John and Robin Enea v. Bruce Jacobson

Legal malpractice claim by clients who hired defedant to prosecute a medical malpractice claim on behalf of their 7-year-old son Ryan against St. Mary's Hospital in Milwaukee. They claimed that as a result of various acts, errors and/or omissions on the part of Bruce Jacobson, resulted in thier son loosing his ability to effectively prosecute his legal malpractice claim against the hospital where he was born.

Mrs. Enea has a rare medical condition called didelphys uterus, or double uterus. Pregnant women with didelphys uterus have a high risk of premature labor and an abnormal presentation.

When Mrs. Enea was pregnant with Ryan, her membranes ruptured prematurely at thirty-three weeks. Mrs. Enea called her obstetrician, James G. Linn, M.D. The switchboard operator at St. Mary's Hospital told Mrs. Enea that Dr. Linn was not available but that the operator would page him. When Mrs.Enea did not hear from Dr. Linn, she went to Saint Mary's Hospital.

Dr. Linn alleges that he was not present for labor and delivery because a resident called him at home and told him that "Mrs. Enea was not in labor, that she was uncomfortable[,] and that the fetal heart rate was normal." Dr.Linn contends that he told the resident that he was unavailable, that he would call back in "a couple of hours," and that "if there was any problem the resident" should call the on-call physician.

In the delivery room, Nancy Grant, M.D., a third-year resident, evaluated Mrs. Enea's condition. Dr. Grant decided to perform an emergency cesarean section, but changed her mind when an examination revealed that Mrs.Enea was fully dilated. Ryan was born shortly thereafter.

Ryan was not breathing when he was born. The attending personnel administered CPR to resuscitate Ryan. According to the hospital records, resuscitation was "very prolonged" and included bagging with a mask and oxygen, chest compressions, intubation, epinephrine, sodium bicarbonate, and albumin administered through an umbilical vein catheter. Additionally, a neonatologist estimated that Ryan lost "at least" one-third of his blood volume. Ryan has serious brain damage.

The Eneas filed a medical malpractice suit, alleging that Dr. Linn and Saint Mary's Hospital were negligent in caring for and treating Mrs. Enea and Ryan. Specifically, the Eneas claimed that the defendants were negligent because they failed to perform a cesarean section and that if they had performed a cesarean section, sufficient blood-enriched oxygen would have reached Ryan's brain.

The defendants subsequently filed a motion to dismiss on the ground that the Eneas violated the trial court's scheduling order. The trial court found that the Eneas' first attorney had committed an "egregious" violation when he failed to name witnesses, itemize damages, and provide a special permanency report. As a sanction, the trial court limited the Eneas to one expert witness, William L. Semler, M.D., an obstetrician/gynecologist, on the issue of causation.

The defendants deposed Dr. Semler. Dr. Semler testified that Ryan was injured because: "[t]he baby's blood was squeezed out into the placenta because of the tetanic-like contractions. So the baby was born without much blood in its system; therefore, it did not feed its brain." Dr. Semler also opined that the "tetanic-like contractions ... could have been prevented with anesthesia and the baby delivered by C-section." Dr. Semler testified that he formed this opinion after reviewing the report of Stephen Ragatz, M.D., a neonatologist. Dr.Semler admitted that a neonatologist or a neurologist diagnoses neurological injuries; therefore, Dr. Semler could not, to a reasonable degree of medical certainty, determine the timing of when Ryan suffered significant brain injury because, as he explained, "I'm not a neonatologist or a neuropathologist, so I wouldn't know what they've come up with as far as the timing."

The defendants sought summary judgment based on Dr. Semler's testimony. They claimed that the Eneas could not prove the elements of a medical malpractice claim because Dr. Semler was not qualified to testify why Ryan was injured. The trial court granted summary judgment, concluding that the Eneas could not establish the element of causation because "we need some expert testimony about" neurological injuries and "the record is clear to me that obstetricians do not diagnose or treat neurological injuries."

