PUBLISHED
OPINION
Case No.: 95-2125
† Petition
for Review filed
Complete Title
of Case:
THOMAS J. KUKLINSKI and
ANTOINETTE M. KUKLINSKI, his wife,
Plaintiffs-Appellants,
†
v.
HUMBERTO A. RODRIGUEZ, M.D.,
WISCONSIN HEALTH CARE
LIABILITY INSURANCE PLAN
and WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants-Respondents,
WAUKESHA COUNTY,
MEDICARE and
MID AMERICAN LIFE
INSURANCE COMPANY,
Third Party Defendants.
Submitted on Briefs: June
11, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: July
2, 1996
Opinion Filed: July 2, 1996
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If “Special”, JUDGE: THOMAS P. DOHERTY
so indicate)
JUDGES: Wedemeyer,
P.J., Fine and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of
the plaintiffs-appellants, the cause was submitted on the briefs of Edward
P. Rudolph of Rudolph, Rudolph & Rudolph, of Elm Grove,
Wisconsin.
Respondent
ATTORNEYSOn behalf of
the defendants-respondents, the cause was submitted on the briefs of Randal
N. Arnold and Michael P. Russart of Hinshaw & Culbertson,
of Milwaukee.
COURT OF APPEALS DECISION DATED AND RELEASED July 2, 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. 95-2125
STATE
OF WISCONSIN IN COURT OF
APPEALS
THOMAS J. KUKLINSKI
and
ANTOINETTE M.
KUKLINSKI, his wife,
Plaintiffs-Appellants,
v.
HUMBERTO A. RODRIGUEZ,
M.D.,
WISCONSIN HEALTH CARE
LIABILITY INSURANCE
PLAN
and WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants-Respondents,
WAUKESHA COUNTY,
MEDICARE and
MID AMERICAN LIFE
INSURANCE COMPANY,
Third Party Defendants.
APPEAL from a judgment
of the circuit court for Milwaukee County:
THOMAS P. DOHERTY, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
FINE,
J. This is a medical-malpractice case. Thomas J. and Antoinette M. Kuklinski appeal
from a judgment entered against them as the result of a jury verdict finding
that Humberto A. Rodriguez, M.D., was not negligent—either with respect to his
care and treatment of Mr. Kuklinski's head injury or in connection with his
failure to inform them that a CT scan was an available diagnostic tool. The Kuklinskis raise two issues on this
appeal. First, they contend that there
was insufficient evidence to support the jury's finding that Dr. Rodriguez was
not negligent on the failure-to-inform issue.[1] Second, they assert that the trial court
improperly restricted their cross-examination of Dr. Rodriguez. We affirm.
I.
Mr. Kuklinski was
injured when he fell down stairs in his home.
He was taken to West Allis Memorial Hospital where he was seen by Dr.
Rodriguez, the only physician then on duty in the emergency room. As revealed by his handwritten notes, Dr.
Rodriguez initially assessed Mr. Kuklinski as having fallen “down some stairs
(to the basement of his house) while carrying a pitcher of beer,” and that
there was “[n]o head injury or LOC [loss of consciousness] apparent.”
(Parenthetical by Dr. Rodriguez.) Dr.
Rodriguez's notes indicated that Mr. Kuklinski was “very intoxicated” and
“uncooperative,” but was “awake” and “alert.”
Later, when Mr. Kuklinski's condition had changed, Dr. Rodriguez added
to his notes that Mr. Kuklinski “may have been uncon[scious] for 5 min.” The report given to the hospital by the
emergency medical technicians who brought Mr. Kuklinski to the hospital noted
that Mr. Kuklinski's family indicated that he had been unconscious for five
minutes, and this statement by the family was repeated on the hospital's
nursing notes. The nursing notes also
reported that Mrs. Kuklinski “stated that [Mr. Kuklinski] had 6–8 pitchers of
beer.”
Mr. Kuklinski's
condition deteriorated after Dr. Rodriguez's initial assessment, and,
ultimately, he displayed symptoms of a serious head injury. At 5 a.m., approximately two hours and
fifteen minutes after he arrived at the hospital, Mr. Kuklinski was in a coma
and Dr. Rodriguez put a tube in his trachea to help him breathe. Dr. Rodriguez ordered a CT scan for Mr. Kuklinski.
Although the Kuklinskis dispute this, Dr. Rodriguez testified that he was
“pretty sure it was before the intubation.”
