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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
made that assessment, what would be the next step?
A: Just----well, it depends on what their assessment was. If it didn't sound like they needed a suctioning, there was no secretions, their color was pink, they were alert, you would probably silence the alarm.
Then plaintiff's counsel attempted to question Avery about the appropriate standard of care. We conclude that Avery was required to answer questions about the standard of care governing her conduct because she is accused of negligence and is central to the case.
We affirm the circuit court on this question but for different reasons. The Alt privilege does not apply to Avery because, as a defendant accused of causal negligence, she is a Shurpit witness.
JODENE VERBRACKEN
Jodene Verbracken was Northwest's "case manager" for Carney-Hayes and had previously been a direct caregiver for her. She must testify as to her own conduct in preparing the Northwest "plan of care" for Carney-Hayes. She must testify regarding references she used in preparing that plan and why she felt the plan was appropriate for Carney-Hayes. If relevant, she must testify about her past care of the plaintiff. However, she cannot be forced to testify to the general standard of care for preparing a similar plan of care, nor may she be forced to testify whether she believes Avery's conduct conformed to the standard of care.
We tend to see Verbracken as an Alt witness. Like Dr. Acosta and Dr. Koh, Verbracken had provided direct care to the patient but was not present at the time of the unfortunate incident. Her expert opinion is not unique or irreplaceable. No exceptional circumstances require her testimony.
Verbracken is not accused of causal negligence. In discovery, the plaintiff obtained the plan of care that Verbracken prepared for Carney-Hayes and Verbracken must explain that plan of care. Verbracken is not a unique or irreplaceable witness for establishing the standard of care for such plans.
Although a case manager may be negligent in preparing a plan of care, it is not evident from the limited record before us whether Carney-Hayes is alleging that Verbracken negligently prepared the care plan. We are unwilling to permit the mere possibility of such an allegation to transform a normal Alt witness into a Shurpit witness and require that witness to assume burdens beyond the burden of being a fact witness.
An Alt witness who is unwilling to testify as an expert may not be compelled to answer a hypothetical question aimed at establishing the witness's perception of her own standard of care or a general standard of care. Such a question would be akin to the question we held impermissible in Alt: whether a gush of blood is abnormal under any circumstances in an expectant mother with a history of term pregnancy. It can often be transposed into the standard of care applicable to another person, pitting one against the other.
We note that impermissible questions about the standard of care, phrased hypothetically or otherwise, may easily be transformed into permissible questions about the specific conduct of the medical witness. For example, plaintiff's counsel asked Verbracken the following impermissible question:
Q: Does the standard of care require that this care plan be reviewed and periodically updated?
The question would have been permissible if plaintiff's counsel had instead asked:
Q: Did you periodically update and review the care plan for Amanda Carney-Hayes?
In fact, plaintiff's counsel asked----and Verbracken answered----a similar question:
Q: And does Northwest
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