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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
cordingly, I write separately to express regret for not only what the court is doing, but what it has failed to do.
Here is what the court has done: The bench and bar will have to learn new categories of witnesses. The first is an ordinary "medical witness." These witnesses must testify about their own conduct relevant to the case, including their observations and thought processes, treatment of the patient, why they took or did not take certain actions, what institutional rules they believed applied to their conduct, and their training and education pertaining to the relevant subject. Majority op., .
The second category is an "Alt medical witness." Subject to the compelling need exception recognized in Alt, these witnesses cannot be forced to give their opinion of the standard of care applicable to another person or their opinion of the treatment provided by another person. Id. These witnesses also cannot be required to give an opinion on the standard of care governing their own conduct. Id.
Finally, the third category is a "Shurpit medical witness." These witnesses differ from the previous two kinds in that they are alleged to have caused injury to the plaintiff by their medical negligence. Id. As a result, they may be required to give their opinion on the standard of care governing their own conduct. Id.
In addition, the majority sets forth duties for the circuit court. It would have the circuit court "assess the reasonableness and good faith of a decision to make a person a Shurpit witness by naming the person as a defendant or otherwise accusing the witness of causal negligence." Id., . It mandates that the circuit court "assure that a defendant/witness from whom expert testimony is required is not asked to give opinions on subjects beyond the witness's competence." Id., . The court explains that such a mandate means " n other words, the witness must be qualified to answer each question asked." Id. Additionally, the majority instructs that the circuit court "may employ evidentiary rules, including ยงยง 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." Id., .
Essentially the court has failed to clarify the Alt morass. The majority opinion seems to raise more questions than it answers:
* Does the opinion apply only to medical witnesses, or does it apply to all expert witnesses?
* Even though an expert witness may not be required to opine on the standard of care question, can the witness still be required to give expert testimony in response to other questions?
* Can an Alt witness be transformed into a Shurpit witness? Can a Shurpit witness be transformed into an Alt witness? How does such a transformation take place?
* If a hospital is accused of causal negligence, why are not all of its agents/employees who worked with the patient potential Shurpit witnesses?
* If the heart of the Alt opinion is that a medical witness cannot be forced to give her opinion of the standard of care applicable to another person, why cannot an Alt witness be asked to give an opinion of the standard of care applicable to herself?
Ultimately, what the majority has failed to do is set forth a simple standard for all medical witnesses: (1) No witness, except a voluntary expert witness, should be forced to testify about someone else's standard of care. (2) Any witness may testify about his or her own standard of care regardless of whether the person is a named party and regardless of any allegation of negligence, as long as th
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