The CT technician was called from home, and arrived at the hospital at
5:15 a.m. The scan was done at
approximately 5:45 a.m. The scan showed
an epidural hematoma (bleeding in the brain).
It is undisputed that Dr. Rodriguez did not discuss with either Mr. or
Mrs. Kuklinski that a CT scan was available.
The Kuklinskis contend that this was negligence; the jury determined
that it was not. We discuss in turn the
failure-to-inform issue and the trial court's evidentiary ruling.
II.
A. Failure-to-Inform.
Wisconsin law “requires
that a physician disclose information necessary for a reasonable person to make
an intelligent decision with respect to the choices of treatment or
diagnosis.” Martin v. Richards,
192 Wis.2d 156, 175, 531 N.W.2d 70, 78 (1995).
It is a right based in both the common law of this state and in statute.
Ibid. Section 448.30, Stats., codified the duty-to-disclose
law recognized by Scaria v. St. Paul Fire & Marine Ins. Co.,
68 Wis.2d 1, 13, 227 N.W.2d 647, 654 (1975), see Martin,
192 Wis.2d at 174–175, 531 N.W.2d at 78, and provides:
Information on alternate modes of
treatment. Any physician
who treats a patient shall inform the patient about the availability of all
alternate, viable medical modes of treatment and about the benefits and risks
of these treatments. The physician's
duty to inform the patient under this section does not require disclosure of:
(1) Information
beyond what a reasonably well-qualified physician in a similar medical
classification would know.
(2) Detailed
technical information that in all probability a patient would not understand.
(3) Risks
apparent or known to the patient.
(4) Extremely
remote possibilities that might falsely or detrimentally alarm the patient.
(5) Information
in emergencies where failure to provide treatment would be more harmful to the
patient than treatment.
(6) Information in cases
where the patient is incapable of consenting.
Whether a physician is
negligent for not disclosing information requires a two-fold analysis: (1) “what a reasonable person under the
circumstances then existing would want to know, i.e., what is reasonably necessary
for a reasonable person to make an intelligent decision with respect to the
choices of treatment or diagnosis,” Martin, 192 Wis.2d at 174,
531 N.W.2d at 78; and (2) what the physician knew at the time it is contended
that he or she should have made the disclosure, id., 192 Wis.2d
at 195, 531 N.W.2d at 86; see also § 448.30(1), Stats. Thus, a
physician is not negligent for failing to disclose unless he or she either had
sufficient knowledge about the patient's condition to trigger the physician's
awareness that the information was reasonably necessary for the patient or the
patient's family to make an intelligent decision regarding the patient's
medical care, or should have had that knowledge. Martin, 192 Wis.2d at 195, 531 N.W.2d at 86. Although the issue can be taken from the
jury if the evidence compels that result as a matter of law, id.,
192 Wis.2d at 195–196, 531 N.W.2d at 86, whether a physician is negligent for
failing to disclose is a jury question, id., 192 Wis.2d at
176–177, 531 N.W.2d. at 79.
The Kuklinskis do not
challenge either the trial court's jury instructions on the duty-to-disclose
issue or the way the special-verdict question was phrased.[2]
Rather, they contend in effect that the facts of this case are so clear that
the jury's affirmative response to the special-verdict question asking whether
Dr. Rodriguez was negligent on the duty-to-disclose issue was required as a
matter of law. We disagree.
The scope of our review
of the jury's verdict is narrow. “No
motion challenging the sufficiency of the evidence as a matter of law to
support a verdict, or an answer in a verdict, shall be granted unless the court
is satisfied that, considering all credible evidence and reasonable inferences
therefrom in the light most favorable to the party against whom the motion is
made, there is no credible evidence to sustain a finding in favor of such
party.” Rule 805.14(1), Stats. Special deference is given to a jury verdict
that is approved by the trial court. Fehring
v. Republic Ins. Co., 118 Wis.2d 299, 305-306, 347 N.W.2d 595, 598
(1984). Thus, where, as here, the trial
court has approved the jury verdict, the scope of our review is even
narrower: the verdict may not be
overturned unless “there is such a complete failure of proof that the verdict
must be based on speculation.” Coryell
v. Conn, 88 Wis.2d 310, 315, 276 N.W.2d 723, 726 (1979). As proponents of a finding that Dr.
Rodriguez was negligent, the Kuklinskis had the burden of proving negligence
“to a reasonable certainty by the greater weight of the credible
evidence.” Wis J I-Civil 200.
There was sufficient evidence in this case to support the jury's
determination that the Kuklinskis had not met their burden of proof.
