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Clark v. Wisconsin Patients Compensation Fund4/13/2005
James and Joyce Clark appeal from the dismissal of their medical malpractice claims against Drs. William Claybaugh and Roger Pellmann. The circuit court granted summary judgment dismissing the action because the Clarks failed to present any expert opinion evidence on causation. We affirm the judgment.
In November 1999, James complained to his primary physician of back pain. James had a long history of back problems, including the insertion of Harrington rods for a fractured back in 1979. Spine and chest x-rays were taken. At a December 2, 1999 consultation with orthopedic surgeon Dr. Thomas Flatley, Dr. Flatley indicated that the Harrington rods were not the source of James's back pain.
Due to continued pulmonary problems and back pain, a chest x-ray was taken on December 15, 1999. Dr. Pellmann, a radiologist, interpreted the x-ray noting "some significant compression deformities in the mid thoracic spine." James sought emergency room treatment on December 24, 1999, due to chest pain, shortness of breath and weakness. A chest x-ray was ordered. Dr. Claybaugh, a radiologist, interpreted the x-ray noting " hronic wedge deformity of mid thoracic." The emergency room physician prescribed pain medication and sent James home with an order to see his own doctor if the symptoms did not improve.
On December 28, 1999, James saw his primary physician because of severe back pain and inability to ambulate. A CAT scan was done and it revealed an infectious and destructive process in his thoracic spine at the T7-T8 level. On December 30, 1999, Dr. Flatley performed surgery on James's back.
James was rendered a paraplegic. The Clarks's action alleges that radiologists Pellmann and Claybaugh failed to identify and report from the x-rays the obliteration of the T7-T8 disc space, and that had the reports been made, the infectious condition in his back would have been timely diagnosed prior to the onset of paraparesis. In opposition to the motion for summary judgment, the Clarks offered the affidavit of Dr. Flatley stating: "It is my opinion, to a reasonable degree of medical certainty that if Mr. Clark's problem at T7-T8 had been diagnosed prior to the onset of his severe symptoms on December 28, 1999, those symptoms and his paraparesis would likely have been avoided." Dr. Flatley's deposition testimony demonstrated that his opinion was confined to recognizing that had the problem been diagnosed prior to the onset of the paraparesis, it is likely paraparesis would have been prevented. The Clarks also offered the deposition testimony of a retained expert witness, Dr. Paul Molina. Dr. Molina opined that Dr. Pellmann's and Dr. Claybaugh's reading of x-rays did not meet the standard of care because the obliteration of the disc space and absence of vertebral body endplates were not reported. The circuit court concluded that the opinions of Drs. Flatley and Molina did not establish or permit an inference that the negligence of the radiologists was the cause of James's paraplegia. Summary judgment dismissing the action was granted.
We review the circuit court's grant of summary judgment using the same methodology as the circuit court. City of Beaver Dam v. Cromheecke, 222 Wis. 2d 608, 613, 587 N.W.2d 923 (Ct. App. 1998). There is no need to repeat the well-known methodology; the controlling principle is that when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Id.; WIS.STAT.ยง 802.08(2) (2003-04).
Causation in Wisconsin exists where the defendant's negligence was a substantial factor in producing the plaintiff's harm. Substantial factor "denotes that the defenda
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