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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
require that this care plan be reviewed and updated on some periodic basis?
A: Yes.
Q: How frequently is the care plan, first of all, to be reviewed?
A: I don't recall for sure, but I believe it was on a monthly basis.
After a medical witness has described her own conduct, the plaintiff may establish the applicable standard of care through independent experts, and then show that the person's conduct did not meet that standard. Thus, hypothetically, if the plaintiff's experts established that a care plan should be reviewed weekly, Verbracken's testimony quoted in the preceding paragraph would show that Northwest's monthly updates did not satisfy the standard of care.
On the basis of the record in front of us, the circuit court erred in requiring 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." Nonetheless, in light of this decision, we remand this case to the circuit court so that the plaintiff has the opportunity to allege that Verbracken is a Shurpit witness because she was negligent or the plan of care she prepared was defective.
CHERYL FONTAINE
Cheryl Fontaine is Northwest's "Director of Extended Care Services." She must testify about her own actions, any training she provided to Avery, and any of Northwest's corporate training standards she believed governed her actions. However, she cannot be forced to testify to the general standard of care required of a nursing supervisor, nor may she be forced to testify whether she believes Avery's conduct conformed to the applicable standard of care. On Fontaine's testimony, we affirm the circuit court.
CONCLUSION
We reaffirm our decisions in Alt and Glenn and take this opportunity to clarify the duties and privileges of 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 have caused injury to the plaintiff by her medical negligence may be required to give her opinion on the standard of care governing her own conduct. A witness in this category may be a party defendant. However, no medical witness may be named a party defendant for the purpose of eliciting the witness's expert opinion. The circuit court may assess whether there is a reasonable basis for naming a medical witness as a party defendant. The court should assure that any medical witness from whom expert opinion is required is qualified to testify as an expert, pursuant to Wis. Stat. § 907.02. The court may employ evidentiary rules, including §§ 904.02, 904.03, and 906.11 to maintain the focus of a medical malpractice trial on whether the defendant conformed to the standard of care, not whether the defendant performed well as an expert witness.
We affirm the circuit court's evidentiary r
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