COURT OF
APPEALS
DECISION
DATED AND
FILED
August 9,
2000
Cornelia G.
Clark
Clerk, Court of
Appeals
of
Wisconsin
NOTICE
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.
No. 99-0101
STATE OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
Mark B. Watts, individually and
as Special
Administrator of the Estate of
Vicky L. Watts,
Plaintiff-Appellant,
Blue Cross Blue Shield United of
Wisconsin,
Involuntary-Plaintiff,
v.
The Medical Protective Company,
Sherry L.
Prowatzke, Physicians Insurance
Company of
Wisconsin, Inc., Beth Ann Lux,
and Wisconsin
Patients Compensation Fund,
Defendants-Respondents,
Wisconsin Insurance Corporation,
Defendant.
APPEAL from a judgment of the circuit court for Waukesha County: KATHRYN
W. FOSTER, Judge. Affirmed.
Before Brown, P.J., Nettesheim and Snyder, JJ.
¶1. PERCURIAM.Mark B. Watts, individually and as the special
administrator of the estate of his late wife, Vicky L. Watts, appeals from a
judgment dismissing medical malpractice claims against the physicians who
treated Vicky and their insurers. The claims on appeal relate to the jury's
determination that the physicians were not negligent, the calculation of
damages, and recusal of the trial judge. Because we affirm on the
negligence-related issues, we do not reach the damages-related issues. We
also affirm the trial judge's refusal to recuse herself.
¶2. Vicky was seen at Dr. Sherry Prowatzke's clinic by a nurse
practitioner on October 12 and 19, 1992. Dr. Prowatzke, an
obstetrician/gynecologist, allegedly failed to diagnose Vicky's diabetes.
Vicky was treated on October 20 in a hospital emergency room by Dr. Beth Ann
Lux who allegedly did not properly evaluate Vicky before treating her. The
emergency room treatment was allegedly inappropriate for Vicky's condition
and, according to the plaintiff, caused her death. The jury did not find
either physician negligent.
¶3. Watts argues that the circuit court erroneously instructed the jury
as to the negligence of Dr. Prowatzke. A circuit court has broad discretion
with regard to jury instructions and must give instructions whose overall
meaning correctly states the law. See Johnson v. Agoncillo, 183
Wis. 2d 143, 148, 515 N.W.2d 508 (Ct. App. 1994). The instructions must also
be related to the evidence. Cf. Brown v. Dibbell, 220 Wis.
2d 200, 211, 582 N.W.2d 134 (Ct. App. 1998), aff'd, 227 Wis.2d 28,
595 N.W.2d 358 (1999).
¶4. The parties debated the instruction about Dr. Prowatzke's standard of
care. The court ultimately instructed the jury as follows:
Dr. Prowatzke ... [was] required to use the degree of care, skill and
judgment which reasonable doctors who in the case of Dr. Prowatzke
specialize in OB/GYN, ... having due regard for the state of medical
science at the time Vicky Watts was treated.
¶5. Watts objected to this instruction and argued that Dr. Prowatzke
should have been required to use the degree of care, skill and judgment of a
reasonable doctor who specializes in obstetrics/gynecology but is engaged in
the practice of primary medical care and treatment. In other words,
according to Watts, Dr. Prowatzke should have been held to the standard of a
reasonable obstetrician/gynecologist who treats a person with a primary
health care need. For this proposition, Watts relies upon
Johnson. Watts claims that Johnson holds
that a doctor treating a patient outside of his or her specialty is held to
the standard of care of a reasonable doctor in that specialty who treats a
patient with a medical condition outside of the specialty. Watts is
wrong.
¶6. In Johnson, the plaintiffs attempted to hold a family
practitioner treating a high-risk obstetrical patient to the standard of an
average physician treating such high-risk patients, rather than to the
standard of the average family practitioner who treats such patients. See
Johnson, 183 Wis.2d at 150. We rejected the plaintiffs'
proposed standard, explaining that the family practitioner's decision to
treat a high-risk obstetrical patient did not transform the family
practitioner into a physician who treats high-risk obstetrical patients.
See id. at 152. The family practitioner remained a family
practitioner who treated obstetrical patients and was `"required to use the
degree of care, skill, and judgment which is usually exercised in the same
or similar circumstances' by the average physician in that class." Id.
