COURT OF APPEALS DECISION DATED AND FILED December 17, 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 Dykman, P.J., Higginbotham and Bridge, JJ.
¶1 PER CURIAM. American Family Mutual Insurance Company appeals from a judgment in a personal injury action, arguing that the circuit court erred by directing the verdict regarding past medical expenses pursuant to Hanson v. American Family Mutual Insurance Co., 2006 WI 97, 294 Wis. 2d 149, 716 N.W.2d 866. We agree and reverse and remand for a new trial on damages.
Factual Background
¶2 Keith Hach was rear-ended by an uninsured vehicle driven by Porfirio Enciso-Antonio. At the time of the accident, Hach had uninsured motorist coverage through American Family. The parties stipulated Enciso-Antonio was the sole cause of the accident. Consequently, the jury considered only damage issues.
¶3 At trial, Hach asserted neck and shoulder injuries, supported by the testimony of his treating orthopedic surgeon, Dr. Stephen Grindel. According to Dr. Grindel, the accident aggravated a pre-existing degenerative shoulder condition, resulting in permanent pain symptoms. With respect to the neck injury, Dr. Grindel stated that it was a temporary issue which resolved within three to four months after the accident:
Q: Okay. How about his neck and back, some of those other aches and pains you talked about? Do you have any history from either the medical records reviewed or Mr. Hach as to whether or not those issues were consistent with an automobile accident?
A: My practice pertains primarily to the shoulder and down, but we do discuss neck with that in particular because there is a lot of overlap between symptoms in the neck and the shoulder.
And we do ask questions, and in reviewing the past records, it’s clear that he had strains to all those areas, and those seemed to resolve by three or four months after the—the injury.
Dr. Grindel also testified that the past medical expenses totaling $17,697.58 were reasonable and necessary as a result of the accident.
¶4 The defense offered the testimony of two expert witnesses, Dr. James Steil and Dr. Gerald Harris. Dr. Steil opined that any symptoms Hach suffered after the motor vehicle accident were a temporary aggravation of pre-existing, degenerative conditions that resolved within approximately three months. Dr. Steil stated:
When I examined him, he was fifty-four years old, been
involved in a rear ending accident on March 21 of 2004 here in
¶5 Dr. Steil also opined that any medical expenses beyond three months would not be accident related. He also testified that Hach’s claimed past medical expenses included treatment for unrelated carpal tunnel syndrome, as well as a cervical spine MRI, and associated office visits after the conceded three- to four-month healing period.
¶6 Dr. Harris completed a biomechanical evaluation of the forces involved in the accident to ascertain whether they were consistent with Hach’s claimed injuries. Regarding the alleged neck injury, Dr. Harris stated, “other than transient pain and stiffness, there’s no biomechanical evidence that there would be a neck injury.” Dr. Harris explained, “Two or three days of transient pain and stiffness has been the upper end of what’s been reported with human subject testings.” With regard to the shoulder, Dr. Harris indicated he saw evidence of over-use, arthritis and degeneration of the shoulder. These pre-existing conditions, together with the lack of complaints of shoulder pain following the accident, led Dr. Harris to state, “it removes the shoulder as being related to this motor vehicle accident, in my opinion.” Dr. Harris specifically concluded in part as follows:
Q: In summary, Doctor, can you just provide the jury with a general statement of what your conclusions and opinions overall with respect to your analysis in this case are?
A: Yes. That the alleged injuries of Mr. Hach are not causally related to the motor vehicle accident of March 21st, 2004. While some transient pain and stiffness might occur, the biomechanics of bodily contact are not sufficient to produce the injuries alleged.
¶7 At the conclusion of the evidence, Hach moved for a directed verdict regarding past medical expenses, relying upon Hanson. Hach argued Hanson established that if a plaintiff “is injured … and the plaintiff uses reasonable and ordinary care in selecting his doctors, that the plaintiff is entitled, as a matter of law, to the amount of his past medical bills.” The court agreed with Hach’s interpretation of Hanson, although it indicated, “I don’t necessarily agree with Hanson’s analysis.” The court granted the motion and inserted claimed medical expenses totaling $17,697.58 into the special verdict.
¶8 American Family subsequently moved for a mistrial, which the court denied. The jury returned a verdict awarding $5,000 for past pain, suffering and disability; $20,000 for future pain, suffering and disability; and $20,000 for future medical expenses, in addition to the inserted past medical expenses of $17,697.58. In motions after verdict, American Family sought a new trial pursuant to Wis. Stat. § 805.15(1), which the court denied. This appeal follows.
