PUBLISHED OPINION
Case No.: 93-1555
†Petition for
Review Filed
Complete Title
of Case:
KIM NOWATSKE and
JULIE NOWATSKE,
Plaintiffs-Appellants,†
v.
MARK D. OSTERLOH, M.D.,
THE MEDICAL PROTECTIVE
COMPANY and
WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants-Respondents.
Submitted on Briefs: February 29, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: April 3, 1996
Opinion Filed: April
3, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If
"Special", JUDGE: THOMAS S. WILLIAMS
so indicate)
JUDGES: Brown, Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of David M. Skoglind, Esq. of Warshafsky,
Rotter, Tarnoff, Gesler, Reinhardt & Bloch, S.C. of Milwaukee.
Respondent
ATTORNEYSOn behalf of the defendants-respondents, the cause was
submitted on the brief of Paul H. Grimstad and John F. Mayer of Nash,
Spindler, Dean & Grimstad of Manitowoc.
Other
ATTORNEYS On behalf of the Wisconsin Academy of Trial
Lawyers, an
amicus curiae brief was submitted by Mark L. Thomsen of Cannon
& Dunphy, S.C. of Milwaukee.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED April
3, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 93-1555
STATE OF WISCONSIN IN
COURT OF APPEALS
KIM
NOWATSKE and
JULIE
NOWATSKE,
Plaintiffs-Appellants,
v.
MARK
D. OSTERLOH, M.D.,
THE
MEDICAL PROTECTIVE
COMPANY
and
WISCONSIN
PATIENTS
COMPENSATION
FUND,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Winnebago County: THOMAS S. WILLIAMS, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Kim and Julie Nowatske appeal from a trial
court judgment dismissing their complaint following a jury determination that
Dr. Mark D. Osterloh was not negligent in his treatment of Kim for a retinal
detachment condition.
On
appeal, the Nowatskes challenge a trial court evidentiary ruling which allowed
their medical expert witness to be impeached with evidence that the expert was
named as a defendant in two prior unrelated medical malpractice actions: one
dismissed and one pending. We conclude
that such evidence is inadmissible for impeachment purposes under § 906.08, Stats., and that the trial court erred
in admitting the evidence. However, we
hold that the error was harmless in this case.
We also reject the Nowatskes' further arguments that the trial court
erred by allowing a witness to use an ophthalmoscope to perform a brief
in-court demonstration and that there was no credible evidence to support the verdict. We affirm the judgment.
Background
This
action arises from the Nowatskes' April 1991 complaint alleging that Osterloh
negligently treated Kim in January 1989 when Osterloh used his finger, rather
than a tonometer, to measure Kim's intraocular pressure. The Nowatskes alleged that Osterloh's
“inadequate” postoperative examination negligently failed to confirm whether
Kim had vision in his right eye. A jury
rejected the Nowatskes' claim. We
previously certified this case to the Wisconsin Supreme Court on two
issues: (1) whether the pattern medical
malpractice jury instruction, Wis J I—Civil 1023, accurately states the law
of medical malpractice; and (2) whether the type of impeachment which occurred
in this case is permissible. The
supreme court accepted this case only on the first issue. The court upheld the pattern instruction and
remanded the remaining issues for our review.[1] See Nowatske v. Osterloh,
198 Wis.2d 419, 424, 543 N.W.2d 265, 266 (1996). Because the facts are already given in detail in the supreme
court's decision, see id. at 424-27, 543 N.W.2d at 266-68,
we will not separately state them here.
Instead, we will allude to only those which are necessary to the matter
under discussion.
Discussion
Impeachment
Evidence
The
Nowatskes contend that the trial court improperly allowed Osterloh to impeach
Dr. Jay Fleischman, one of their expert medical witnesses, under § 906.08(1), Stats.[2] The trial court denied the Nowatskes' motion
in limine which sought to prevent any reference during trial to the fact that
two medical malpractice claims, unrelated to the present action, had previously
been filed against Fleischman. As a
result, Fleischman was questioned on direct and cross-examination about these
actions.
Evidence
is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.
