As a healthcare professional, your expertise is extraordinarily valued by society. You have undergone rigorous education and training, providing you with the knowledge and skills that allow you to provide the care that our communities so critically need. That said, your knowledge may also be sought out by lawyers involved in medical malpractice actions. This can be an intimidating and anxiety-inducing situation, especially considering the sensitive and high-stakes nature that these cases often entail. It is important for healthcare providers to be aware of their rights when confronted with the request to provide expert testimony in a medical malpractice case.
The modern-day Alt Privilege finds its origins from the 1999 Wisconsin Supreme Court case of Dawn Alt v. Cline.[1] The controversy in this case stemmed from catastrophic injuries that an infant sustained during labor and cesarean section.[2] Following this, during the deposition of Dr. Acosta (a physician who only performed prenatal care to the Plaintiff/Mother of the infant), his attorney instructed him not to answer a question that the court phrased as “is a gush of blood occurring to a patient with a history of pregnancy an abnormal condition?”[3] This question presented two key issues for the court: (1) did the question require Dr. Acosta’s expert opinion; and (2) did Dr. Acosta have a legal privilege to refuse to answer the question?[4]
The court answered the first question in the affirmative, holding that answering it plainly required expert testimony as it was not within the knowledge of a medically untrained layperson, and required an opinion from Dr. Acosta that was based on his specialized knowledge as a physician.[5] Given that the question required Dr. Acosta’s expert testimony, the court next had to address whether Dr. Acosta had a privilege to refuse to answer the question. As a general rule under Wisconsin law, no one has the privilege to refuse to be a witness.[6] However, the court ruled that an exception to this rule exists for expert witnesses, ultimately explaining that “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.”[7] Accordingly, the Court noted that there was no compelling need for Dr. Acosta’s testimony, because while he may have been unique in his prenatal care to Plaintiff, he was no more and no less qualified than any other obstetrician expert to opine on the question presented. Therefore, he only had to provide testimony regarding his observations regarding his prenatal care of Plaintiff, and could not be compelled to answer the question that required expert testimony.[8] Ultimately, the Alt court essentially ruled that absent compelling circumstances, a physician such as Dr. Acosta cannot be compelled to offer testimony requiring an expert opinion, and only has a duty to testify as to personal observations regarding their care and treatment of a patient.
The Alt Privilege was later addressed again and further clarified by the Wisconsin Supreme Court in the case of Glenn v. Plante.[9] Pertinently, in this case, one of Plaintiffs’ treating providers who was not accused of medical malpractice had suggested that procedures performed by the defendant physician were not necessary.[10] That same doctor (Dr. Koh) was subsequently named by the plaintiffs as an expert witness in the case.[11] Dr. Koh later wrote a letter to the court, expressing concern with the care that the plaintiff had received, but simultaneously voicing his wish not to be an expert witness in the case.[12] After being ordered by the circuit court to provide expert testimony, the Wisconsin Supreme Court once again found itself addressing the question of whether the circumstances of a medical malpractice matter required a physician to provide expert testimony.
The court reiterated that “absent a showing of compelling circumstances, an expert cannot be required to give expert testimony where the inquiry asks for the expert’s existing opinions or would require further work.”[13] In addition to this, to demonstrate compelling circumstances, the court further clarified that the party seeking the expert’s testimony must present a plan for reasonable compensation for the expert, and the expert is only compelled to testify regarding their existing opinion and is not required to do additional preparation.[14] The court then explained that under the facts it was presented with, Dr. Koh could not be required to provide expert testimony.
While a treating provider can be compelled to testify regarding their observations relating to the care and treatment of their patient, they cannot be compelled to provide expert testimony regarding questions such as the standard of care or causation absent compelling circumstances.[15] In that case, there were no compelling circumstances rendering Dr. Koh’s expert testimony unique. Even though Dr. Koh was the only witness, the court refused to deem his testimony unique, as his testimony regarding liability and the standard of care was not unique because other gynecological experts could equally testify to their opinions on the same issues.[16] The key takeaway from this case is that the Wisconsin Supreme Court established the principle that a treating provider’s testimony is not uniquely distinct from other experts in their respective fields. Being a treating provider does not automatically create a compelling circumstance requiring you to testify beyond personal observations, such as offering an opinion regarding the standard of care applicable to the treatment of another healthcare professional.