(quoted source omitted). As an example of the application
of this standard, the court observed that a cardiologist who treats a cancer
patient is held to the standard of care applicable to a cardiologist, not to
the standard of care applicable to an oncologist. See id. at
151-52.
¶7. Johnson does not stand for the proposition offered by
Watts. The court correctly instructed the jury regarding Dr. Prowatzke's
standard of care.
¶8. Watts next complains about the circuit court's decisions regarding
the testimony and questioning of expert witnesses. The court precluded Dr.
Sanford Mallin, Watts's endocrinology expert, from testifying as to
whether Dr. Prowatzke met the standard of care in treating Vicky. During
direct examination, the court required Watts's counsel to lay a foundation
for Dr. Mallin's opinion about the standard of care applicable to Dr.
Prowatzke, an obstetrician/gynecologist. Dr. Mallin conceded that he is not
an expert in the field of obstetrics and gynecology. Because Dr. Mallin did
not have the requisite basis for rendering an opinion about the standard of
care to be met by an obstetrician/gynecologist, the court precluded his
testimony on that question.1
¶9. Whether a witness is qualified to render an expert opinion is within
the circuit court's discretion. See Leathem Smith Lodge, Inc. v.
State, 94 Wis. 2d 406, 418, 288 N.W.2d 808 (1980). We conclude that
the court applied a proper legal standard to the available facts about Dr.
Mallin's areas of expertise and reached a reasonable decision. Watts did not
lay a foundation for Dr. Mallin's expertise in the field of obstetrics and
gynecology. Dr. Mallin testified that his experience in the field was
limited to a portion of his one-year internship which occurred more than
forty years before. Because Watts did not offer any evidence that Dr.Mallin
was familiar with the standards of practice of obstetrician/gynecologists,
the court properly precluded this testimony because Dr. Mallin lacked the
requisite expertise. See Kerkman v. Hintz, 138 Wis. 2d
131, 149, 406 N.W.2d 156 (Ct. App. 1987), aff'd in part, rev'd in
part, 142 Wis. 2d 404, 418 N.W.2d 795 (1988) (Medical doctors can
testify regarding the conduct of other physicians "if there is a sufficient
factual showing that the medical witness is qualified by `knowledge, skill,
experience, training, or education' ... to give the required opinion.")
(citation omitted).
¶10. Watts next complains that Dr. Diane Elson, a defense
endocrinologist, was erroneously permitted to testify that Dr. Prowatzke had
complied with the standard of care even though Dr. Elson was not qualified
to render such an opinion. We do not address this appellate issue because
Watts did not object to this testimony at trial. Therefore, this issue is
waived on appeal. See Vollmer v. Luety, 156 Wis. 2d 1, 10-11, 456
N.W.2d 797 (1990) (we correct errors made by the circuit court; we do not
rule on matters never considered by that court).
¶11. Watts also complains that his cross-examination of Dr. Elson was
hampered because his counsel was not able to confine Dr. Elson's answers to a
"yes" or "no" response. The scope of cross-examination is within the circuit
court's discretion, and we will not reverse unless an erroneous exercise of
discretion affected Watts's substantial rights and probably affected the
outcome of the trial. See Peissig v. Wisconsin Gas Co.,
155 Wis. 2d 686, 702, 456 N.W.2d 348 (1990).
¶12. While counsel may seek relief from the court if a witness's
testimony does not respond to the question, Watts does not offer any
authority for the proposition that counsel has the right to control a
witness on cross-examination to the extent that the witness may only answer
"yes" or "no" to counsel's questions. The court reminded counsel that if he
felt Dr. Elson's answer was not responsive to the question, he could move to
strike the answer. We see no misuse of the court's discretion in its
handling of Dr. Elson's testimony. Cf. id. (scope of
cross-examination is within court's discretion).
¶13. Watts also challenges the court's refusal to permit him to read to
the jury certain portions of a discovery deposition taken of Dr. John Dunn,
an emergency room physician who was an expert on behalf of Dr. Beth Ann Lux.
Dr. Lux treated Vicky in a hospital emergency room and allegedly did not
properly evaluate Vicky before treating her. The emergency room treatment
was allegedly inappropriate for Vicky's diabetic condition and caused her
death. While the court allowed Watts to read some portions of Dr. Dunn's
deposition in response to those portions offered by Dr. Lux, Watts argues
that under Wis. Stat. §804.07(1) (1997-98),2
he was entitled to read any deposition portions he chose.