The focus of an
evaluation of whether a physician is negligent for failing to disclose
available methods of diagnosis or treatment is on the “circumstances then
existing” in the particular case. Martin,
192 Wis.2d at 174, 531 N.W.2d at 78.
Here, evidence in support of the jury's verdict concerns not Mr.
Kuklinski's actual condition viewed in retrospect, but, as the trial
court recognized, what Dr. Rodriguez reasonably knew it to be.
Brian Lochen, M.D., who
testified as an expert witness for the Kuklinskis, and who testified that he
was “board certified in family practice” and that he worked “half time” in the
emergency room at a hospital in Reedsburg, Wisconsin, and “half time in the
field of addiction medicine treatment,” testified on direct-examination that an
emergency-room physician would refer a patient for a CT scan, and would so
inform the family, “if that physician had determined that this was a patient
with a head injury who warranted a CT scan.”
Dr. Rodriguez testified that as a result of his initial diagnosis he did
not believe that Mr. Kuklinski had suffered a head injury, and, as noted, this
evaluation is reflected in his initial notes.
James J. Cicero, M.D., chief of the emergency medical department at the
Ramsey Medical Center in St. Paul, Minnesota, who testified as an expert
witness for Dr. Rodriguez, was asked by the Kuklinskis' attorney whether they
“should have been consulted regarding the availability of immediate CT scan as a
form of diagnosis and treatment that could be used in the context of Mr.
Kuklinski's injury.” Dr. Cicero
responded: “I don't believe that's
something that would be normally done in that first period of time, no.”[3] Later, when Mr. Kuklinski's condition
worsened, Dr. Rodriguez ordered the CT scan.
Dr. Rodriguez's initial
diagnosis of Mr. Kuklinski was supported by Dr. Lochen's testimony that using
the Glasgow Coma Scale, which he described as a tool to “assess a person's
central nervous system awareness, alertness, that's used in trauma cases,” Mr.
Kuklinski presented at the hospital with a score of fourteen out of a possible
“perfect score” of fifteen. He agreed
with Dr. Rodriguez's counsel that most medical texts classify a Glasgow Coma
Scale of between thirteen and fifteen as indicating “minor head injury.” Albert Butler, M.D., a neurosurgeon and former
chairman of the Division of Neurological Surgery at Northwestern University,
who testified as an expert witness for the Kuklinskis, also testified that Mr.
Kuklinski's symptoms at his presentation at the hospital would have permitted a
classification on the Glasgow Coma Scale of either a fourteen or a
fifteen. Dr. Lochen agreed with Dr.
Rodriguez's counsel that the type of brain bleeding developed by Mr. Kuklinski
was “mighty rare.” Significantly, the
jury credited Dr. Rodriguez's version of the events, and found that he was not
negligent “with respect to his care and treatment of Mr. Kuklinski.” As the trial court recognized, this
encompasses the jury's determination that Dr. Rodriguez had no reason to know that
Mr. Kuklinski had a serious head injury before he says that he did know it.
As noted, we must give
the evidence in this case all reasonable inferences in support of the jury's
answer to the special-verdict question, even though the Kuklinskis point to
other evidence in the record—some of it disputed—that would have permitted the
jury to reach a different result. Given
what the jury could reasonably conclude Dr. Rodriguez knew at the time that the
Kuklinskis claim that he should have discussed with them the availability of a
CT scan, the jury's finding that Dr. Rodriguez was not negligent on the
informed-consent issue must be upheld.
B. Restriction
on Cross-Examination.
At the start of his
cross-examination of Dr. Rodriguez, the Kuklinskis' trial counsel asked what
Dr. Rodriguez had done to prepare for his trial testimony, other than reviewing
the depositions and meeting with his lawyer:
QHave you done anything else to get ready
for your testimony?
AI guess I don't know what you're getting at.
QHave you rehearsed your testimony?
ANo, I have not.
QHas [Dr. Rodriguez's trial lawyer]
suggested to you that you should answer certain questions in certain ways?
[Dr.
Rodriguez's trial lawyer]: Objection,
Judge.
THE COURT:
He may answer.
THE WITNESS:
No, he has not. He has given me
legal counsel about -- and also a lot of information which I found to be very
helpful about what's going on here.
Following
an objection by Dr. Rodriguez's counsel, the trial court excused the jury. The
Kuklinskis' lawyer then told the court that he had information that what he
called “rehearsal” had taken place in the courtroom: that Dr. Rodriguez's lawyer took the witness stand and was
questioned by a lawyer for the hospital, which was no longer a defendant, while
Dr. Rodriguez sat in the jury box and watched.
