Doctor can be forced to testify as expert

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“Understanding that the ‘particularly harsh sanction’ of dismissal would inevitably follow from acceding to Dr. Koh’s wishes, Judge White reasonably exercised discretion in ordering his testimony and denying Dr. Plante’s motion to dismiss.” Judge Charles B. Schudson Wisconsin Court of Appeals

Where refusing to compel a doctor to testify as an expert would result in dismissal of the plaintiff’s case, “compelling circumstances” exist that warrant requiring the doctor to do so, a sharply divided Wisconsin Court of Appeals held on April 15.

According to the allegations in the complaint, in 1995, while performing surgery on Sinora Glenn, Dr. Michael T. Plante also removed her right ovary without her knowledge, prior disclosure, or consent. Later, Dr. Plante also performed a hysterectomy.

Following her treatment by Dr. Plante, Glenn was treated by Dr. Charles H. Koh, who concluded that her treatment by Dr. Plante was inappropriate.

In 1999, Glenn filed suit, and over the course of the next several years, the case was transferred between six judges and was complicated by a bankruptcy proceeding.

During a scheduling conference in 1999, Glenn was required to name expert witnesses by Sept. 23, 1999. She ultimately did on Jan. 21, 2000, naming Dr. Koh and two other doctors, both of whom were subsequently withdrawn by Glenn.

In a letter to the court dated Feb. 24, 2000, Dr. Koh opined that various aspects of Dr. Plante’s treatment of Ms. Glenn were inappropriate. In the same letter, however, Dr. Koh also advised that he was reluctant to testify. He explained that “most doctors do not wish to play a leading role in any malpractice case against another local physician.”

In a subsequent letter to Glenn’s counsel, Dr. Koh iterated that he would not be an expert witness. On Feb. 7, 2002, Glenn finally moved to amend the scheduling order to extend the time to name expert witnesses. A week later, Dr. Plante responded by moving to dismiss.

As justification for failing to timely name expert witnesses, Glenn maintained, “The … error [was] in failing to recognize that despite all of the changes of judges and the many, many notices received, the original scheduling conference … had never been altered and the deadline for the filing of the Plaintiffs’ Witness List, including experts, had passed.”

Milwaukee County Circuit Court Judge Maxine A. White denied the motion to amend, concluding that, despite confusion from the protracted case history, counsel for Glenn did not have a justifiable excuse for missing the deadline.

However, the court concluded that Dr. Koh could be compelled to testify pursuant the “compelling circumstances” exception to the privilege not to testify as an expert set forth in Burnett v. Alt, 224 Wis.2d 72, 589 N.W.2d 21 (1999), and therefore denied Dr. Plante’s motion to dismiss.

The court of appeals granted Dr. Plante’s petition for leave to appeal a non-final order, but Glenn did not appeal the denial of the motion for an extension to file an expert witness list.

The court of appeals affirmed in a decision written by Judge Charles B. Schudson and joined by Judge Ted E. Wedemeyer. Judge Patricia S. Curley dissented.

Compelling Circumstances

Noting that a plaintiff must supply an expert witness to testify as to causation and standard of care in medical malpractice actions, the court found, “Without Dr. Koh, the Glenns would be left without testimony from a crucial, treating physician and without testimony from any expert on standard of care and causation.”

The court acknowledged the Supreme Court holding in Alt that an expert witness has a “broad qualified privilege” not to testify and, “absent a showing of compelling circumstances, an expert cannot be compelled to give expert testimony whether the inquiry asks for the expert’s existing opinions or would require further work.” Alt, 224 Wis.2d at 89.

The court further acknowledged, and called “reasonable,” Dr. Plante’s argument that, just as in Alt, “Dr. Koh’s subsequent treatment of Ms. Glenn makes him no more and no less qualified than any other gynecologist to give an expert opinion about standard of care and causation regarding treatment by a different physician.”

In addition, but for Glenn’s counsel’s failure to comply with the scheduling order, Ms. Glenn could have located other experts who could have testified instead of Dr. Koh.

Nevertheless, the court rejected Dr. Plante’s argument that the “showing of compelling circumstances” required by Alt cannot be satisfied “when the plaintiffs’ failure to comply with a scheduling order created those very circumstances.”

Harsh Sanction

The court concluded that the trial court acted within its discretion in concluding that compelling circumstances required Dr. Koh’s testimony.

Noting that dismissal is a drastic remedy and a “particularly harsh sanction” generally reserved for situations involving “bad faith or egregious conduct,” the court reasoned, “In a lengthy, written decision, Judge White carefully analyzed the applicable statutes and case law. She examined the specific circumstances of this case and recognized that ‘compelling circumstances’ required Dr. Koh’s testimony. Understanding that the ‘particularly harsh sanction’ of dismissal would inevitably follow from acceding to Dr. Koh’s wishes, Judge White reasonably exercised discretion in ordering his testimony and denying Dr. Plante’s motion to dismiss.”

The court further noted that, even if Dr. Koh were not compelled to testify, he likely would still have to testify regarding Dr. Plante’s treatment of Ms. Glenn in a legal malpractice action. Accordingly, the court affirmed.

The Dissent

Judge Curley dissented, stating, “Here, the ‘compelling circumstances’ consist of Glenn’s attorney’s complete disregard of the scheduling order’s requirement to name expert witnesses by a date certain and the trial court’s refusal to amend the order to permit more time for the naming of witnesses. Thus, Dr. Koh’s privilege to refuse to testify has been snatched away by the negligence of the very attorney seeking the doctor’s expertise. The effect of the majority’s decision is that other attorneys, either unable or unwilling to timely find expert witnesses to back their allegations, and faced with scheduling order deadlines, will simply be able to dragoon treating doctors into the role of their expert witness by crying ‘compelling circumstances.’ By doing so, the majority’s decision has turned Alt on its head.”

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The dissent discussed the decision in Alt in detail, and noted the similarity of the cases: the expert was a treating physician who did not wish to testify as an expert, although he must testify as to his observations as a physician; and the physician was not unique as an expert, but any number of people within the same field could have filled that role.

The dissent also expressed consternation with the maj
ority’s conclusion that the only two alternatives are forcing Dr. Koh to testify, or dismissing the case, stating, “But this conclusion ignores the fact that the trial court could have easily permitted the attorneys more time to name experts and left Dr. Koh’s right not to testify intact.”

Furthermore, the dissent blasted the majority opinion for applying “an outcome determinative test,” and looking only at the outcome of not ordering Dr. Koh to testify — dismissal.

Curley wrote, “This is not the test. While the outcome may be a factor, the main focus must be whether the circumstances leading to the absence of expert testimony is compelling — not whether the result of the absence is compelling, because the result may often be dismissal, a result for which the Glenns still have a remedy.”

Click here for Case Analysis.

David Ziemer can be reached by email.