¶14. We disagree with Watts's premise. Whether and which portions of a
deposition will be read to the jury is a discretionary decision for the
court. See Gonzalez v. City of Franklin, 137 Wis.2d 109,
139, 403 N.W.2d 747 (1987) (evidentiary decisions are within circuit court's
discretion). Wisconsin Stat. §804.07(1)(d) provides that "[i]f only part of
a deposition is offered in evidence by a party, an adverse party may require
the party to introduce any other part which ought in fairness to be
considered with the part introduced, and any party may introduce any other
parts." We restrict our analysis to the three deposition excerpts Watts
discusses on appeal.3
Looking to the excerpts introduced by Dr. Lux, we conclude that the court
properly exercised its discretion in denying Watts's request for these
excerpts.
¶15. One excerpt deals with the ease of diagnosing diabetes and its
symptoms, another excerpt deals with the importance of a patient's medical
history in diagnosing diabetes, and the final excerpt deals with specific
symptoms of diabetes such as fatigue, vaginal yeast infection, and urinary
urgency and frequency. Watts claims that these excerpts were necessary to
address the diagnosis of diabetes, which related to Dr. Prowatzke's care. The
court sustained the objections to these excerpts because the deposition did
not reveal that Dr. Dunn had the necessary qualifications to address the
standard of care for a reasonable obstetrician/gynecologist such as Dr.
Prowatzke. The court found that while Dr. Dunn was familiar with the
diagnosis of diabetes, his current professional experience in emergency
medicine and his previous family practice experience did not qualify him to
render an opinion regarding the standard of care for an
obstetrician/gynecologist. See Kerkman, 138 Wis. 2d at 149.
Fairness under Wis. Stat. §804.07(1) did not dictate introducing excerpts of
deposition testimony which lacked the necessary foundation. The record
supports this discretionary determination.
¶16. Watts next argues that the circuit court erroneously precluded him
from using learned treatises to examine Drs. Prowatzke, Lux and Carmella
Barr (a defense expert).4
We review the circuit court's learned treatise rulings for misuse of
discretion. See Broadhead v. State Farm Mut. Auto. Ins. Co., 217
Wis. 2d 231, 245, 579 N.W.2d 761 (Ct. App. 1998). A learned treatise is
admissible if "a witness expert in the subject testifies, that the writer of
the statement in the treatise ... is recognized in the writer's profession
or calling as an expert in the subject." Wis. Stat. §908.03(18).
¶17. We will assume, without deciding, that the circuit court erroneously
barred the use of learned treatises with the various witnesses. However, we
conclude that any such error was harmless because Watts was able to make use
of the learned treatises in another fashion. See Heggy v.
Grutzner, 156 Wis. 2d 186, 196-97, 456 N.W.2d 845 (Ct. App. 1990)
(an error is harmless if there is no reasonable possibility that the error
contributed to the result).
¶18. Watts called Dr. Lux adversely. During adverse examination, Watts
handed Dr. Lux an excerpt from Williams on Endocrinology. Dr. Lux
stated that she was not familiar with the treatise. Watts offered to read
some of the material to Dr. Lux to see if she agreed with the statements
contained in it. Dr. Lux's counsel objected on foundation grounds. The court
sustained the objection because Dr. Lux was not familiar with the treatise
and did not recognize it as a learned treatise. Watts then asked Dr.
Lux if she was familiar with Joslin's on Diabetes. She stated that
she had not read the book and was not qualified to answer whether
Joslin's is considered the "Bible of the textbook on diabetes by
endocrinologists."
¶19. Later, on cross-examination of Dr. Lux, Watts handed Dr. Lux a
portion of an article from Williams and they discussed its contents
and whether Dr. Lux agreed with it. There was no objection. Therefore, Watts
was not prejudiced by the circuit court's learned treatise ruling because he
made use of a treatise anyway.
¶20. Watts also tried to cross-examine Dr. Barr, Dr. Prowatzke's expert
obstetrician/gynecologist, using Joslin's. Counsel objected on
foundation grounds. The court sustained the objection and gave Watts a
chance to lay foundation. Although Dr. Barr stated that she had not heard of
Joslin's, Watts asked Dr. Barr questions based on the information
contained in Joslin's, and she answered them. Watts circumvented Dr.
