Mary A. Hensley v. Froedtert South, Inc.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 9, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP588 Cir. Ct. No. 2021CV854

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

MARY A. HENSLEY AND SPRIGGIE N. HENSLEY, SR.,

PLAINTIFFS-APPELLANTS,

V.

FROEDTERT SOUTH, INC.,
FROEDTERT SOUTH, INC. - SOMERS CLINIC,
FROEDTERT SOUTH, INC. - KENOSHA HOSPITAL,
FROEDTERT SOUTH, INC. - PLEASANT PRAIRIE HOSPITAL,
MMIC INSURANCE, INC. AND NEIL SHEPLER, M.D.,

DEFENDANTS-RESPONDENTS,

REBEKAH COSTELLO, D.O.,

DEFENDANT.

APPEAL from an order of the circuit court for Kenosha County:
CHAD G. KERKMAN, Judge. Affirmed.
No. 2022AP588

Before Gundrum, P.J., Neubauer and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Mary A. Hensley and Spriggie N. Hensley, Sr., pro
se, appeal from an order granting summary judgment for Froedtert South, Inc. and
various Froedtert entities and doctors (collectively, “Froedtert”). The Hensleys
assert that the circuit court erred in dismissing their medical malpractice and
corporate negligence claims based on their failure to disclose an expert witness
and their failure to provide evidence supporting their allegation that Mary’s
medical records were falsified. We reject the Hensleys’ arguments and affirm.

BACKGROUND

¶2 On June 22, 2020, the Hensleys sought medical treatment for Mary
at Froedtert South – Somers Clinic (“Froedtert South”). According to the
complaint, Mary presented symptoms to a physician’s assistant, including lower
abdominal and back pain, bloating, nausea, diarrhea, vomiting, constipation, and
recurring fever. The physician’s assistant ordered x-rays that confirmed the
distended appearance of Mary’s abdomen, but she did not order other diagnostic
testing. The assistant and her supervising doctor treated Mary’s condition as a
mild digestive disorder and sent her home with instructions to “adhere to a ‘clear
liquid’ diet.” The Hensleys returned the next day because Mary’s pain had not
subsided. Mary was then seen by an advance practice nurse practitioner who was
supervised by the same doctor and who also diagnosed Mary with mild digestive
disorder and instructed her to adhere to a bland diet.

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¶3 On June 25, 2020, the Hensleys returned to Froedtert South for an
appointment with a primary care physician. Mary’s condition had continued to
deteriorate and she was in “severe distress.” The physician refused to provide
treatment because the Hensleys arrived six minutes late. Spriggie then took Mary
to the Kenosha Hospital Emergency Department, where an emergency room
physician observed acute pain, fever, disorientation, and physical distress and
ordered various diagnostic tests, which showed abnormal values. The ER
physician ordered an ultrasound of Mary’s abdomen and a CT scan, which
together showed that Mary was suffering from a “prominent inflammatory
reaction” likely due to appendicitis. The following day, Mary was transported by
“Flight for Life” to Pleasant Prairie Hospital where Dr. Mejal Jandali performed
an appendectomy on Mary.

¶4 The Hensleys filed suit on September 7, 2021. They asserted claims
for medical malpractice and corporate negligence based on allegations that Mary
suffered an injury as a result of Froedtert’s failure to “correctly diagnose”
appendicitis and to timely provide treatment. Their Amended Complaint added a
claim based on allegations that Froedtert “falsified and concealed” Mary’s health
care records related to her June 2020 visits. After several months of discovery, the
parties filed cross-motions for summary judgment. Following a hearing, the
circuit court ruled in favor of Froedtert and dismissed all three claims.

¶5 The circuit court dismissed the Hensleys’ medical malpractice claim
because they had failed to disclose any expert witnesses, remarking that “case law
does require that ... an expert testify as to what the standard of care is.” The court
rejected the Hensleys’ argument that their medical malpractice allegations fell
within the knowledge and understanding of a layperson and did not require expert
testimony. The court also rejected the Hensleys’ contention that they could call

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Jandali or any of the other treating physicians to provide expert testimony to
support the Hensleys’ claims, stating that “you cannot ask them their opinions [as
an expert] unless they consent to that and agree to that in a contract.” The court
concluded the same failure to disclose an expert witness doomed the Hensleys’
claim of corporate negligence, because that claim “comes out of … medical
negligence.” The court rejected the Hensleys’ argument that expert testimony was
unnecessary because Froedtert’s employees did not comply with its own policies
and procedures.

¶6 Finally, the circuit court confirmed with the Hensleys that their false
records claim was based solely on differences between two versions of a summary
they had received on June 23, 2020. The court determined that the Hensleys had
not presented evidence supporting their claim that Froedtert falsified Mary’s after-
visit summary from her June 23, 2020 visit to Froedtert South. The court also
concluded the Hensleys had failed to allege damages associated with this claim.
The Hensleys appeal, arguing that the circuit court erred in dismissing their
claims.

