COURT OF APPEALS DECISION DATED AND FILED August 26, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Neubauer, P.J., and Snyder, J.
¶1 PER CURIAM. Arthur F. Young appeals from the judgment after a jury trial, dismissing his claims against Denis J. Tonsfeldt, M.D., and Physicians Insurance Company of Wisconsin, Inc., in this medical malpractice action for the death of his wife. Young argues that the circuit court erred when it would not allow him to introduce the deposition testimony of another doctor, Dr. Terry A. Zarling, and when it denied his motion for a mistrial. We conclude that even assuming the circuit court erred when it would not allow Young to read in Dr. Zarling’s deposition testimony, the error was harmless, and that the circuit court did not err when it denied the motion for a mistrial. Consequently, we affirm.
¶2 In 2002, Young’s wife, Janet Young, went to the emergency
department at
¶3 Young eventually brought this action against Dr. Tonsfeldt and Dr. Zarling alleging that they were negligent in the care and treatment they provided to Mrs. Young when she came to the emergency room, resulting in her death. Young dismissed Dr. Zarling from the case before trial because Dr. Zarling’s deposition testimony established that Dr. Zarling was not a consultant for Mrs. Young’s emergency room visit. Young contended that Dr. Tonsfeldt was negligent because he did not appropriately respond to the symptoms Mrs. Young presented in the emergency room on that Friday night.
¶4 In his deposition, Dr. Zarling testified that his discussion with Dr. Tonsfeldt while Mrs. Young was in the hospital was a “curbside,” which is “a discussion to facilitate patient care.” During cross-examination, Dr. Tonsfeldt testified that his purpose in calling Dr. Zarling was to use Dr. Zarling’s expertise so that between the two of them they could decide whether to admit Mrs. Young to the hospital or send her home. Young’s counsel asked Dr. Tonsfeldt if he had consulted with Dr. Zarling. Dr. Tonsfeldt testified that it was not a formal consult, because that “involves the consultant coming and getting their own history, doing their own physical exam, examining the same data and then coming to their conclusions.” Dr. Tonsfeldt denied that the conversation was “a curbside,” but rather characterized it as “calling for advice and input from [the] specialist.”
¶5 Counsel then attempted to read in Dr. Zarling’s deposition testimony in which Dr. Zarling said the phone call was “a curbside.” Defense counsel objected. The court found that the testimony was hearsay because it was being offered for the truth of the matter asserted, that Dr. Zarling was not being called to testify, and that Young’s counsel was not asking questions about the testimony, but rather just wanted to read it into the record. The court would not allow Young’s counsel to read the deposition testimony.
¶6 Young argues that the circuit court erred when it would not
allow his counsel to read Dr. Zarling’s deposition testimony into evidence
during the cross-examination of Dr. Tonsfeldt.
He argues that under Wis. Stat. § 804.07(1)(c)2.
(2007-08),[1]
the deposition testimony of a medical expert can be read at trial. We do not reach the question of whether the
testimony was admissible under § 804.07,
but we assume without deciding that it was admissible. We affirm, however, on the basis that the
court’s decision not to allow counsel to read the deposition testimony was
harmless error. See Vanstone v. Town of
¶7 The standard for harmless error is whether there is a
reasonable possibility that the error contributed to the outcome of the
action. Martindale v. Ripp, 2001
WI 113, ¶71, 246
¶8 Young also argues that the circuit court erred when it denied his motion for a mistrial. Young argues that Dr. Tonsfeldt’s counsel improperly argued facts that were not in evidence during closing argument. Specifically, Young argues that counsel misstated the cause of Mrs. Young’s death, and said that Dr. Zarling “took over” Mrs. Young’s care. The circuit court denied the motion, finding that it was argument, and there was evidence on both sides of the issue. We agree.
¶9 The decision whether to grant a mistrial lies within the
sound discretion of the trial court. State
v. Pankow, 144
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.