 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
than an ordinary negligence suit and its effect on litigants is often profound. . . .
Not only are medical malpractice actions unique; the defendant physician . . . is in a unique position. He is called upon to fill three possible roles during discovery and at trial, namely, those of an adverse party, an eyewitness, and an expert witness. As the adverse party, he, like plaintiff, can be required to testify both before and at trial as fully on material matters as any witness in any civil action. . . .
A defendant physician in a medical malpractice suit is also an eyewitness and often the only person with firsthand knowledge of critical evidence. As such, he can be required to testify to facts coming under his observation during performance of professional duties. . . .
[An expert witness] is the third role defendant is asked to assume. To testify as an expert, a witness, whether a nonparty or an adverse party, must be qualified, i.e., found competent in the special skill or knowledge about which he is to testify. According to the agreed statement of facts in this case, defendant is a "duly qualified and licensed physician and surgeon in the State of Minnesota, specializing in the field of orthopedic surgery." This stipulation compels us to accept defendant as qualified to answer the questions propounded despite the implication that plaintiff, by instituting this action, is challenging his expertise.
. . . Some courts have considered it unfair and contrary to the purpose of the adverse-witness rule to allow one party to prove his case by the opposing party's expert testimony. In one sense this argument is akin to the concept that a party to a law-suit should establish his case in a "sporting" manner. But in malpractice actions the argument assumes a slightly different and more specific quality: It is unreasonable and unfair to allow a plaintiff in a malpractice action to elicit expert testimony from the defendant whose expertise he is attempting to condemn. . . . The courts assert that the question of unfairness to individuals should not be controlling, since the inquiry is directed to one who has been a participant in the occurrence and withholding relevant testimony by litigants obstructs the administration of justice. . . . Furthermore . . . the purpose of the adverse-party-witness rule "is to permit the production in each case of all pertinent and relevant evidence that is available from the parties to the action." . . . As the New York court recognized, the usual and customary medical procedures and whether defendant deviated therefrom are certainly "pertinent and relevant" to a malpractice action.
Anderson, 181 N.W.2d at 878-79.
In affirming the rule in Shurpit, we understand that a plaintiff may be motivated to name a medical witness as a defendant or otherwise accuse the medical witness of causal negligence in order to transform the person from an Alt witness (who is not required to give expert opinions) to a Shurpit witness who is so required. It is improper to name a person a party defendant for the purpose of eliciting an expert opinion from the person, because such a person will not be compensated as an expert, will have to spend time preparing for testimony as an expert, and will normally have to retain counsel. Courts should not permit litigants to make end runs around Alt and Glenn by using this tactic. Accordingly, the circuit court may assess the reasonableness and good faith of a decision to make a person a Shurpit witness by naming the person as a defendant or otherwise accusing the witness of causal negligence.
The Minnesota court justified its "Shurpit" rule, in part, saying, "To testify as an expert, a w
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.
|
|