The Kuklinskis' lawyer argued:
I
believe I'm entitled to ask the witness [Dr. Rodriguez] if anybody has shown
him how to testify in this case, and in particular, I would like to ask the
witness whether or not there has been a dress rehearsal, as a matter of fact in
this courtroom where [Dr. Rodriguez's trial lawyer] acted his part and [the
hospital's lawyer] cross examined him in the presence of people that were not a
part of this law firm, and whether or not that practice session was videotaped
so that he could continue to rehearse when [Dr. Rodriguez's trial lawyer] was
showing him what to say.
In
response to the trial court's question, Dr. Rodriguez's lawyer explained his
version of the event:
I
believe it was the Friday before trial, I brought Dr. Rodriguez to the
courtroom to show him the courtroom where he'd be testifying. I brought [the hospital's lawyer], who had
represented the hospital during the course of the lawsuit, and a court reporter
with a video camera, and I asked [the hospital's lawyer] to conduct a mock
cross-examination of Dr. Rodriguez in order to give him the feeling of what
it's like to sit up here and testify and answer nasty questions from obnoxious
defense counsel -- defense counsel, in this case, since it was [the hospital
lawyer].
Dr.
Rodriguez's lawyer denied the allegation that he sat on the witness stand
answering questions while Dr. Rodriguez watched from the jury box, and repeated
this denial after the trial court precluded further examination into that area:
I
just want to state that it is absolutely untrue that I sat in the witness stand
and gave responses to questions while it was videotaped and Dr. Rodriguez
watched. [The hospital's lawyer] is
available by phone, you can talk to her; the videographer is available by
phone, you can talk to her if you doubt my representation to the Court as an
officer to the Court in that regard.
The trial court held
that the work-product doctrine prevented further inquiry into whether Dr.
Rodriguez's lawyer had put on the “rehearsal.”[4] Although the trial court's work-product
rationale was faulty, we affirm nevertheless because the Kuklinskis made an
insufficient offer of proof to permit further inquiry once Dr. Rodriguez denied
both that he had “rehearsed” his testimony and that his lawyer had “suggested”
to him that he “should answer certain questions in certain ways.” See State v. Holt, 128
Wis.2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985) (trial court will be
affirmed if it reaches proper result, albeit for the wrong reason).
The work-product
doctrine protects against the forced disclosure of “documents and tangible
things” that are “prepared in anticipation of litigation or for trial,” Rule 804.01(2)(c)1, Stats., as well as other information
that may not have been reduced to tangible form, Meunier v. Ogurek,
140 Wis.2d 782, 790, 412 N.W.2d 155, 158 (Ct. App. 1987); 8 Charles A. Wright et al., Federal Practice and
Procedure § 2024, at 337–338 (2d ed. 1994). Additionally, the doctrine's protection for work-product material
does not disappear once the trial has begun, although a different standard
governing disclosure may apply. United
States v. Nobles, 422 U.S. 225, 239 (1975). Clearly, if the “rehearsal” was as the Kuklinskis' trial lawyer
described it, whatever work-product protection that might have cloaked the
exercise would have been waived—not only because it was done in front of court
personnel or others not under a duty of confidentiality with respect to the
event, see 8 Wright et al.,
supra, § 2024 at 369 (disclosure of work-product to third persons does
not waive the privilege “unless it has substantially increased the
opportunities for potential adversaries to obtain the information”), but also
because Rule 906.12, Stats., makes available to an
opponent anything that a witness uses to “refresh the witness's memory for the
purpose of testifying, either before or while testifying.”[5] The trial court, however, had no evidentiary
basis upon which to make a ruling based on either work-product or Rule 906.12; the only information
presented were the conflicting statements of the opposing lawyers.
An effective offer of
proof under Rule 901.03, Stats., must satisfy the trial court
that the evidentiary hypothesis advanced by the proponent of the evidence can
be sustained. State v. Robinson,
146 Wis.2d 315, 329, 431 N.W.2d 165, 170 (1988). The Kuklinskis' trial counsel specifically told the trial court
that they were not seeking production of the video tape. In light of the unresolved conflict between
the lawyers' representations to the trial court about the nature of the
incident, and in light of the fact that the Kuklinskis' lawyer was relaying
hearsay information while the lawyer for Dr. Rodriguez was recounting his
personal recollection of the event as “an officer of the court,” we cannot say
that the trial court's failure to permit further cross-examination of Dr.