Section 904.01, Stats. Although evidence may be relevant, it may
nonetheless be excluded if its probative value is substantially outweighed by
the risk of unfair prejudice, confusion of the issues, the misleading of the
jury or other considerations. Section
904.03, Stats. Such evidentiary determinations are within
the trial court's broad discretion. State
v. Lindh, 161 Wis.2d 324, 348, 468 N.W.2d 168, 176 (1991). This court will reverse an evidentiary
ruling only if the trial court's determination represents a prejudicial misuse
of discretion. See id.
at 348-49, 468 N.W.2d at 176.
Fleischman
was cross-examined as follows:
Q. All right, Doctor, I think you told us this
morning you personally have been sued for medical negligence twice in response
to one of your counsel's questions? A. I have been named in two lawsuits.
Q. The first lawsuit you were named in has
been dismissed?
A. Yes.
Q. I take it it was without merit?
A. Correct.
Q. Doctors sometimes get sued without merit,
do you agree?
A. Yes.
Q. And the second suit is still pending?
A. That's correct.
Q. We don't know what the outcome of that
lawsuit will be?
A. No, we
don't.
We
agree with the Nowatskes that the trial court erred by allowing this evidence
to be admitted at trial. We find Lindh
instructive on the issue and reject Osterloh's argument that the supreme
court's only holding in that case was that the court of appeals erred by
substituting its discretion for that of the trial court's. See id. In Lindh, a criminal defendant
sought to introduce evidence under § 906.08(1), Stats., that allegations of professional misconduct had been
brought against the state's psychiatric expert. See Lindh, 161 Wis.2d at 358, 468 N.W.2d at
180. Reversing the court of appeals,
the supreme court held that the trial court did not err in excluding the
evidence, stating:
The character
of a witness may be impeached only in regard to matters which go directly to
his [or her] reputation for truth and veracity. We have long considered that on cross-examination into the
character of a witness, use of irrelevancies, insinuating that a person is of
bad moral character, tending to degrade him [or her] in the eyes of the jury,
is not a proper impeachment device.
Virtually by definition, such evidence is not relevant, tending only to
prejudice the jury against the witness.
Id. (citations omitted).
In
this case, evidence of the prior malpractice action and the pending action did
not cast light on Fleischman's character for truthfulness or
untruthfulness. See id.;
see also § 906.08(1), Stats. The criterion of relevancy is whether the
evidence sought to be introduced would shed any light on the subject of
inquiry. Lindh, 161
Wis.2d at 348, 468 N.W.2d at 176. The
subject of inquiry in this case was whether Osterloh was or was not negligent
in treating Kim. Before
cross-examination will be allowed, there must be a reasonable relationship
between the evidence sought to be introduced and the proposition to be proved. Id. There was no such connection in this case between Fleischman's
role as a defendant in the prior medical malpractice actions and his opinion
testimony in this case.
The
testimony elicited from Fleischman merely inquired whether he had been the
subject of the malpractice actions.
There was no testimony that in either of those proceedings he had
displayed a character for untruthfulness such that his credibility could
reasonably be questioned in this case.
On direct examination, Fleischman indicated that the first malpractice
claim was commenced on behalf of a plaintiff who died of heart problems, but
that the action against Fleischman had been dismissed without any determination
as to his alleged negligence.[3] The cross-examination established, for a
second time, the filing of that action and that the action had been dismissed
as against Fleischman. Fleischman's
testimony regarding the second case was limited to the fact that the case was
still pending. The cumulative effect of
this testimony did not have any bearing on Fleischman's credibility, and reference
to the actions did not detract from his expertise and ability to render an
opinion regarding the Nowatskes' claim against Osterloh. Instead, the testimony went only to whether
similar allegations had been made against Fleischman, which does not impact on
his credibility as a witness. Section
906.08, Stats., permits the
impeachment of a witness “only in regard to matters which go directly to his
[or her] reputation for truth and veracity.”
Lindh, 161 Wis.2d at 358, 468 N.W.2d at 180.
Thus,
we conclude that the trial court erred when it admitted evidence of the prior
unrelated medical malpractice actions.