DISCUSSION

¶7 Appellate courts review a grant or denial of summary judgment de
novo using the same methodology as the circuit court. M&I First Nat’l Bank v.
Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App.
1995); WIS. STAT. § 802.08(2) (2021-22).1 This court must first examine the
complaint to determine whether it states a claim; we then must examine the

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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answer to determine whether it presents a material issue of law or fact. See
Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375 (Ct. App.
1998). If the pleadings are sufficient, our next step is to determine whether the
moving party’s affidavits and other proof make out a prima facie case for
summary judgment. See Swatek v. County of Dane, 192 Wis. 2d 47, 62, 531
N.W.2d 45 (1995). “If the moving party has made a prima facie case for summary
judgment,” the court then examines “the affidavits and other proof of the opposing
party” to decide whether there are disputed material facts. Id. The moving party
need only explain the basis for its motion for summary judgment and identify the
portions of “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,” that it believes show there is no
genuine issue of material fact; “the moving party need not support its motion with
affidavits that specifically negate the opponent’s claim.” Transportation Ins. Co.
v. Hunzinger Constr. Co., 179 Wis. 2d 281, 292, 507 N.W.2d 136 (Ct. App. 1993)
(citation omitted).

I. Medical Malpractice

¶8 To succeed on a claim of medical malpractice, a plaintiff must prove
a negligent act or omission that is below the standard of care and causes an injury.
See Paul v. Skemp, 2001 WI 42, ¶17, 242 Wis. 2d 507, 625 N.W.2d 860; J.W. v.
B.B., 2005 WI App 125, ¶9, 284 Wis. 2d 493, 700 N.W.2d 277. Generally, expert
testimony is necessary concerning matters involving special knowledge, skill, or
experience on subjects that are not within the realm of the jurors’ ordinary
experience and that require special learning, study, or experience. Cramer v.
Theda Clark Mem’l Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427 (1969). In Olfe
v. Gordon, 93 Wis. 2d 173, 180, 286 N.W.2d 573 (1980), our supreme court made
clear that the medical standard of care is one of these subjects: “[i]n medical

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malpractice actions, Wisconsin law generally requires the plaintiff to introduce
expert testimony as to the standard of care and the defendant’s departure from it.”
See also Burnett v. Alt, 224 Wis. 2d 72, 83-84, 589 N.W.2d 21 (1999). Without
testimony from an expert, a jury lacks a frame of reference to determine whether
the defendant failed to exercise the degree of care and skill of a reasonably prudent
doctor. See id.

¶9 Our supreme court discussed expert testimony in medical
malpractice cases extensively in Alt and held that an expert witness is required in
such cases because “a lay person, medically untrained and uneducated, is in no
position to answer [questions about what symptoms are normal in a given patient]
with anything other than a speculative guess.” 224 Wis. 2d at 84. However, the
court noted that WIS. STAT. § 907.06 explicitly recognizes an expert witness’s
right to refuse to provide expert testimony when appointed by the court. See Alt,
224 Wis. 2d at 86. This express statutory grant implies a privilege for an expert to
refuse to testify if called by a litigant; “[i]t makes little if any sense to conclude
that a litigant has greater rights than a court with respect to obtaining testimony
from experts.” Id.

¶10 The Hensleys argue that the standard of care governing their medical
malpractice claim falls within the knowledge and understanding of the average
layperson, and thus does not require expert testimony. To the extent expert
testimony is required, the Hensleys argue, they would have called Jandali (Mary’s
surgeon) and the named defendant doctors to provide expert testimony at trial in
support of their claim.

¶11 We reject each of the Hensleys’ contentions, beginning with their
assertion that no expert testimony is required in support of their medical

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negligence claim. The diagnosis of appendicitis is a question that does not lie
within the knowledge and experience of a layperson and appendicitis symptoms
are not a matter of common knowledge or experience such that a layperson would
have been able to recognize the malady upon presentation. Consistent with Alt,
we conclude that a diagnosis of appendicitis involves specialized knowledge and
any testimony regarding the standard of care applicable to that diagnosis must
come from an expert witness with sufficient knowledge and training. See Alt, 224
Wis. 2d at 83.

¶12 Moreover, an expert witness must have qualified knowledge about
the topic on which he or she will be testifying. The Hensleys have failed to
demonstrate that Jandali, a surgeon, is a qualified expert, under WIS. STAT.
§ 907.02, to testify on the standard of care for a physician assistant, emergency
room doctor, or a nurse practitioner—the occupations of Mary’s medical providers
on the dates the alleged negligence occurred. Testimony establishing the
applicable standard of care must come from an expert with a similar training and
knowledge of the defendant providers. See Carney-Hayes v. Northwest Wis.
Home Care, Inc., 2005 WI 118, ¶45, 284 Wis. 2d 56, 699 N.W.2d 524.

¶13 On that point, the Hensleys cannot compel any of the named
defendants to offer opinions on the standard of care. See Alt, 224 Wis. 2d at 90.
Absent exceptional circumstances, a medical witness who is unwilling to testify as
an expert—and the fact witnesses here apparently are unwilling—is not required
to give an opinion on the applicable standard of care. See id. at 89. If the
Hensleys were to call the named defendants, their testimony would be limited to
describing their own conduct in treating Mary. For these reasons, the circuit court
properly dismissed the Hensleys’ medical malpractice claim.

