 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
at testimony is relevant.
In light of the majority opinion, I have no doubt that Alt issues will continue to plague the litigants and courts of this state. Inevitably we will see these issues again. For the foregoing reasons, I respectfully concur in part and dissent in part.
I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice LOUIS B. BUTLER join this opinion.
LOUIS B. BUTLER, JR., J. (concurring in part, dissenting in part).
I respectfully dissent in part. I would conclude that Carney-Hayes should be allowed to ask two of the witnesses here, Avery and Verbracken, about their own standards of care, provided Carney-Hayes can qualify them as experts. I would conclude that the answers to these questions are not privileged under Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), and this court's decision just last term in Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413.
Before jumping into the analysis, the following background provides context. Carney-Hayes has filed suit against Northwest Wisconsin Homecare, Inc., and Avery. Carney-Hayes has alleged that on April 7, 1999, Carney-Hayes suffered injury while under the custody, care, supervision, and/or treatment of Avery. Carney-Hayes alleged that her injuries and resulting damages were caused by negligence of Northwest, its agents, servants, ostensible agents, and/or employees, and/or Kathy Avery.
During discovery, the following disputes arose:
Carney-Hayes wants to ask Avery (Carney-Hayes' registered nurse) about her standard of care.
Carney-Hayes wants to ask Verbracken (Carney-Hayes' case manager who wrote Carney-Hayes' plan of care) about her standard of care and about Avery's standard of care.
Finally, Carney-Hayes wants to ask Fontaine (a supervisor responsible for Avery's training) about what a manager's standard of care was regarding orienting a nurse to a new patient and whether Avery acted according to the standard of care.
Turning to Alt, one of the issues in that case was whether an expert witness had a legal privilege to refuse to answer questions posed that required expert opinions. Alt, 224 Wis. 2d at 82. In that case, Cline, an obstetrician, delivered a child, Cody Alt, after performing a cesarean section on the mother, Dawn Alt. Id. at 79-80. Cody sustained serious injuries from the delivery. Id. at 80. The Alts (Cody, Dawn, and the father, Mark), sued Cline for negligence. Id. The Alts named one of Cody's treating physicians, Acosta, as an expert. Id. Acosta provided prenatal care to Dawn and wrote her discharge summary following Cody's birth, but he was not present at the delivery. Id. During discovery, the Alts asked Acosta a question that called for an expert opinion. Id. at 81, 84. Specifically, the question was, "No matter what the cause, a patient with a history of term pregnancy and a gush of blood[,] that's abnormal?" Id. at 81 (brackets in original). Acosta refused to answer the question.
This court recognized that as a general rule, no person has a privilege to refuse to give evidence. Id. at 84. The Alt court also recognized that " rivileges are the exception, not the rule." Id. at 85.
Nevertheless, this court found an implicit expert-privilege in Wis. Stat. ยง 907.06(1). Alt, 224 Wis. 2d at 86. That section provides that " he judge may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of the judge's own selection. An expert witness shall not be appointed by the judge unless the expert witness consents to act." Id. (emphasis in original). The Alt court concluded that "this express grant im
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|