However, this finding of error does not end our inquiry. See Town of Geneva v. Tills,
129 Wis.2d 167, 184, 384 N.W.2d 701, 708 (1986). Section 805.18(2), Stats.,
provides that no judgment shall be reversed or set aside or a new trial granted
“unless in the opinion of the court to which the application is made, after
an examination of the entire action or proceeding, it shall appear that the
error complained of has affected the substantial rights of the party.”
(Emphasis added.) A reversal is
required under § 805.18(2) only if the result might, within reasonable
probabilities, have been more favorable to the complaining party had the error
not occurred. Heggy v. Grutzner,
156 Wis.2d 186, 196, 456 N.W.2d 845, 850 (Ct. App. 1990). This requires that we weigh the effect of
the inadmissible evidence against the totality of the credible evidence
supporting the verdict. Tim
Torres Enters. v. Linscott, 142 Wis.2d 56, 78, 416 N.W.2d 670, 679 (Ct.
App. 1987).
Here,
all the jury learned from the improper questioning was that Fleischman had been
named as a defendant in two prior actions,
one which had been dismissed and another which was still pending. Furthermore, the cross-examination
established that the dismissed action “was without merit,” a statement which
favors, rather than discredits, Fleischman.
The cross-examination also established that “Doctors sometimes get sued
without merit,” a statement which also favors, rather than discredits,
Fleischman as to both actions. Finally,
we observe that the Nowatskes do not contend that this evidence surfaced in any
other portion of the trial, particularly in arguments to the jury. Given the mild and isolated treatment which
the evidence received and given the weight of the evidence which otherwise
supports the verdict (a matter we will discuss later), we conclude that the
evidence had no bearing on the ultimate verdict and therefore its admission was
harmless error. See Anello
v. Savignac, 116 Wis.2d 246, 252, 342 N.W.2d 440, 443 (Ct. App. 1983);
see also Tim Torres, 142 Wis.2d at 78, 416 N.W.2d at 679.
In-Court
Demonstration
The
Nowatskes also challenge the trial court's refusal to grant a new trial based
on Osterloh's demonstration of an ophthalmoscope by shining the instrument's
light in some of the jurors' eyes.
During Osterloh's direct testimony, he explained how an ophthalmoscope
works. His counsel then asked, “You can
focus it directly on one eye?” Osterloh
replied, “Oh, yes! Here, I'll
demonstrate it this way here ¼.” Osterloh then
flashed a beam of light at some of the jurors.
The trial court overruled the Nowatskes' objection, and Osterloh's
testimony continued without any further reference to the demonstration.
It
is within the trial court's wide discretion whether to a allow a witness to
give an illustration so long as it is not an attempt to represent what actually
happened. See Rude v.
Algiers, 4 Wis.2d 615, 621, 91 N.W.2d 198, 201-02 (1958). Osterloh's brief use of the ophthalmoscope
was not used to portray his eye examination or treatment of Kim. Instead, the event demonstrated how the
ophthalmoscope works. While we do not
approve of the involvement of jurors in such a demonstration, the event here
was isolated and momentary. Moreover,
it does not appear that this demonstration was again alluded to during the
trial. We see no basis for concluding
that the jury was compromised, confused or misled by this isolated and brief
event. We therefore uphold the trial
court's ruling that a new trial was not necessary.
Sufficiency of the
Evidence
Finally,
we address the Nowatskes' argument that there is no credible evidence to
support the jury verdict. We will
sustain a jury verdict if there is any credible evidence to support it. See Nieuwendorp v. American
Family Ins. Co., 191 Wis.2d 462, 472, 529 N.W.2d 594, 598 (1995). Our consideration of the evidence must be
done in the light most favorable to the verdict, and when more than one
inference may be drawn from the evidence, we are bound to accept the inference
drawn by the jury. See id.
The
Nowatskes maintain that their expert, Fleischman, testified that Osterloh
performed an “inadequate” postoperative examination and negligently failed to
confirm that Kim had vision the morning following surgery after he complained
of eye pain. They also contend that
testimony by Dr. Fred Reeser also supported the conclusion that Osterloh was
negligent in treating Kim.
