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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
e 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.
FACTS AND PROCEDURAL POSTURE
Carney-Hayes suffers from spina bifida and other congenital diseases. She cannot breathe on her own. She is dependent on a ventilator and, at the time of the incident underlying this lawsuit, she received 24-hour home care from Northwest. At that time, Avery was Northwest's in-home "one on one" nurse, Verbracken was Carney-Hayes' "case manager" responsible for preparing care plans for treatment, and Fontaine was Northwest's "Director of Extended Care Services," a supervisor responsible for Avery's training.
On April 7, 1999, Carney-Hayes stopped breathing while she was at school. Avery testified that this was not an infrequent problem for Carney-Hayes, and that it was even to be expected for patients suffering from Carney-Hayes' ailments. The usual cause, according to Avery, is the inability of such patients to clear secretions from their lungs. The usual treatment is to suction the secretions out of the lungs. Avery was present at the school with Carney-Hayes, and she testified that as she prepared to suction Carney-Hayes' secretions, she noticed that Carney-Hayes had no pulse. Aided by bystanders, Avery immediately initiated cardiopulmonary resuscitation (CPR). Ultimately, Avery succeeded in saving Carney-Hayes' life, but Carney-Hayes alleges that she suffered serious injuries as a result of the incident.
Carney-Hayes alleges that Avery negligently failed to open her trachea before beginning CPR, and further alleges that if Avery had properly followed standard medical procedures, Carney-Hayes' heart never would have stopped. Carney-Hayes filed suit against Northwest and Avery on March 28, 2002, alleging that they were negligent in her treatment. Discovery ensued.
Carney-Hayes deposed Avery, Verbracken, and Fontaine. Avery's deposition took place on November 14, 2002. It lasted almost six hours and produced 173 pages of testimony. Plaintiff's counsel asked and Avery answered many questions that called for Avery's opinion and her description of her training as well as her conduct, thoughts, and observations on the date of the incident. The following exchanges took place between Avery and the plaintiff's attorney:
Q: Is that a common problem for all ventilator dependent patients . . . that they have some problems moving their secretions from their lungs?
A: They need to be suctioned periodically, yes.
Q: I understand that you can recount the day, but I would also like you, if you can, to recount the conversation that you had with Kathy Johnson and perhaps Kelly . . . what did you tell them?
A: . . . I explained what had happened. I told them that the vent went off. I went to check on it. It said high pressure. Went to grab a suction catheter and looked at Amanda. She was cyanotic. And diaphoretic and had clear secretions coming out o
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