Zintek v. Perchik

• Decision Date: 05 March 1991
• Docket Number: Nos. 90-0838,90-1795,s. 90-0838
• Citation: 163 Wis.2d 439,471 N.W.2d 522
• Parties: Susan ZINTEK, Arthur Zintek, Northwestern Mutual Life Insurance Company, Wausau Insurance Companies and Megan Zintek and Erin Zintek, minors, by their guardian ad litem, Plaintiffs-Respondents, v. Robert PERCHIK, M.D., Gerald Dorff, M.D., Wisconsin Health Care Liability Insurance Plan, The Professionals Insurance Company and Wisconsin Patients Compensation Fund, Defendants- Appellants. d . Oral Argument
• Court: Wisconsin Court of Appeals

Page 522

471 N.W.2d 522

163 Wis.2d 439

Susan ZINTEK, Arthur Zintek, Northwestern Mutual Life Insurance Company, Wausau Insurance Companies and Megan Zintek and Erin Zintek, minors, by their guardian ad litem Plaintiffs-Respondents, v. Robert PERCHIK, M.D., Gerald Dorff, M.D., Wisconsin Health Care Liability Insurance Plan, The Professionals Insurance Company and Wisconsin Patients Compensation Fund Defendants- Appellants.^d Nos. 90-0838, 90-1795.

Court of Appeals of Wisconsin.

Oral Argument March 5, 1991.

Opinion Released May 29, 1991.

Opinion Filed May 29, 1991.

Donald R. Peterson and Judith Pinchar, argued, Peter F. Mullaney of Peterson, Johnson & Murray, S.C., on brief, Milwaukee, for defendants-appellants.

J. Ric Gass, argued, Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and Mary L. Woehrer, J.D., Wauwatosa, on brief, for plaintiffs-respondents.

Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

NETTESHEIM, Presiding Judge.

In this medical malpractice action, a jury awarded Susan Zintek $2,285,000 in damages. ^{1 1} The trial court also awarded Susan $96,047 in taxable costs, disbursements and postverdict interest. The principal defendants-appellants are Dr. Robert Perchik and Dr. Gerald Dorff, two physicians who treated Susan's cardiac condition. ²

The appellants raise eight issues on appeal: (1) whether the special verdict should have inquired as to the alleged negligence of two non-party physicians who also rendered treatment to Susan; (2) whether the trial court correctly instructed the jury as to the appropriate standard of care; (3) whether the trial court's jury reinstruction on the five-sixth's rule "coerced" a verdict; (4) whether the trial court properly refused the appellants' request to conduct informal ex parte discovery discussions with Susan's then-treating physicians; (5) whether the trial court properly awarded Susan certain taxable costs and disbursements, including interest on the verdict; (6) whether the evidence supports Susan's past wage loss award and whether this award is excessive; (7) whether the trial court properly excluded evidence of Susan's disability benefits; and (8) whether the trial court properly denied the appellants a new trial in the interest of justice.

We are unpersuaded by the appellants' arguments. We affirm the trial court's judgment and order denying postverdict relief.

FACTS

We recount the facts in some detail. On the evening of August 1, 1985, Susan began experiencing numbness in her jaw, together with pain in her chest and left arm. After consulting with Susan's obstetrician, ³ Susan's husband, Arthur, drove her from their home in Cedarburg to St. Joseph's Hospital (St. Joseph's) in Milwaukee, some thirty to forty minutes away.

The Zinteks arrived at St. Joseph's at approximately 10:00 p.m. By this time, Susan's pain had subsided. Dr. Perchik, an emergency room physician, checked Susan's vital signs, placed her on a heart monitor and ordered an electrocardiogram (EKG). Dr. Perchik concluded that the EKG results did not show signs of abnormality. Accordingly, he discharged Susan from St. Joseph's at approximately 10:35 p.m.

During the journey back to Cedarburg, Susan's chest pain returned with greater intensity. The Zinteks returned to St. Joseph's, arriving at the emergency room this second time about 11:34 p.m. Susan was again seen by Dr. Perchik who determined that she was having an acute myocardial infarction (heart attack).

Because St. Joseph's policy provided that emergency room physicians may not admit a patient to the hospital, Dr. Perchik asked Arthur who should be called to admit Susan. Arthur told Dr. Perchik that he knew and had been a patient of Dr. Gerald Dorff. Dr. Dorff is a doctor of internal medicine, specializing in the treatment of infectious diseases. Dr. Perchik called Dr. Dorff, who agreed to admit Susan to St. Joseph's intensive care unit. Accordingly, Susan was admitted and then transferred from the emergency room to the intensive care unit shortly after midnight.

The evidence is in conflict regarding certain critical events occurring between Susan's admission shortly after midnight and Dr. Dorff's first examination of Susan some five hours later. Specifically, three interrelated matters are unclear: when the decision was made that a cardiologist should be called, who contacted the cardiologist, and, most importantly, when this contact was made.

