COURT OF APPEALS DECISION DATED AND FILED October 31, 2012 Diane M. Fremgen Clerk of Court of Appeals |
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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 Reilly, J.
¶1 PER CURIAM. In this medical malpractice case, Christina Zawatzke appeals a judgment entered for the Wisconsin Injured Patients and Families Compensation Fund after a jury found that Donald Harvey, M.D., was not negligent in his care and treatment of her.[1] Zawatzke challenges several of the trial court’s evidentiary decisions. We reject her arguments and affirm.
¶2 Dr. Harvey, an anesthesiologist specializing in pain
management, treated Zawatzke with epidural steroid injections in her lumbar
spine. Zawatzke reported immediate pain,
then leg numbness. She was transferred
from
Dr. Harvey’s clinic to St. Nicholas Hospital in
¶3 Zawatzke’s diagnosis is paraplegia secondary to a spinal cord infarction. She alleged that Dr. Harvey negligently injected the medication into an artery instead of the epidural space. Proper placement of the epidural needle therefore was critical to demonstrating liability. One of Zawatzke’s pretrial motions in limine sought to redact a portion of Dr. Lee’s consultation note stating that the epidural injection “went without any anatomic complications as the radiographic image demonstrated adequate contrast placement and adequate placement of the epidural needle.” The parties vigorously debated whether the note was the admissible communication of a treating physician or an expert opinion the defense was trying to “backdoor” in after Dr. Lee protected himself from cross-examination by asserting his Alt privilege.[2] The trial court denied the motion, the jury returned a verdict in Dr. Harvey’s favor, and the court denied Zawatzke’s motions after verdict seeking a new trial. This appeal followed.
¶4 Zawatzke contends that the trial court’s ruling on Dr. Lee’s consult note allowed critical opinion testimony that the needle placement was “adequate” but did not allow for cross-examination because, having asserted his Alt privilege, Dr. Lee could not be compelled to provide further opinion testimony. We disagree with Zawatzke’s characterization of Dr. Lee’s note and that it was error to admit it.
¶5 A trial court has broad discretion when making evidentiary
determinations, and our review is highly deferential. See Martindale
v. Ripp, 2001 WI 113, ¶¶28-29, 246
¶6 The court properly exercised its discretion. Neither party retained Dr. Lee as an expert
witness—that is, to render opinions on the standard of care and treatment
provided to the patient by another physician.
Rather, Dr. Lee gave deposition testimony that recounted his own
observations and actions during the course of his examination, care and
treatment of Zawatzke. See Glenn v. Plante, 2004 WI 24, ¶27,
269
¶7 Zawatzke argues, however, that “[a] medical record containing a diagnosis or opinion … may be excluded in the trial judge’s discretion if the entry requires explanation or a detailed statement of the judgmental factors upon which the diagnosis or opinion is based.” Pophal v. Siverhus, 168 Wis. 2d 533, 547, 484 N.W.2d 555 (Ct. App. 1992) (citation omitted). Accordingly, she contends, the consult note should have been excluded due to Dr. Lee’s admitted inability to explain the note because he could not recall, three years after the fact, whether he viewed the radiology films himself or based his needle-placement assessment on Dr. Harvey’s representations.
¶8 Pophal does not persuade us that the trial court erred. First, Pophal reiterates the well-known
standard: that evidentiary decisions are discretionary with the trial
court. Second, excluding the records in Pophal
was held to be proper because the treating physicians did not testify to
explain their entries.
¶9 Zawatzke next asserts that the trial court erred in failing
to bar
Dr. Lee’s statement that the epidural needle was “adequate[ly]” placed because
the statement lacked sufficient foundation—again, because Dr. Lee could not
remember if he actually reviewed the films. This issue is a nonstarter.
¶10 Dr.
¶11 There was a rational basis for the trial court’s decision—at several junctures—to permit Dr. Lee’s unredacted consultation note. Having so concluded, we need not consider Zawatzke’s argument that the trial court’s error was not harmless.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.