A witness qualifies as an expert "by knowledge, skill, experience, training, or education." Wis. Stat. Rule 907.02.3 Whether a witness is qualified to render an expert opinion is within the trial court's discretion. State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403, 412 (1999). We will affirm a discretionary determination if it appears from the record that the trial court: (1)examined the relevant facts; (2) applied a proper standard of law; and (3)using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-415, 320 N.W.2d 175, 184 (1982).

Here, the trial court erroneously confused the issue of the diagnosis of Ryan's neurological injuries with the issue of the cause of those injuries. Thus, for the reasons set forth below, we agree that although Dr. Semler was not qualified to diagnose Ryan's neurological injuries, Dr. Semler was qualified to testify about the cause of what the neonatologist identified as Ryan's neurological damage.

First, expert testimony was not necessary to establish the simple fact that Ryan was injured. A detailed ultrasound of Ryan at seventeen weeks was "normal." Ryan now has severe brain damage-Ryan's mother testified at her deposition that Ryan: (1) does not have a suck, gag, or swallow reflex and, that as a result, he will need to be fed by tube for the rest of his life; (2)cannot hold himself up well; and (3) suffers from respiratory problems and requires oxygen support "most of the time." It is thus readily apparent to even the most medically inexperienced juror that Ryan is severely injured. Accordingly, expert testimony is not required to prove that Ryan is damaged. See State v. Whitaker, 167Wis. 2d 247, 255, 481 N.W.2d 649, 652 (Ct. App. 1992) (expert testimony is required only if the issue to be decided is beyond the general knowledge and experience of the average juror).

Second, it was proper for Dr. Semler to rely on the reports of other medical experts to form an opinion on the cause of Ryan's neurological injuries. "The standard in this state for the admission of expert testimony is not stringent." Martindale v. Ripp, 2001 WI 113, 68, 246 Wis. 2d 67, 629 N.W.2d 698. An expert witness, who is sufficiently qualified under Wis. Stat. Rule 907.02, may rely on evidence that is not admissible "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." See Wis.Stat. Rule 907.03.4 Specifically, medical experts may rely on the reports and medical records of others in forming opinions that are within the scope of their own expertise. See State v. Cadden, 56 Wis. 2d 320, 326, 201 N.W.2d 773, 775 (1972) ("[S]ince in their daily practice physicians normally rely on the facts and opinions of other experts, courtroom testimony, when based on the medical observations and findings of others, is sufficiently reliable to permit medical conclusions.").

According to Dr. Semler's deposition testimony, the report of Dr.Ragatz, a neonatologist, indicated that "[the tetanic-like contractions are] the etiology for the fact that the patient did have an exchange transfusion, where the blood is squeezed out of the baby back into the blood vessels of the placenta." This report was inadmissible, however, because the trial court excluded it as a sanction. But, as we have seen, Dr. Semler can rely on Dr.Ragatz's report in forming his, Dr. Semler's, opinion as to the cause of Ryan's injuries, as those injuries were diagnosed by Dr. Ragatz, because the precise nature of those injuries was not material-Ryan was profoundly injured as any lay person could see.

Dr. Semler considered Dr. Ragatz's report and testified that damage occurred to Ryan in utero: "The baby's blood was squeezed out into the placenta because of the tetanic-like contractions. So the baby was born without much blood in its system; therefore, it did not feed its brain." Dr.Semler also testified that although he could not, based on his own expertise, testify about the exact nature and extent of Ryan's injury, he could determine to a reasonable degree of medical certainty that Ryan's injuries were caused by the failure to perform a cesarean section: "[Ryan] suffered in utero because of the tetanic-like contractions, which could have been prevented with anesthesia and the baby delivered by C-section." This testimony was proper. Thus, the trial court erred when it granted summary judgment. Accordingly, we reverse and remand for further proceedings.

While obtaining a reversal of the summary judgment, the Plaintiffs will be limited to one expert witness at the time of trial, which is a major disadvantage. News articles indicated that the defendants plan to call 8 expert witnesses.

Settled for $990,000.00.

Unavailable

Unavailable

Note: It is unusual for a legal malpractice claim to be settled before the plaintiff actually loses on his or her case in chief.

Reported by Kent Morlan