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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
objected, asking that Dr. Worthington be allowed to answer the original question without clarification. The court refused, and allowed plaintiffs' counsel to "paraphrase" the question as follows:
Q: Doctor, I'm going to read you this definition of medical negligence as decided by this court and ask you to accept this as the definition of negligence that applies to Dr. Lindemann. "In treating and diagnosing Marlene Phelps' condition, Dr. Matthew Lindemann was required to use the degree of care, skill and judgment which reasonable physicians who treat obstetrical patients would exercise in the same or similar circumstances having due regard for the state of medical science at the time the plaintiff was treated and diagnosed. A doctor who fails to conform to this standard is negligent." . . .
Perhaps realizing the problem, the circuit court took a different approach during the testimony of the plaintiffs' expert, Dr. David Acker, on December 10, 2002. After Acker testified that he believed Lindemann violated "the standard of care," the circuit judge intervened:
THE COURT: Now, let me ask you this question. Assuming----Let's assume the standard were different and the standard was that of a first year resident. What would your position be?
THE WITNESS: It's the same because [Lindemann was] not looking for the right diagnosis.
THE COURT: Sure.
THE WITNESS: I'm----everything that I've tried to describe----
THE COURT: [Lindemann] just needed to do something else. THE WITNESS: That's it. You don't have to know what this is to do something else. And in fact, he knew what it was, pain not related to labor.
THE COURT: Sure.
As the trial advanced, the parties' understanding of the standard of care issue evolved, as evidenced by the following exchange during the direct examination of defense expert Dr. Frederik Broekhuizen:
Q: Doctor, by way of an offer of proof if the court believes this is an inappropriate question, based upon your experience, would you expect a first-year resident, an intern, to meet the standard of care of an attending [physician]?
[PLAINTIFFS' ATTORNEY]: . . . I want to make sure that that is what is understood here. This is an offer of proof.
THE COURT: I will allow it as an offer of proof. I made the ruling in the case and that I'll have to live with, and there's been a lot of testimony here so far what a first-year resident ought to be doing even from the plaintiffs' witnesses. So to a certain degree, let's hear what he has to say.
Q: Doctor, assuming the standard of care applicable to Dr. Lindemann was that of a first-year resident in his second obstetric rotation, do you believe Dr. Lindemann met that standard of care in his care and treatment of Mrs. Phelps on the morning of 11/24/98?
A: I think he did. (Emphasis added.)
The above excerpts reveal the shifting sands that developed at trial, with the parties at different times proceeding under three different approaches as to the applicable standard of care: 1) the treating physician standard (Dr. Worthington's testimony); 2) the first-year resident standard (Dr. Broekhuizen's testimony); 3) both standards (Dr. Acker's testimony). At times, the court took over questioning the expert witnesses.
This uncertainty permeated the conduct of the trial. Therefore, I do not agree that the circuit court's error was harmless because the defendant was not permitted to make a sustained case on what this court now deems the applicable standard of care. Because no jury was present, the court did not have to grapple with instructions forthr
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