In the final key decision in the Alt trilogy, the Wisconsin Supreme Court reaffirmed the decisions in Alt and Glenn in Carney-Hayes v. Northwest Wis. Home Care, Inc.[17] In short, the Court clarified the Alt privilege by breaking down the duties that apply to medical witnesses. First, a medical witness must testify about their own conduct, including observations and thought processes, treatment of a patient, why certain actions were undertaken, what institutional rules the medical witnesses believed applied to their conduct, and their training and education relevant to the case.[18] Absent compelling circumstances, a medical witness who is not willing to testify as an expert cannot be forced to give an opinion as to the standard of care applicable to another provider.[19] Second, however, a medical witness who is accused of medical malpractice and of having caused injury may be required to give an opinion regarding the standard of care governing their own conduct. However, a healthcare provider cannot be named as a party defendant in this case for the sole purpose of attempting to obtain that provider’s testimony.[20]
To illustrate, in Carney-Hayes, Kathy Avery, who was Carney-Hayes’ home nurse, was accused of medical negligence in failing to open her trachea before beginning CPR, which allegedly resulted in serious injury.[21] Because Avery was a medical witness accused of medical malpractice causing injury, she was required to testify regarding to her own conduct, observations, and thought processes relevant to the case, and could further be compelled to give an opinion regarding the standard of care pertaining to her own treatment provided.[22]
On the other hand, Carney-Hayes also involved an individual named Jodene Verbracken, who was a case manager for Carney-Hayes and was previously a caregiver for her.[23] Just like Dr. Acosta in Alt and Dr. Koh in Glenn. She provided care to the patient who was the subject of a malpractice matter, but she was not present during the alleged incident causing injury. Accordingly, while Verbracken was required to testify regarding her own conduct (such as her past care of the plaintiff), thought processes, and observations, she could not be forced to provide expert testimony absent compelling circumstances.[24]
So how does all of this apply to a healthcare provider in their daily practice? Imagine you get an email from a lawyer, asking you to fill out a questionnaire that asks for you to offer an opinion regarding the care another healthcare professional provided to your patient. You do not have to answer this correspondence. You would be just like Nurse Verbracken in Carney-Hayes, Dr. Koh in Glenn, and Dr. Acosta in Alt. Absent compelling circumstances (a standard determined by a court), you do not have to provide your expert testimony regarding the standard of care applicable to another healthcare provider. On the other hand, imagine a scenario in which you are unfortunately named as a defendant in a lawsuit, and are accused of medical malpractice that caused injury to a patient. In this situation, you would be in the shoes of Nurse Avery in Carney-Hayes and may be required to testify to not only your own observations and thought processes, but also to the standard of care applicable to your own conduct.
Being a healthcare professional is an inherently risky business; it is therefore imperative that you understand your rights, especially when asked to provide opinion testimony in a legal proceeding. Should you ever find yourself in a position where you are asked to offer opinions regarding care provided—whether it be your own or a colleague’s—you should not hesitate to contact experienced legal professionals, who can effectively guide you through that situation.
[1] Dawn Alt v. Cline, 224 Wis.2d 72 (1999).
[2] Id. at 79-80.
[3] See id. at 82-83
[4] See id at 82.
[5] Id. at 83-84
[6] See Wis. Stat. § 905.01. See also id. at 84-85.
[7] Id. at 89-90.
[8] See id. at 89-90.
[9] Glenn v. Plante, 2004 WI 24 (2004).
[10] Id. at ¶ 4.
[11] Id. at ¶ 6.
[12] Id. at ¶ 7
[13] Id. at ¶ 26.
[14] Id.
[15] See id. at ¶¶27-29
[16] See id. at ¶¶29-30.
[17] Carney-Hayes v. Northwest Wis. Home Care, Inc., 2005 WI 118 (2005)
[18] Id. at ¶ 5.
[19] Id.
[20] Id.
[21] Id. at ¶ 7-8.
[22] See id. at ¶ 47.
[23] Id. at ¶ 51.
[24] Id. at ¶¶ 51-53