COURT OF APPEALS
DATED AND FILED
December 5, 2012
Diane M. Fremgen
Clerk of Court of Appeals
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.
IN COURT OF APPEALS
Estate of June Anderson, c/o The Personal Representative,
Lisa A. Large,
Anne K. Bartel, M.D.,
APPEALS from a judgment and an order of the circuit court for Ozaukee County: thomas r. wolfgram, Judge. Judgment affirmed; order reversed.
¶1 PER CURIAM. The Estate of June Anderson
alleged, and a jury agreed, that Anne Bartel, M.D., failed to obtain
¶3 Diagnostic tests revealed bilateral lung masses and a mass on
one of her adrenal glands, a common site of lung cancer metastasis, but failed
to confirm lung cancer.
¶4 Before undertaking the procedure, Dr. Bartel reviewed a
Dr. Bartel that Anderson was on no blood thinners, basing her response on her own review of Anderson’s chart and the telephone “handoff report” from the floor nurse. Dr. Bartel thus was unaware that Anderson was on Lovenox for ten days and an increased dosage for the past three. Dr. Bartel’s explanation to Anderson of the risks and benefits of the adrenal biopsy included the general risk of bleeding inherent in an invasive procedure but not the added risk Lovenox posed.
¶6 Anderson’s estate sued Dr. Bartel and the pulmonologist who
increased the Lovenox dosage, alleging a lack of informed consent. Competing motions for summary judgment
followed. The Estate sought a ruling
Dr. Bartel did not obtain
¶7 In the meantime, the trial court denied Dr. Bartel’s summary judgment motion and granted the Estate’s, but only as to the lack of informed consent. The court concluded that Dr. Bartel should have known that Anderson was on Lovenox because the information was readily available in Anderson’s medical records. Whether the failure to inform was causal would remain an issue for the jury. This court denied Dr. Bartel’s petition for leave to appeal that nonfinal order and the trial court denied Dr. Bartel’s two motions to reconsider its grant of partial summary judgment to the Estate.
¶8 The informed-consent claim against Dr. Bartel and the
negligence claims against her and the primary physician proceeded to
trial. Acquiescing to the Estate’s
persistent requests, the trial court answered this special verdict question in
the affirmative: “Did Dr. Bartel fail to
disclose information about the adrenal biopsy necessary for Ms. Anderson to
make an informed decision?” The jury
determined that a reasonable person in Anderson’s place provided with that
information would have declined the biopsy.
It also determined that Dr. Bartel was negligent in her care and
¶9 The court entered judgment against Dr. Bartel for $125,792.99—her her portion of the damages plus costs and interest. Dr. Bartel moved to stay execution of the judgment pending appeal and to pay the judgment amount into the court to stop the further accrual of post-judgment interest. The court granted the motion to stay execution of the judgment but denied the motion to pay the judgment amount to the clerk’s office. Dr. Bartel’s appeal from this order was consolidated with the appeal of the underlying judgment.
¶10 Dr. Bartel’s appeal largely centers on the informed-consent
claim. She argues that she cannot have
failed to provide information that she herself did not have. The jury here was given two related but
independent bases upon which to find liability: failure to obtain informed consent and
negligent care and treatment. It is
undisputed that Dr. Bartel did not inform Anderson of the added risk of
undergoing the biopsy while on a therapeutic dose of an anticoagulant. The question of whether a physician is
negligent for failing to disclose risks under
Wis. Stat. § 448.30(1) can be taken from the jury if the evidence compels that result as matter of law. Kuklinski v. Rodriguez, 203
¶11 We therefore approach the case from the aspect of negligence. The jury was instructed that the court’s answer to the informed-consent question was to have no bearing on the answer to any other verdict question. We presume the jury was following the trial court’s instructions when it answered that Dr. Bartel was negligent with regard to her care and treatment of Anderson. See Schwigel v. Kohlmann, 2002 WI App 121, ¶17, 254 Wis. 2d 830, 647 N.W.2d 362.
¶12 Our review of a jury’s verdict is narrow and we must sustain it if there is any credible evidence to support it. Kuklinski, 203 Wis. 2d at 331; see also Wis. Stat. § 805.14(1). The scope of our review is even narrower where, as here, the trial court upheld the verdict on postverdict motions. See Weber v. White, 2004 WI 63, ¶17, 272 Wis. 2d 121, 681 N.W.2d 137. We may not overturn the verdict absent such a complete failure of proof that the verdict must have been based on speculation. Kuklinski, 203 Wis. 2d at 331.
