction. We conclude that the rule enunciated in Klieger, which prohibits private conferences that have the potential to breach the physician-patient privilege, was violated in this case and required sanction and, therefore, we reverse and remand for a new trial. 1
In their cross-appeal, defendants present four issues for review: (1) whether the jury award regarding future medical expenses was excessive; (2) whether the trial court erred in limiting cross-examination of the plaintiffs' economist; (3) whether the jury award for past and future pain, suffering and disability was excessive; and (4) whether the jury awards to Ralph Steinberg for past and future nursing services and loss of society and companionship are excessive. Because we resolve each issue in favor of sustaining the damages award, we affirm that part of the judgment awarding the Steinbergs a total of $10.8 million.
Marion Steinberg is a sixty-four-year-old woman who is permanently and severely brain damaged. Mrs. Steinberg suffered neurological injuries in August 1989, while under the medical care of Dr. Jensen. Mrs. Steinberg had initially visited Dr. Jensen in April 1989, in order to receive treatment for shingles. During the course of his physical examination, Dr. Jensen found that Mrs. Steinberg had a markedly elevated blood pressure. Over the next several months, Dr. Jensen prescribed a variety of antihypertensives in an effort to find an agent which was both effective and acceptable to Mrs. Steinberg.
On August 11, 1989, Dr. Jensen prescribed an antihypertensive drug called Maxzide. During the week following the prescription of this drug, Mrs. Steinberg called Dr. Jensen on several occasions complaining of fatigue, upset stomach, diarrhea, cramps, restlessness, absence of bowel movements and inability to urinate. On the evening of August 17, 1989, Mr. Steinberg called Dr. Jensen to inform him that his wife's condition had worsened in that she was very tired, was unable to have bowel movements or urinate and was drinking increased amounts of water.
On August 18, 1989, Dr. Jensen examined Mrs. Steinberg in his office and diagnosed a bladder distension and noted that she had most likely suffered a seizure the previous night. He performed a catheterization and obtained a large amount of urine. He then admitted her to West Allis Memorial Hospital (WAMH).
During this hospitalization, Dr. Jensen called in nine consulting physicians, three of whom were Drs. Feridoun Beroukhim, Walter K. Wong and Matthew Hanna. At all times relevant to the present lawsuit, Dr. Jensen continued as Mrs. Steinberg's attending physician.
Drs. Beroukhim and Wong, both neurologists, examined Mrs. Steinberg on August 18, 1989. Both doctors diagnosed her as having hyponatremia (a sodium deficiency) and recommended a corrective course of action. Shortly thereafter, Mrs. Steinberg suffered a second seizure and became unresponsive. She was then transferred to the intensive care unit.
The following day, Dr. Hanna, a nephrologist (kidney specialist), examined Mrs. Steinberg. By Sunday morning, August 20, Mrs. Steinberg was alert and coherent. Her sodium level was reported as being totally corrected. On Monday, however, she again became unresponsive. When she eventually awoke, she was severely brain damaged.
Following her release from WAMH on September 18, 1989, Mrs. Steinberg was treated at several other institutions, including Milwaukee County Medical Complex (MCMC), all without success in restoring lost brain function. Mrs. Steinberg eventually returned home to be in the care of her family members.
On January 2, 1991, the Steinbergs filed a lawsuit against Dr. Jensen and his insurers for negligence by medical malpractice. During the ensuing discovery, the Steinbergs deposed Dr. Jensen and learned that while he was Mrs. Steinberg's attending physician, he had consulted with Drs. Beroukhim, Wong and Hanna concerning the appropriate treatment necessary for Mrs. Steinberg's condition. The Steinbergs subsequently deposed the three consulting doctors. The depositions revealed that, following the initiation of the lawsuit, several informal communications had occurred between the consulting doctors, Dr. Jensen and defense counsel.
Specifically, the depositions of Drs. Beroukhim and Wong disclosed that Dr. Jensen had been instructed by his defense counsel to discuss Mrs. Steinberg's case with them prior to their depositions. As noted in Dr. Beroukhim's deposition:
Oh, I have to mention that [Dr. Jensen] also--I think the core of discussion--the reason he came here was the fact that he said that his attorney, Mr. Kelly, had requested him to talk to us. He wants to talk to us regarding this case, and he asked him to talk to us prior to that.
Consequently, Dr. Jensen called both Drs. Beroukhim and Wong and arranged for the three of them to meet and discuss the case.
The meeting apparently lasted between thirty-to-forty minutes. Dr. Jensen explained that Drs. Beroukhim and Wong might become named parties in the lawsuit. During the conversation, the following topics relating to Mrs. Steinberg's condition were discussed: appropriateness of the overall treatment; relationship of the sodium replacement and neurological impairment; the patient's reaction to medication and the replacement of electrolytes during treatment. Dr. Wong testified that Dr. Jensen informed him that the care given Mrs. Steinberg was appropriate and that Dr. Jensen saw no reason for the lawsuit. Dr. Jensen further informed Dr. Wong that there was insufficient evidence to prove the Steinbergs' allegation that Mrs. Steinberg was afflicted with Central Pontine Myelinolysis (CPM). 2
Following this informal meeting, Drs. Beroukhim and Wong reviewed Mrs. Steinberg's medical records from MCMC, as well as the transcript of Dr. Jensen's deposition. Dr. Jensen's attorney had provided these materials to counsel for both Drs. Beroukhim and Wong. There is no dispute that Drs. Beroukhim and Wong had no involvement with the care of Mrs. Steinberg while she was being treated at MCMC. Dr. Beroukhim also noted that, as a direct impetus of the informal discussions between the other doctors, in an effort to be better prepared for his ensuing deposition, he performed outside research including a MEDLINE search. 3
Prior to Dr. Hanna's deposition on August 7, 1991, counsel for Dr. Jensen furnished him with Mrs. Steinberg's complete medical records from WAMH. During the course of his deposition, Dr. Hanna denied ever speaking to Dr. Jensen or Dr. Jensen's counsel. Dr. Hanna's counsel objected to any questions directed to the doctor that required him to elicit opinion testimony concerning Mrs. Steinberg's injuries and the treatment thereof. The deposition revealed that Dr. Hanna had examined Mrs. Steinberg only on August 19 and 20, 1990, while she was hospitalized at WAMH. Shortly after his deposition, Dr. Hanna volunteered to be an expert witness on behalf of Dr. Jensen.
On September 1, 1991, as a result of the revelation about the ex parte contacts between the treating physicians, the Steinbergs amended their complaint to include a punitive damage claim for denial of their right to a fair trial due to the potential breaches of confidentiality by Mrs. Steinberg's treating physicians. 4 On February 10, 1992, the trial court granted a motion by the defendants to dismiss the breach of confidentiality claim. Although it granted the defendants' request to dismiss the claim, the trial court nonetheless recognized that there might be a problem concerning the ex parte contacts:
[W]hile I'm not going to decide at this particular moment whether Dr. Jensen's conduct in contacting these doctors was appropriate or inappropriate it may be that it merits some type of sanction and some other kind of remedy under our discovery laws and since I have not been asked to do that today I'm not going to do it.
During the course of the argument on the motion, Dr. Jensen's counsel denied that a violation of the rule set forth in Klieger had occurred. As paraphrased by his counsel, all Dr. Jensen did was go to Drs. Beroukhim and Wong and say "Hey I'm being sued, and you might be too," which is of course, not a Klieger violation. Defense counsel also told the trial court 5
The trial court subsequently ordered Dr. Jensen's counsel to provide the...
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