Rodriguez about the alleged “rehearsal” was error; in essence, the trial court
had determined that the inquiry already made into that area was
sufficient. See Rule 904.03, Stats. (“Although relevant, evidence may be excluded ... by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”). We thus
conclude that there was no error. See
Kolpin v. Pioneer Power & Light Co., 162 Wis.2d 1, 30, 469 N.W.2d
595, 607 (1991) (appellate court will uphold decision vested in trial court's
discretion if there are any facts of record that support it).
By the Court.—Judgment
affirmed.
[1] The Kuklinskis also contend that Dr. Rodriguez was required as a matter of law to inform them about the CT scan. As we explain below, however, this is a question for the jury. See Martin v. Richards, 192 Wis.2d 156, 172–177, 531 N.W.2d 70, 77–79 (1995).
[3] As the Kuklinskis
point out correctly, custom of the profession does not circumscribe the
physician's duty to make proper disclosure to the patient of the various
alternatives that are available for diagnosis and treatment. See Scaria v. St. Paul Fire
& Marine Ins. Co., 68 Wis.2d 1, 12–13, 227 N.W.2d 647, 653–654
(1975). Nevertheless, the jury could
have considered this evidence in its assessment of what Dr. Rodriguez
reasonably knew at the time that he was evaluating Mr. Kuklinski. Significantly, there is nothing in the
appellate record or the briefs that indicates that the Kuklinskis sought to
have the jury instructed on the limited purpose for which they could consider
this evidence. See Rule 901.06, Stats.:
Limited admissibility.
When evidence which is admissible as to one party or for one purpose but
not admissible as to another party or for another purpose is admitted, the
judge, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.
The trial court need not give an instruction under Rule 901.06 unless requested to do so. See State v. Stawicki, 93 Wis.2d 63, 76, 286 N.W.2d 612, 618 (Ct. App. 1979).
[4] The trial court's
ruling was, as it admitted to counsel, rushed because of the Kuklinskis'
failure to give advance warning of the potential problem. Thus, prior to a short break, the trial
court told counsel that it was unhappy over how the dispute over the alleged
“rehearsal” had been presented:
THE
COURT: What I really resent, I really
resent on a Friday afternoon that we're going into this. You could have told me this yesterday, the
day before, the day after it happened.
This was going to be a problem.
....
THE
COURT: I am trying to get this jury
done. I am trying to get this jury
trial done. You may have a legitimate
complaint, but I sure am irritated that you lay it on me now.
After the break, the trial court explained why it would not permit any
more cross-examination of Dr. Rodriguez about the alleged rehearsal:
My
concern, and all I'm going to do is give you a ruling, but my concern, [the
Kuklinskis' lawyer], is one of the things that I started off in the beginning
of the trial, I said if there's anything that we can handle in the absence of
the jury, not on their time, do it at night, come in early, let's do it on
nonjury time.
I'm
going to give -- this is jury time. I will
give you as much time and consideration as you've allowed me under the
circumstances. I don't have time to
research this issue, to look at videotapes, or to conduct an ex parte hearing. I'm not going to do that to this jury. It's not necessary. Shouldn't have happened this way. The best argument I've heard is that it's
work product.
This questioning is, therefore, the objection sustained and we'll go on to another area.
[5] Rule 906.12, Stats., provides:
Writing used to refresh memory.
If a witness uses a writing to refresh the witness's memory for the purpose
of testifying, either before or while testifying, an adverse party is entitled
to have it produced at the hearing, to inspect it, to cross-examine the witness
thereon, and to introduce in evidence those portions which relate to the
testimony of the witness. If it is
claimed that the writing contains matters not related to the subject matter of
the testimony, the judge shall examine the writing in camera, excise any
portions not so related, and order delivery of the remainder to the party
entitled thereto. Any portion withheld
over objections shall be preserved and made available to the appellate court in
the event of an appeal. If a writing is
not produced or delivered pursuant to order under this rule, the judge shall
make any order justice requires, except that in criminal cases when the
prosecution elects not to comply, the order shall be one striking the testimony
or, if the judge in the judge's discretion determines that the interests of
justice so require, declaring a mistrial.
Although the rule uses the term “writing,” as does Rule 612 of the Federal Rules of Evidence, most state courts whose rules are patterned on the federal rules “have construed `writing' to mean anything.” Gregory P. Joseph & Stephen A. Saltzburg, Evidence in America, ch. 46, pp. 5–6 (1987).