¶13 Credible evidence supports the jury’s finding of
Dr. Bartel testified that she reviewed portions of Anderson’s chart to determine whether the adrenal biopsy was indicated and anatomically feasible; that she did not review the medication records, in part because the bedside record was “not available” when she looked for it; and that she relied on the nursing staff, chiefly the IR nurse, to relay relevant information about Anderson’s history and medications. Dr. Bartel acknowledged that, despite the IR nurse’s report, the medication summary included multiple references to “enoxaparin,” the generic form of Lovenox. Anderson’s primary physician confirmed that “anybody reviewing the chart would have seen” at least four places in it indicating that Anderson was on Lovenox.
¶14 Dr. Richard Lewan, the Estate’s expert, confirmed that it is standard protocol for any doctor to ascertain a patient’s medications before performing a procedure and that he could not conceive of any scenario where a physician planning an invasive procedure would be relieved of the duty to personally consult the patient’s chart. Dr. Bartel’s expert, by contrast, deemed it reasonable, appropriate and within the standard of care for Dr. Bartel to rely on the IR nurse and other staff to convey accurate information to her. The weight and credibility to be given the opinions of expert witnesses was for the jury to determine. See Wis JI—Civil 260; see also State v. Pharm, 2000 WI App 167, ¶31, 238 Wis. 2d 97, 617 N.W.2d 163.
¶15 Dr. Bartel next contends that the trial court erred in denying
her motion to bar Dr. Lewan, a family care physician, from testifying as to the
standard of care of an interventional radiologist. Admission of an expert witness’s opinion
testimony is a matter of trial court discretion. Brain v. Mann, 129
Wis. 2d 447, 458, 385 N.W.2d 227 (Ct. App. 1986). To be sustained, a discretionary determination must be based upon facts of record as well as the appropriate and applicable law. Id.
¶16 The manner in which Dr. Bartel performed the biopsy or otherwise rendered care peculiar to her discipline was not at issue. Rather, Dr. Lewan testified about standards fundamental to the practice of any physician, namely, a personal and thorough record review to gather essential information about the patient’s medical history. Dr. Bartel’s challenge thus goes to the weight, not the admissibility, of Dr. Lewan’s testimony. Because Dr. Lewan was a qualified expert and his testimony was relevant, the court did not err by admitting it.
¶17 Dr. Bartel also contends that the trial court erred in denying
her motion to bar Dr. Lewan from opining about pain and suffering because the
opinion was not previously disclosed and it called for a level of expertise
Dr. Lewan did not possess. Even if the trial court erroneously allowed the testimony, a new trial is not warranted because the error would have been harmless. See Martindale v. Ripp, 2001 WI 113, ¶30, 246 Wis. 2d 67, 629 N.W.2d 698.
¶18 When Dr. Lewan testified, Anderson’s daughters, Laura Mueller and Lisa Large, already had testified about her post-biopsy condition. Mueller testified that Anderson was too weak to use the bathroom, could not get comfortable, kept “moaning and weeping,” and reported “excruciating” pain. Large testified that she could hear Anderson moaning down the hall. She found Anderson gripping the bedrail, curled into a fetal position, sweating profusely, and complaining of “bad” pain and pressure in her back and stomach. Anderson required morphine but even then remained restless. Large testified that over the next few days, her mother became “bloated everywhere,” her eyes “bulg[ed],” her stomach grew “very distended,” and the skin on her hands, fingers, toes, ears, lips and nose broke down and turned black. There is ample evidence of Anderson’s pain and suffering, apart from Dr. Lewan’s testimony.
¶19 Finally, Dr. Bartel asserts that the trial court misconstrued
Wis. Stat. § 815.05(8), which governs the payment of post-judgment interest. Section 815.05(8) provides that post-judgment interest will accrue at the stated rate “from the date of the entry of the judgment until it is paid.” Reading “until it is paid” to mean until the judgment is paid to the Estate, the trial court rejected
Dr. Bartel’s effort to stop the accrual of interest by paying the judgment amount into either the clerk’s office or an escrow account. On this point, we agree with Dr. Bartel.
¶20 Another district of this court held some time ago that post-judgment interest is tolled when a party pays the judgment in full to the clerk’s office. See Downey, Inc., 188 Wis. 2d at 449. The court observed that motivating the debtor to pay the judgment is one purpose of the statute and that, once the payor tenders the money into the court, he or she “has surrendered the funds and no longer has the use of the money.” Id. We do not wholly agree with the rationale of Downey because we believe that if someone is to benefit, it should be the injured party rather than the payor. Nonetheless, as we are one court, we are bound by decisions of other districts. See Mallon v. Campbell, 178 Wis. 2d 278, 289, 504 N.W.2d 357 (Ct. App. 1993); see also Wis. Stat. § 752.41(2) (providing that “[o]fficially published opinions of the court of appeals shall have statewide precedential effect”). Downey therefore controls.
By the Court.—Judgment affirmed; order reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
 All references to the Wisconsin Statutes are to the 2009-10 version unless noted.