In the shadow of Alt

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“[T]here effectively is going to be no separate award for pain and suffering damages between the time that the injury occurred and the time of the death, regardless of how prolonged that period might be” Lynn Laufenberg Laufenberg & Hoefle S.C.

The shadow of Burnett v. Alt is hampering the prosecution of medical malpractice and even personal injury cases as physicians invoke the privilege that takes its name from the case, according to a prominent practitioner.

Lynn R. Laufenberg said during his annual tort update at the Wisconsin Academy of Trial Lawyer conference in Egg Harbor last weekend that at some clinics, doctors have been advised by their legal staff that they don’t have to do anything in response to an attorney’s letter requesting a permanency report, or testimony or opinion about future care needs, saying that under Alt they have a privilege not to express those opinions.

“And they won’t talk to you and you cannot compel them, under the Alt standard, to give an opinion that they haven’t already arrived at,” Laufenberg said. “It’s a real problem that we need to deal with on some level. The Supreme Court has not addressed that practical implication of the Alt decision.”

In Burnett vs. Alt, 224 Wis. 2d 72 (1999), the Wisconsin Supreme Court held that a non-party treating physician had a qualified privilege to refuse to answer a deposition question that called for his expert opinion and that the plaintiffs did not show a compelling need for the testimony in order to overcome the privilege.

In March, the Supreme Court reaffirmed the Alt rule in Glenn v. Plante, 2004 WI 24. The trial court ruled in Glenn that compelling circumstances justified ordering a non-party treating physician to provide expert testimony for the plaintiffs, and the Court of Appeals affirmed that order. The Supreme Court held that the trial court had “misapplied” the Alt standard, and that the doctor should not have been ordered to provide expert testimony since the record did not clearly reflect the question or questions he was to be asked and the doctor had not been given the opportunity to formally invoke a privilege not to testify.

The Court recognized that, due to the case’s procedural history, if the doctor “does not testify and the circuit court declines to permit the naming of additional expert witnesses, the Glenns’ case may ultimately be dismissed,” but instructed that a compelling circumstances determination “must focus on whether there is unique or irreplaceable opinion testimony sought from an expert, not on procedural aspects of the case.”

At the outset of the opinion, the Court observed that Alt “does not apply to observations made by a person’s treating physician regarding the care and treatment provided to the patient, but rather applies to expert testimony from such a physician as to the standard of care and treatment provided by another physician.”

Plaintiffs’ attorneys in medical malpractice cases are seeing objections made to questions that are designed to determine the standard of care, even when the questions are directed to physicians and medical providers who are parties to a suit, Laufenberg said.

“They’re being instructed not to answer those questions on the basis of Alt,” Laufenberg said, because “supposedly they have a privilege not to express opinions as to what the standard of care is to which they or a co-defendant was required to comply.”

“It’s a bizarre circumstance,” he added.

If the assertion of objections under those circumstances is sustained, Laufenberg said, “a plaintiff in a med mal case is no longer able to establish the standard of care through admissions, nor is the plaintiff in a malpractice case able to impeach testimony of a defense expert by asking those standard of care questions of the defendant.”

Those who practice in the area of medical malpractice are also reeling from the impact of the Supreme Court’s decision this month in Maurin v. Hall, 2004 WI 100.

In the case, the Court held, in an opinion written by Justice David T. Prosser, that there is a single cap on noneconomic damages recoverable from health care providers for medical malpractice when a patient dies — the cap contained in Wisconsin Statutes Section 895.04(4). Where a patient survives, the cap is contained in Wisconsin Statutes Section 893.55(4)(d).

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The majority’s application of the damage caps was strongly criticized in two of the concurrences, with Chief Justice Shirley S. Abrahamson and Justice N. Patrick Crooks deeming the interpretation unconstitutional in their concurrence.

Laufenberg called it a “very, very strange decision.”

“So where we are with the medical malpractice area, when the injury results in death, is that there effectively is going to be no separate award for pain and suffering damages between the time that the injury occurred and the time of the death, regardless of
how prolonged that period might be,” he said.

Access to the courts is in real danger in the area of medical malpractice litigation, Laufenberg said.

“A combination of the legislative lobbying that’s been done by the medical society and the insurance industry, together with what appears to be a very unfavorable mix on the Supreme Court right now, means that the avenues of relief for those who have been injured by medical negligence are being narrowed about as far as they can in this state,” he said.