However,
the testimony of Dr. Frank Myers, an expert witness in the field of
ophthalmology, supported Osterloh's treatment of Kim in the surgical and
preoperative and postoperative stages.
Myers testified that he disagreed with the suggestion by the Nowatskes'
expert that Osterloh was negligent by failing to use “slip knots” or “temporary
knots” when attaching a buckle to Kim's eye, which would have allowed the
sutures to be loosened in the event of elevating pressure during surgery. Myers opined that using the knots is
optional, not necessary, because a surgeon can just as easily cut a suture as
untie a knot. In support, he cited a
medical textbook which stated that when a “surgeon is not certain he [or she]
has correctly localized the break, [the surgeon] can use slip knots to
facilitate later repositioning of the buckle.”
Myers further testified that there was no need for Osterloh to have used
a temporary or slip knot because he had no problems “correctly localizing the
break” during Kim's surgery.
Regarding
the increase in Kim's intraocular pressure, Myers testified that it is “very
common” for there to be some elevation in intraocular pressure during surgery
to reattach the retina. Myers explained
that there is generally no reason for great concern or alarm if the pressure
goes up during surgery because “the eye eventually will compensate for
it.” He stated that not all surgeons
take measures to lower the pressure when it elevates during surgery “because
they expect that it gradually will come down.”
Myers testified that reasonably prudent options for a surgeon when there
is an increase in pressure include cutting or loosening the sutures, or
performing a paracentesis, which is placing a small knife or needle into the
anterior chamber of the eye to allow the fluid out, which will then lower the
pressure. Myers stated that Osterloh
was not negligent when he chose paracentesis to reduce the pressure during
Kim's operation. Myers also testified
that Osterloh did not violate the professional standard of care by using his
finger to test the intraocular pressure because the readings from an instrument
or tonometer during surgery have proven inaccurate after the buckle has been
placed to the eye by giving low readings.[4]
Regarding
the postoperative examination, Myers testified that Osterloh's examination of
Kim approximately six and one-half hours after surgery, at 4:30 a.m., was a
reasonable length of time for follow-up.
Myers also stated that it was reasonable for Osterloh to use his finger
instead of a tonometer to test Kim's intraocular pressure during this
visit. Myers concluded that under the
circumstances, Osterloh properly focused a beam of light from the
ophthalmoscope on Kim's right eye to see if he had light perception. Because Kim had just had surgery under
general anesthesia and had received two shots of a narcotic for pain, Myers stated
that a precise type of vision test was not required at that time, just a test
to determine his perception of the ophthalmoscope light. Myers stated that because Kim had been under
general, rather than local, anesthesia during the surgery, it was normal for
him to feel immediate pain in the eye after waking up.
Given
this testimony by Myers, we conclude that there is credible evidence in the
record for the jury's finding that Osterloh was not negligent in treating
Kim. To counter the testimony presented
by the Nowatskes' experts that Osterloh was negligent, Myers testified that
Osterloh's treatment during and after Kim's surgery was within the norms of
professional care. It is the jury's
responsibility to determine the credibility of the witnesses and the weight to
be afforded their testimony. See
Radford v. J.J.B. Enters., 163 Wis.2d 534, 543, 472 N.W.2d 790,
794 (Ct. App. 1991). On appeal, it is
this court's duty to look for credible evidence to sustain the jury's verdict,
not to search the record for evidence to sustain a verdict that the jury could
have reached, but did not. Id.
By
the Court.—Judgment affirmed.
[1] The supreme
court held that, when read as a whole, the instruction is not erroneous,
although it could be clarified and improved.
Nowatske v. Osterloh, 198 Wis.2d 419, 449, 543 N.W.2d 265,
276 (1996).
[2] Section
906.08(1), Stats., provides:
Evidence of character and conduct of witness. (1) Opinion and reputation evidence of character. Except as provided in s. 972.11(2), the
credibility of a witness may be attacked or supported by evidence in the form
of reputation or opinion, but subject to these limitations: a)
the evidence may refer only to character for truthfulness or
untruthfulness, and b), except with respect to an accused who testifies in his
or her own behalf, evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.