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II. Corporate Negligence

¶14 The Hensleys also argue the circuit court erred by dismissing their
corporate negligence claim. The Hensleys assert that Froedtert “not only held
itself out as a licensed health care facility[,] but gave its specific assurance
[through its webpage] that any patient presenting to its Immediate Care Services
with severe illness or injury would be directed to the ‘Emergency Department.’”
According to the Hensleys, this statement on Froedtert’s webpage “is essentially a
‘corporate referral policy’ which imposes a duty upon [Froedtert] to implement
measures sufficient to ensure [the policy] is carried out by [Froedtert’s]
employees.” They further argue Froedtert failed to comply with those policies and
procedures.

¶15 The Hensleys fail to appreciate that the standard of care against
which alleged negligence must be measured cannot be fixed by a defendant’s
adoption of private rules. See Marolla v. American Fam. Mut. Ins. Co., 38
Wis. 2d. 539, 543-44, 157 N.W.2d 674 (1968). “Such rules may require more, or
they may require less, than the law requires; and whether a certain course of
conduct is negligent, or the exercise of reasonable care, must be determined by the
standard fixed by law, without regard to any private rules of the party.” Id.
(citation omitted). In other words, the standard of care is determined by what a
reasonable hospital would do in the same or similar circumstances, not by the
hospital’s policies. See Johnson v. Misericordia Cmty. Hosp., 99 Wis. 2d 708,
739-40, 301 N.W.2d 156 (1981).

¶16 The question of what a reasonable hospital would do under similar
circumstances again implicates the need for expert testimony. Id. The
reasonableness of Froedtert’s protocols and/or conduct in determining whether

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Mary needed to be referred to the Emergency Department does not fall within the
knowledge of a layperson. Consistent with the foregoing discussion, the Hensleys
were required to name a witness to establish the standard of care applicable to a
reasonable hospital.

¶17 Further, as pointed out in Miller v. Wal-Mart Stores, Inc., 219
Wis. 2d 250, 261-62, 580 N.W.2d 233 (1998), a claim of corporate negligence
must be supported by evidence establishing a causal nexus between the corporate
conduct and the underlying act of an employee or agent that caused injury. Here,
the Hensleys needed an expert witness to support their underlying negligence
claims against the hospital or its providers and to show a nexus between Mary’s
injuries and Froedtert’s policy. But, as with their medical malpractice claim, the
Hensleys failed to show that they were prepared to call an expert witness in order
to prove this causation. For these reasons, the circuit court properly dismissed the
Hensleys’ corporate negligence claim.

III. “Falsification” and “Concealment” of “Patient Health Care Records”

¶18 Finally, the Hensleys argue that the circuit court erred in dismissing
their claim for “falsification” of Mary’s health care records. Specifically, they
contend that Mary’s after-visit summary document (“AVS”) was altered to omit
critical information concerning the severity of Mary’s true condition. The
Hensleys’ sole basis for this allegation is that the AVS they received following the
June 23, 2020 visit did not include the following language that appeared in the
final version generated a few minutes later on the same day:

Regarding your abdominal discomfort, though an extensive
workup does not seem warranted at this time, remember
that the Immediate Care clinic is limited and serious causes
have not been ruled out for you today. Therefore if your
pain worsens in any way or you develop other symptoms

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including but not limited to fever, vomiting, chest pain, low
back pain, or blood in the stool, you are to go to the ER for
further evaluation immediately.

¶19 The Hensleys assert that this “falsification” violates WIS. STAT.

§ 146.83(4), which states that “[n]o person” may:

(a) Intentionally falsify a patient health care record.

(b) Conceal or withhold a patient health care record with
intent to prevent or obstruct an investigation or prosecution
or with intent to prevent its release to the patient, to his or
her guardian, to his or her health care provider with a
statement of informed consent, or under the conditions
specified in s. 146.82(2), or to a person with a statement of
informed consent.

(c) Intentionally destroy or damage records in order to
prevent or obstruct an investigation or prosecution.

¶20 Froedtert asserts that the AVS is automatically generated by
Froedtert’s electronic medical records system and that it is excluded from the
statutory definition of “patient health care records.” Setting aside the latter
question, we note that the record clearly shows that on June 23, 2020, the AVS
was generated as part of an “in process” document with the preliminary version
generated automatically at 3:43 p.m., and the final version generated at 3:46 p.m.

¶21 The Hensleys have failed to provide evidence of any intentional
“falsification” under the statute. Additionally, both AVS documents were entered
into the circuit court record by the Hensleys, and they have provided no evidence
of Froedtert “withholding” or “concealing” either document. For at least these
reasons, the circuit court properly dismissed the Hensleys’ claim based on
“falsification” of patient heath care records.

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¶22 For the foregoing reasons, we affirm the circuit court’s order
granting summary judgment.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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