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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
utional rules and regulations she believed applied to her conduct, and her training and education pertaining to the relevant subject. Every person has a right to this factual evidence. See Alt, 224 Wis. 2d at 88.
To illustrate the sort of fact questions that a medical witness must answer, we cite the following exchange from Avery's deposition:
Q: At that point did you have, after you checked her pulse, did you have any suspicion as to why it was that she had no pulse?
A: There was a lot of things that I surmised that I thought was going on.
Q: What did you surmise?
A: I thought there was something----I was wondering if there was something wrong with the vent. I was wondering if she was having a seizure. It looked like something neuro was going on. If she was having a stroke with the past history of the shunt that she had problems with. And then I was wondering if there was something cardiac that I didn't know about.
As a general rule, questions relating to a medical witness's thought processes during an incident are not objectionable.
Moving to a second category of witness, the heart of the Alt opinion is that 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.
Alt deemed this ability to refuse to give an expert opinion a privilege. There are several policy reasons underlying this "privilege."
Early on, there were two distinct schools of thought about "expert" witnesses. One was to treat them the same as lay witnesses, requiring them to come to court as a duty of citizenship and testify for a statutory witness fee. This was the rule in Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829 (1909), where a "competent physician" was engaged by a criminal defense attorney to make a "careful medical examination" of the defendant and then testify as an expert witness. The county refused to pay the physician more than $1.50 per day, the statutory witness fee. The county's refusal was upheld, and the same archaic law was still being applied in 1947. Bergstrom Paper Co. v. Cont'l Ins. Co., 7 F.R.D. 548 (E.D. Wis. 1947). The opposing view was well stated in Ex parte Roelker, 20 F. Cas. 1092 (D. Mass. 1854) (No. 11995), where the court said:
When a person has knowledge of any fact pertinent to an issue to be tried, he may be compelled to attend, as a witness. In this, all stand upon equal ground. But to compel a person to attend, merely because he is accomplished in a particular science, , or profession, would subject the same individual to be called upon, in every cause in which any question in his department of knowledge is to be solved. Thus, the most eminent physician might be compelled, merely for the ordinary witness fees, to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise. This is so unreasonable, that nothing but necessity can justify it.
This policy determination is reflected in Alt, where the court concluded that the law stated in Philler is no longer valid. Alt, 224 Wis. 2d 72, .
A second policy reason underlying the privilege was echoed in Glenn when Dr. Koh stated his reluctance to testify against a local physician. Glenn, 269 Wis. 2d 575, . There is a heavy strain on the relationships in a hospital, clinic, or other health care facility when one health care provider is required to make a public assessment under oath about another health care provider's professional performance. People understand a requirement
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