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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
This case is before the court on bypass pursuant to Wis. Stat. ยง (Rule) 809.60 (2001-02). The plaintiff, Amanda Carney-Hayes (Carney-Hayes) and the defendants, Northwest Wisconsin Home Care Inc. and Kathy Avery (collectively, Northwest) join in this interlocutory appeal from the evidentiary rulings of the Circuit Court for Eau Claire County, Lisa K. Stark, Judge. Carney-Hayes sued Northwest, alleging that one of its employees, Kathy Avery, negligently provided emergency nursing treatment. Carney-Hayes now seeks to compel expert opinion testimony regarding the applicable standards of care from three unwilling witnesses----Avery, Cheryl Fontaine, and Jodene Verbracken. All three played a role in Northwest's treatment of Carney-Hayes, but only Avery is a named defendant. All three refused to answer certain questions posed at their depositions, asserting the privilege we recognized in Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), and reiterated in Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413.
Carney-Hayes filed motions asking the circuit court to compel the three witnesses to testify on these standard of care questions. The circuit court held two separate motion hearings. At the first hearing, it granted Carney-Hayes' motion to compel Avery's testimony as to the standard of care because Avery is a named party and because "she was there," providing treatment to Carney-Hayes at the time of the incident in question. The court believed that these facts distinguished Avery from Dr. Ernesto Acosta, the unwilling expert in Alt, because "the Alt hold can be limited to a nonparty, unpaid expert."
At the second hearing, however, the court denied a similar motion relating to Fontaine. The court reasoned that Fontaine's position was different from Avery's because Fontaine "was not present . . . did not provide direct care to the plaintiff [and is] not a named party." Fontaine's position, in the court's view, corresponded to Dr. Acosta's position in Alt.
The circuit court characterized its decision with respect to Verbracken as the most difficult of the three, because Verbracken had previously been a direct caregiver for Carney-Hayes and had written Northwest's "plan of care" for Carney-Hayes. However, Verbracken was not at the scene of the incident, nor was she one of Carney-Hayes' direct caregivers at that time. Therefore, the court directed Verbracken to answer questions about the standard of care "with respect to the plan of care, its preparation, its maintenance, and how it should be followed." She was not required to answer questions eliciting her opinion about Avery's direct care to the plaintiff.
We take this opportunity to reaffirm our holdings in Alt and Glenn and to clarify the duties and privileges of medical witnesses in a medical malpractice case. (1) A medical witness must testify about her own conduct relevant to the case, including her observations and her thought processes, her treatment of the patient, why she took or did not take certain actions, what institutional rules she believed applied to her conduct, and her training and education pertaining to the relevant subject. (2) Subject to the compelling need exception recognized in Alt and Glenn, a medical witness who is unwilling to testify as an expert cannot be forced to give her opinion of the standard of care applicable to another person or her opinion of the treatment provided by another person. Unless a medical witness who is unwilling to testify as an expert is alleged to have caused injury to the plaintiff by her medical negligence, the witness is not required to give her opinion on the standard of care governing her own conduct. (3) A medical witness who is alleged to hav
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