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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
A: First I would look at her and assess her for all of the things that we talked about in the care plan such as, you know, wheezes. I'd be listening for if she had secretions. Was the air actually going in when the vent was giving a breath or was it not going in? Was she purple or blue? And then I guess I need the next step first before I would make any decisions, that would be my first assessment is her air, is she----
Q: Let's assume for the purposes of the question that she's not receiving any air.
A: She's not receiving any air.
Q: She's not receiving any air. If that's the case, what would be the next step?
A: I would take her off the vent and bag her.
Q: If a person's lungs aren't moving up and down, would that be an indication of the fact that someone is not receiving air?
A: Right.
Q: And if someone is not receiving air, can one of the reasons be that a person isn't receiving air the fact that they have either a [mucous] plug or increased secretions?
A: Yes.
Q: Would one of the ways that one would have to attempt to restore air to a ventilator dependent child be to remove the increased secretions or remove the [mucous] plug by suctioning?
A: Yes.
Defense counsel objected only when plaintiff's counsel began asking questions about the applicable "standard of care." Carney-Hayes brought her second motion to compel in response to these objections.
Fontaine's deposition took place on February 20, 2003. Although shorter, it bears many similarities to Avery's and Verbracken's depositions. Defense counsel did not object to questions about Fontaine's education history, her training, the training procedures Fontaine used to train nurses like Avery or plaintiff's counsel's substantial questioning regarding Northwest's policies and procedures specific to "nursing cares." Defense counsel did object when plaintiff's counsel questioned Fontaine regarding the "accepted standard of care" for a manager supervising or training a nurse like Avery. Carney-Hayes incorporated her request that the court overrule these objections in her second motion to compel.
The circuit court ruled separately on each of the three witnesses. The court held the first motion hearing, addressing Avery's testimony, on February 5, 2003. The court held that the Alt privilege applied to Avery, but concluded that "there is a compelling circumstance to justify her testimony," and granted the plaintiff's motion to compel Avery to provide opinion answers to the plaintiff's standard of care questions. The court believed that compelling circumstances existed because "she was there, she has unique information, she has unique knowledge about the facts and circumstances that provide a compelling interest." The circuit court noted that the plaintiff's case would become very difficult without the sought-after testimony from Avery: "I'm certain that the case could go in without much evidence from Defendant Avery, but I also think that the defense would want to put in some evidence from her concerning this issue." The court also stated its belief that the Alt holding was limited to nonparty, unpaid experts.
The second motion hearing, addressing Fontaine and Verbracken, was held on May 30, 2003. The court refused to compel expert testimony from Fontaine because it believed that factually, her position was very similar to Dr. Acosta's in the Alt case: she is not a named party, provided no direct care to the plaintiff, has no firsthand knowledge of what happened, and was not at the scene. Accordingly, the court denied the motion requesting that it compel Fontaine to
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