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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
that a witness must divulge facts; they are often more sensitive to a colleague's critical opinion. The resulting tension can destroy friendships, working relationships, and economic relationships. In the absence of necessity, there are practical reasons to avoid these familiar human problems by not requiring non-essential opinion testimony from certain witnesses. Again, Alt incorporated this rationale.
A third closely related policy reason is that the relationships among local health care providers may affect the objectivity of their testimony. Some witnesses may have a financial stake in the outcome of malpractice litigation. As a result, they may shade their testimony to advance their own interests, guard their own reputations, or protect their co-workers.
Hence, unless the circumstances are exceptional, a medical witness who is unwilling to testify as an expert should not be required to give her opinion on the standard of care applicable to another person or be asked to second-guess another person's performance. In most fields, the answers to questions of this nature are not "unique" or "irreplaceable." Another "expert" in the appropriate field could answer such questions.
This brings us to the third category, medical witnesses who have been accused of malpractice----negligence causing injury----who may be party defendants.
Medical malpractice cases require expert testimony to establish the standard of care. Kuehnemann v. Boyd, 193 Wis. 588, 214 N.W. 326 (1927). At trial, the plaintiff must establish the standard of care, show that the defendant failed to conform to the standard of care, and prove that the defendant's failure to conform to the standard of care caused the plaintiff's injury. Olfe v. Gordon, 93 Wis. 2d 173, 180, 286 N.W.2d 573 (1980).
A strong case can be made for the proposition that a defendant witness should not be required to address her own standard of care and that a finder of fact should compare the defendant's required factual explanation of her own actions and thought processes to the standard of care established by other experts in the field, to determine whether there was negligence.
Nonetheless, the rule in this state since Shurpit v. Brah, 30 Wis. 2d 388, 141 N.W.2d 266 (1966), has been otherwise:
The plaintiff was permitted, both on adverse examination and in cross-examination, to inquire into what the defendant did in examination and treatment but was not allowed to inquire as to Dr. Brah's opinion as to the cause or proper treatment in view of the history and his examination of the plaintiff.
We do not perceive that plaintiff should have been so limited under our adverse examination statute.
While we recognize the trial court has some discretion in the scope and extent of the cross-examination of a witness, we deem it was error to prohibit cross-examination of the . . . defendant, upon the sole ground that it called for an opinion of the witness.
Id. at 397, 399.
Shurpit cited and quoted extensively from Lawler v. Calaway, 147 P.2d 604 (Cal. 1944), and McDermott v. Manhattan Eye Hospital, 203 N.E.2d 469 (N.Y. 1964). Innumerable cases could be cited supporting this rule, including Anderson v. Florence, 181 N.W.2d 873 (Minn. 1970), and Jistarri v. Nappi, 549 A.2d 210 (Pa. 1988), both of which cite Shurpit. See also 88 A.L.R.2d 1186 (1963), "Right To Elicit Expert Testimony From Adverse Party Called As Witness."
The Minnesota court's thinking was set out at length in Anderson:
The medical malpractice action is a unique and difficult type of lawsuit. It is usually more bitter and contentious
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