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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
itness . . . must be qualified, i.e., found competent in the special skill or knowledge about which he is to testify." Id. at 878. It added: "It should be emphasized that a defendant physician's general expertise is not on trial or in issue; the question to be resolved is whether his conduct and medical judgment in a particular case amounted to a professional mistake." Id. at 879. We agree.
Normally plaintiff's counsel will attempt to discredit a medical defendant or other medical witness accused of negligence and diminish the effect of the person's testimony by challenging the person's reliability, expertise, intelligence, and veracity in adverse examination or cross-examination. Another goal of counsel will be to prove the plaintiff's case through the defendant's "expert" testimony. The sport in turning a defendant's words against her could alter the focus of the trial.
The circuit court must assure that a defendant/witness from whom expert testimony is required is not asked to give opinions on subjects beyond the witness's competence. In other words, the witness must be qualified to answer each question asked. Wis. Stat. § 907.02. The court may also employ evidentiary rules including Wis. Stat. §§ 904.02 (relevant evidence; irrelevant evidence), 904.03 (exclusion of relevant evidence on grounds of prejudice, confusion), and 906.11 (mode and order of interrogation and presentation; control by judge) to maintain the focus of a medical malpractice trial on whether the defendant conformed to the applicable standard of care, as provided in the appropriate jury instruction, not whether the defendant performed well as an expert witness. After all, the purpose of the defendant's required testimony is to aid in the search for truth.
APPLICATION
With these guidelines in mind, we turn to the three medical witnesses in this case who were unwilling to testify as experts.
The first medical witness, Kathy Avery, is a named defendant and is accused of causal negligence. She was Carney-Hayes' primary home care nurse. Avery was with Carney-Hayes during the incident underlying the lawsuit, and her actions are of critical importance in determining whether the suit will succeed. Under these circumstances, Avery must testify about her own conduct relevant to the case, including her observations and thought processes, her treatment of the patient, why she took or did not take certain actions, what institutional rules and regulations she believed applied to her conduct, and her training and education pertaining to the relevant subject. An examination of the deposition transcript shows that she did so. See supra 9, 29. As we have noted, Avery was extensively questioned about her education and training, and gave a detailed description of the events during the incident, including her observations, her actions, and her rationale for her behavior.
Further, Avery was asked a series of questions intended to determine the extent of her knowledge about ventilator-dependent patients, many of which included hypothetical questions and called for opinion answers. Avery answered all these questions without objection. The following exchange illustrates some of these questions:
Q: Did they give you any instruction at all as to what you should be doing once that high pressure alarm would go off on a ventilator dependent patient?
A: I don't remember any formal instructions. The first thing would be always to check the patient.
Q: And when you say check the patient, what do you mean by check the patient?
A: Check for color, check to----overall assessment to see how they're doing.
Q: After having
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