Standard of Review
¶9 In determining whether the circuit court erred by inserting the
amount of claimed past medical expenses into the special verdict, we must
consider the evidence in the light most favorable to the party against whom the
verdict was directed. See Koczka
v. Hardware Dealers Mut. Fire Ins. Co., 29
Discussion
¶10 In Hanson, our supreme court reiterated the rule for awarding
damages for injuries aggravated by subsequent medical malpractice or mistake. Hanson, 294
The Selleck rule has been a
part of
Hanson, 294
¶11 Here, the circuit court interpreted Hanson to require payment of past medical bills as a matter of law once American Family conceded there was “some injury or problems” and Hach used reasonable care in selecting his doctors. The court stated:
[T]he way I read it is once you’ve got across-the-board indication we concur there was some injury or problems there as a result of the accident, the person still gets treatment after that, it seems to say causation is no longer an issue.
¶12 We conclude the circuit court erred by expanding Hanson to relieve a plaintiff from proving causation when “some” injury is conceded.[2] Although Hanson requires a tortfeasor to pay for unnecessary or negligent treatment if reasonable care is used in selecting medical providers, Hanson did not expand the Selleck rule to eliminate the requirement that claimed past medical expenses be related to the accident.
¶13 Indeed, one of the defendants’ arguments at trial in Hanson
was that the surgery was not causally related to the accident.
Dr. Lloyd may have misdiagnosed those injuries, but they were the reason she was treated. Dr. Pawl even admitted as such. Because Hanson used ordinary care in selecting her physician and that physician subsequently performed an allegedly unnecessary surgery, although one still arising from the original injury caused by Caldwell, the defendants are responsible for the expense of the surgery, consistent with the Selleck rule.
¶14 In Hanson, the supreme court noted that we affirmed the circuit
court’s refusal to grant a pre-verdict motion for past medical expenses. See
id.,
¶13. The supreme court observed that the
jury had determined Hanson’s unnecessary surgery was causally related to the
accident.
¶15 In her concurrence, Chief Justice Abrahamson also recognized a distinction in Hanson related to the causal link between the past medical expenses and the additional treatment arising from the original injuries:
The defendants may have also tried to advance a second theory, that is, that the surgery, necessary or not, was performed not to treat the injuries Hanson, the plaintiff, sustained in the collision at issue, but, rather, to treat an injury Hanson sustained at some other time. This theory, however, was not well developed by the defendants and was blended with the argument that the surgery was simply unnecessary….
We are thus left with a muddled defense and a muddled record. I am therefore satisfied that the majority opinion correctly concludes that on the record before the court, the Selleck rule applies ….
¶16 Here, causation was disputed on a variety of grounds. American Family conceded some level of injury, but disputed the full extent of the past medical expenses.[3] By way of example, Dr. Harris stated the alleged shoulder injury was unrelated to the motor vehicle accident. Rather, he saw evidence of over-use, arthritis and degeneration of the shoulder, together with a lack of complaints of shoulder pain following the accident. Dr. Harris summarized his opinions as follows: “the alleged injuries of Mr. Hach are not causally related to the motor vehicle accident on March 21st, 2004. While some transient pain and stiffness might occur, the biomechanics of bodily contact are not sufficient to produce the injuries alleged.”[4] In addition, Dr. Steil testified that certain claimed medical expenses, including treatment for carpal tunnel, among other things, were unrelated to the injuries caused by the accident.
¶17 When construed in a light most favorable to American Family, a fair view of the evidence adequately raised a factual issue as to whether the claimed past medical expenses arose from the original injuries suffered in the accident. The jury was entitled to award less than the full amount of past medical expenses sought by Hach. This issue should not have been resolved by directed verdict.
¶18 Accordingly,
we cannot sustain the circuit court’s insertion of the claimed medical expenses
into the special verdict. The court
having improperly inserted into the verdict the claimed past medical expenses
of $17,697.58 without submitting the issue to the jury, there will have to be a
new trial on damages. See Koczka,
29
By the Court.—Judgment reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The
Hanson
court also relied upon Butzow v.
If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.
See Hanson, 294
[2] Hach
contends in his brief that “[t]he supreme court [in Hanson] rejected the idea
that the Selleck rule only applies to cases involving medical
malpractice that occurs after the accident.”
Hach provides no citation in support of this contention. We will not address arguments unsupported by
legal authority. See Kruczek v. DWD, 2005
WI App 12, ¶32, 278
[3] American
Family argued during Hach’s motion for directed verdict that the jury was
entitled to conclude from Dr. Harris’ testimony that Hach’s claimed shoulder
injuries were not caused by the motor vehicle accident but, rather, were
sustained at some other time. On appeal,
Hach insists Harris had “many credibility problems” and reargues the evidence
on appeal as if restating closing arguments. As mentioned previously, we review the
evidence in the context of a directed verdict in the light most favorable to
American Family as the nonmoving party. See Koczka
v. Hardware Dealers Mut. Fire Ins. Co., 29
[4] We
note that Hach argued for the jury to be instructed on