Barr's lack of familiarity with Joslin's by questioning her using
information gleaned from that treatise without referring to the source of
that information. Therefore, Watts was not prejudiced by the circuit court's
learned treatise ruling.
¶21. During cross-examination, Watts attempted to direct Dr. Prowatzke to
a passage from Joslin's which related to one of the decedent's
symptoms, but was barred by the court because Dr. Prowatzke was not familiar
with the treatise. Assuming that this ruling was error, the result was
nevertheless correct. See Mueller v. Mizia, 33 Wis. 2d
311, 318, 147 N.W.2d 269 (1967) (we will not reverse a correct decision even
though the reason for the decision may have been erroneously expressed). The
treatises were entered into evidence through the testimony of Dr. Mallin who
was not permitted to opine on the standard of care for
obstetrician/gynecologists like Dr.Prowatzke.5
Therefore, the treatises were not properly linked to Dr. Prowatzke.
¶22. Watts argues that the trial judge was biased because she knew Dr.
Lux's prior and present husbands, often ruled in favor of the defense in
disputed matters, and acted as an advocate, rather than an impartial
decision maker, during trial. Because we have upheld the circuit court
rulings challenged by Watts, we cannot conclude that these rulings evidenced
bias.
¶23. We turn to Watts's claim that the trial judge's acquaintance with
Dr. Lux's prior and present husbands should have been a basis for recusal.
At the hearing on postverdict motions, the trial judge noted her contacts
with Dr. Lux's current husband, a police chief, when the judge served as an
assistant district attorney prior to taking the bench in 1988. As to Dr.
Lux's previous husband, the judge stated that he was an assistant
corporation counsel while the judge was an assistant district attorney. They
did not work on the same cases, and the judge supported his opponent in a
judicial race several years before the Watts trial. The judge stated that
she had no affinity for him and did not consider him a coworker or a social
contact. The judge stated that she had no personal interest in any of the
parties in this case.
¶24. We agree with the trial judge that Watts has not demonstrated
grounds for recusal under Wis. Stat. §757.19(2)(f) and (g). The standard for
recusal of a judge under §757.19(2)(f) is an objective one, see State v.
American TV & Appliance, 151 Wis. 2d 175, 181-82, 443 N.W.2d 662
(1989), and depends on whether the judge "has a significant financial or
personal interest in the outcome of the matter." Section 757.19(2)(f). Here,
the trial judge found that she did not have any financial or personal
interest. This finding is not clearly erroneous.
¶25. Watts also alleges that the judge should have recused herself
because "he or she cannot, or it appears he or she cannot, act in an
impartial manner." Wis. Stat. §757.19(2)(g). This basis for recusal
"concerns not what exists in the external world subject to objective
determination, but what exists in the judge's mind." American TV,
151 Wis. 2d at 182. This is a subjective determination for the judge himself
or herself to make. See id. at 183.
¶26. Here, the trial judge thoroughly explained the extent of her
acquaintance with Dr. Lux's previous and present husbands and determined
that this knowledge did not render her less than impartial. This is
sufficient under American TV, see State v. Harrell,
199 Wis. 2d 654, 664, 546 N.W.2d 115 (1996), and we must abide by the
judge's subjective assessment of her impartiality. See American
TV, 151 Wis.2d at 186. Because we conclude that the trial judge was
not required to recuse herself, we reject Watts's request for a new trial on
the basis that the judge presided over the trial.6
By the Court.-Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule
809.23(1)(b)5.
1 Dr. Mallin was permitted to render numerous other
opinions which were within his area of expertise.
2 All references to the Wisconsin Statutes are to
the 1997-98 version unless otherwise noted.
3 Watts states that several other excerpts were
barred by the court. We will only consider those passages specifically
argued on appeal. See Vesely v. Security First Nat'l Bank,
128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593 (Ct. App. 1981) (we will not
independently develop a litigant's argument).
4 Watts's expert, Dr. Mallin, an endocrinologist,
testified that the treatises were learned treatises in the field of
endocrinology.
5 We upheld this ruling earlier in this
opinion.
6 To the extent we have not addressed an argument
raised on appeal, the argument is deemed rejected. See State v.
Waste Management of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147
(1977) ("An appellate court is not a performing bear, required to dance to
each and every tune played on an appeal.").