Dr. Dorff testified that after making an admission by telephone, it was his usual practice to call the resident physician on duty with St. Joseph's teaching service, ask the resident to examine the patient, and report back to him by telephone. Dr. Mark Hermans was the resident on duty the early morning of Susan's admission. Dr. Hermans' deposition testimony indicated that he called Dr. Dorff to discuss Susan's condition, and that Dr. Dorff agreed a cardiologist should be consulted.

Following this conversation, Dr. Hermans called Dr. Michael Reid, a cardiologist. Dr. Hermans' testimony offers two different versions of when he placed this call. One version has Dr. Hermans calling Dr. Reid approximately an hour to an hour-and-a-half after Susan's arrival; another version has Dr. Hermans calling Dr. Reid within thirty to forty minutes of Susan's admittance. In any event, Susan's medical record bears a notation in Dr. Hermans' handwriting that Dr. Reid had been "notified to see [Susan] in the morning." Dr. Hermans neglected to write the time of this entry next to this note. Dr. JoAnn Alexanian, a medical intern on duty with Dr. Hermans, testified by deposition that Dr. Hermans made the note regarding Dr. Reid sometime before 1:30 a.m.

At trial, Dr. Dorff testified that he did not make the initial contact with Dr. Reid. Dr. Dorff also testified that he could not remember when he first spoke with Dr. Reid concerning Susan. However, the jury learned that in his deposition before trial, Dr. Dorff had testified that he personally contacted Dr. Reid, but that he could not remember when.

Dr. Reid offered a third version via his deposition testimony. Dr. Reid testified that he could not remember who called to request that he see Susan, but that he was first contacted around 7:30 to 8:30 a.m. on August 2. Despite this conflicting evidence, the medical record indicates that Dr. Reid first saw Susan at approximately 8:30 a.m. on August 2. Following this examination, Dr. Reid ordered changes in Susan's medication and inserted a device which measures pressure within the heart.

Dr. Reid was slated to leave on a vacation later that day. Accordingly, Dr. Reid requested that another cardiologist, Dr. James Botticelli, take over the cardiological aspects of Susan's care until his return. Dr. Botticelli served in this capacity from August 3 until August 12.

Five days later, while still in the hospital, Susan suffered a second heart attack. To ease her resulting chest pains, the intern on duty started administering medications at approximately 7:00 a.m. These medications produced a secondary effect of lowering Susan's blood pressure. Later, when her blood pressure became too low, Susan received counteracting medication. Dr. Botticelli was called about 7:12 a.m. In the meantime, Dr. Dorff had begun his morning rounds in the hospital. He also was apprised of this turn in Susan's condition. Sometime that morning--the record does not indicate when--Dr. Dorff wrote a progress note in Susan's file indicating that he agreed with the medications she was receiving. Dr. Dorff also noted that Susan might need "invasive procedures," but that he was awaiting a cardiology opinion to that effect.

Susan's condition continued to deteriorate. Dr. Botticelli was given a status report at 8:20 a.m. By the time he arrived to see Susan at 9:00 a.m., Susan's condition was such that he summoned a cardiac surgeon to insert an intra-aortic balloon pump to keep her alive.

Susan's heart attacks of August 1-2 and August 7 created such cumulative damage that a heart transplant was the only therapeutic option. Susan received this transplant on October 25-26, 1985.

Susan's amended complaint alleged medical malpractice only against the appellants, Dr. Perchik and Dr. Dorff. She did not sue Dr. Reid or Dr. Botticelli. Nor did Dr. Perchik and Dr. Dorff implead Dr. Reid or Dr. Botticelli. The matter was tried to a jury from October 24 through November 10, 1989. The jury found Dr. Perchik 40% causally negligent and Dr. Dorff 60% causally negligent. Dr. Perchik and Dr. Dorff appeal.

1. THE SPECIAL VERDICT

The appellants contend that the trial court erred in refusing to submit the claimed negligence of Dr. Reid and Dr. Botticelli on the special verdict.

This issue first surfaced before trial when the appellants submitted a proposed special verdict inquiring as to Dr. Reid's and Dr. Botticelli's alleged negligence and seeking an apportionment of negligence among Drs. Perchik, Dorff, Reid and Botticelli. Susan responded with a motion in limine, seeking to bar any evidence concerning the alleged negligence of Drs. Reid and Botticelli on the special verdict.

At the hearing on this motion, the parties set out their respective trial theories. As their principal line of defense, the appellants contended that Susan's heart attacks were caused by a rare condition not within the common knowledge of similarly situated physicians in 1985. Thus, the appellants contended that no one rendered inappropriate treatment to Susan.

Alternatively, and in support of their proposed special verdict, the appellants anticipated that Susan's evidence might show that certain procedures, which only a cardiologist is competent to perform, could have and should have been performed on Susan on the night/morning of August 1-2; that such procedures could have alleviated some of the damage to Susan's heart; that because she did not have the benefit of such early and aggressive measures, Susan had to receive a course of medications which contributed to her...