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Torts — medical malpractice — causation

Wisconsin Court of Appeals

Civil

Torts — medical malpractice — causation

Kim Westrich was allegedly injured when he fell while sedated following a colonoscopy procedure. Memorial Health Center, Inc., and Physicians Insurance Company of WI, Inc. (collectively, the Hospital) appeal, and Kim and Elizabeth Westrich cross-appeal, from a judgment awarding the Westriches damages on their negligence claims. We conclude a new trial is warranted based on the Hospital’s argument that the circuit court erroneously excluded evidence of an alternative cause for some of Kim Westrich’s injuries.

Although we ordinarily consider only dispositive issues, we also address two issues that are likely to arise on remand.

The first is a hearsay issue involving the Westriches’ attempted use of national patient fall statistics at trial. We conclude the court properly excluded the statistics, but used the wrong rationale. We further caution the parties and the court that, should the Westriches attempt to introduce the data on remand, they must find an expert with the requisite personal knowledge, offer the statistics for a purpose other than the truth of the matter asserted, or make use of an available exception to the hearsay rule.

The second issue, raised in the Westriches’ cross-appeal, is whether, as a matter of law, Kim Westrich can be found contributorily negligent. We conclude Westrich was properly included on the verdict form. This opinion will not be published.

2011AP2357 Westrich v. Memorial Health Center Inc., et al.

Dist III, Taylor County, Knox-Bauer, J., Per Curiam

Attorneys: For Appellant: Van Sicklen, Michael B., Madison; Nickels, Stephan J., Madison; Tsao, Naikang, Madison; Sterken, Krista J., Madison; For Respondent: Stombaugh, Christopher D., Platteville; Laufenberg, Michael L., Milwaukee


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