Michael J. Suhs v. Proassurance Casualty Company

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.
June 23, 2020
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP1062 Cir. Ct. No. 2015CV1636

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

MICHAEL J. SUHS AND MEGAN SUHS, A MINOR, BY HER GUARDIAN
AD LITEM, J. MICHAEL END,

PLAINTIFFS-APPELLANTS,

V.

PROASSURANCE CASUALTY COMPANY, MARK A. GARDON, M.D.,
BAYCARE CLINIC, LLP - NEUROLOGICAL SURGEONS AND INJURED
PATIENTS AND FAMILIES COMPENSATION FUND,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Brown County:
KENDALL M. KELLEY, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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).
No. 2019AP1062

¶1 PER CURIAM. Michael Suhs and his minor daughter, Megan Suhs,
(collectively, “Suhs”) appeal an order dismissing their medical negligence and loss
of society and companionship claims against Mark A. Gardon, M.D., Proassurance
Casualty Company, Baycare Clinic, LLP - Neurological Surgeons, and the Injured
Patients and Families Compensation Fund (collectively, “Gardon”). Following the
close of Suhs’ evidence at a jury trial, the circuit court granted Gardon’s motion to
dismiss under WIS. STAT. § 805.14(3) (2017-18),1 concluding Suhs had failed to
present sufficient evidence to prevail on his medical negligence claim. We conclude
the court properly granted Gardon’s motion to dismiss because Suhs failed to
present sufficient evidence to allow the jury to determine what, if any, damages
Suhs sustained as a result of Gardon’s alleged negligence. We therefore affirm the
order dismissing Suhs’ claims.2

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
It is undisputed that, if the circuit court properly dismissed Suhs’ medical negligence
claim, it also properly dismissed his daughter’s loss of society and companionship claim, which
was derivative of the medical negligence claim. As a result, we do not separately address the loss
of society and companionship claim in this opinion.

In addition to arguing that the circuit court erred by granting Gardon’s motion to dismiss,
Suhs argues that the court erred by precluding him from introducing certain medical bills without
expert testimony. Suhs concedes, however, that we need not address that issue unless we reverse
the court’s decision on Gardon’s motion to dismiss.

Suhs also argues that the circuit court erred by preventing him from introducing evidence
that Gardon ordered a consult for an epidural steroid injection. In response, Gardon asserts that
issue is moot if we affirm the court’s decision to dismiss Suhs’ claims. Suhs does not respond to
Gardon’s mootness argument in his reply brief, and we therefore deem the point conceded. See
Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct.
App. 1979).

Finally, Gardon argues he was also entitled to dismissal of Suhs’ claims on other,
independent grounds—namely, the “respectable minority of physicians doctrine.” Because we
conclude the circuit court properly dismissed Suhs’ claims based on Suhs’ failure to present
sufficient evidence regarding causation and damages, we need not address Gardon’s argument
regarding the “respectable minority of physicians doctrine.”

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No. 2019AP1062

BACKGROUND

¶2 On January 5, 2013, Suhs presented at the Bay Area Medical Center
complaining of severe low back pain. An emergency department physician
prescribed medication and sent Suhs home. As of January 6, Suhs still had low back
pain but felt “all right.” At about 1:00 a.m. on January 7, however, Suhs was
experiencing increased pain, and when he stood up from his kitchen table, his legs
gave out. He subsequently noticed that he had urinated on himself. He then called
his girlfriend, who drove him back to the emergency department at the Bay Area
Medical Center.

¶3 Suhs arrived at the emergency department at 1:42 a.m. on January 7,
suffering from weakness, numbness in his lower extremities, reduced reflexes,
urinary retention with dribbling, and sensory loss in his “saddle” area (i.e., his
buttocks and groin). An emergency department physician determined Suhs’
symptoms were consistent with a diagnosis of cauda equina syndrome. At trial,
Suhs’ neurosurgery expert, Dr. Frederick Brown, explained that cauda equina
syndrome “is a clinical syndrome associated with pressure or choking of the cauda
equina,” which is a group of nerves “coming off the spinal cord” that “supply lower
extremity strength, legs, ankles, bowel, bladder, [and] sexual function.” Brown
further testified that the symptoms of cauda equina syndrome include “sciatic-like
pain, loss of bladder function, bowel function, sexual function, lower extremity
weakness, [and] lower extremity numbness.”

¶4 Following his diagnosis, Suhs was transferred to the Aurora BayCare
Medical Center in Green Bay. Once there, an emergency department physician
ordered an MRI, which showed that a synovial cyst was compressing Suhs’ cauda
equina at the L4-L5 level. Following the MRI, Suhs was referred to Gardon, a

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neurosurgeon who had performed a spinal fusion surgery on Suhs at the L5-S1 level
in 2004. Gardon reviewed Suhs’ MRI and saw Suhs shortly after noon on January 7.
He recognized that Suhs was suffering from cauda equina syndrome.

¶5 The treatment for cauda equina syndrome is surgical decompression.
After reviewing Suhs’ MRI on January 7, Gardon decided to consult Suhs’ chart
from the 2004 fusion surgery to confirm the type of screws and rods that were used
in that procedure so that he could have the necessary tools available to remove or
add to that instrumentation, if necessary, during Suhs’ decompression surgery. The
chart from the 2004 procedure was not available electronically, so Gardon had to
request it from an off-site storage facility.

¶6 After seeing Suhs, Gardon consulted a book authored by
neurosurgeon Mark Greenberg to determine the appropriate time frame for
performing the decompression surgery. Evidence at trial showed that Greenberg’s
book states, in relevant part:

Timing of diskectomy in cauda equina syndrome [is]
controversial and the point of contention in numerous
lawsuits. In spite of early reports emphasizing rapid
decompression, other reports found no correlation between
the time to surgery after presentation and return of function.
Some evidence supports the goal of performing surgery
within 48 hours, although performing surgery within 24
hours is desirable if possible. There is no statistically
significant proof that delaying up to 48 hours is detrimental.

Based on Greenberg’s book, Gardon determined Suhs’ decompression surgery
should be performed within forty-eight hours of the onset of Suhs’ symptoms—in
other words, within forty-eight hours of 1:00 a.m. on January 7. At 1:45 p.m. on
January 7, Gardon scheduled Suhs’ surgery for 7:30 the following morning—which
was approximately 30.5 hours after the onset of his symptoms.

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¶7 Gardon performed Suhs’ decompression surgery as scheduled on
January 8. On January 11, Suhs was transferred to the rehabilitation portion of
Aurora BayCare, where he remained for approximately eighteen days. Following
his discharge, Suhs continued his rehabilitation on an outpatient basis. Suhs’
bladder function and sexual function ultimately improved to some degree, and he is
able to walk, albeit with some deficit in his right lower extremity. Suhs’ condition
did not improve completely, however, and he continues to have problems with
mobility, bowel and bladder function, pain, numbness, sleep, anxiety, and sexual
function.

¶8 Suhs filed the instant medical malpractice lawsuit against Gardon in
November 2015. The case proceeded to a trial, during which Brown (Suhs’
neurosurgery expert) testified that the standard of care required Gardon to perform
Suhs’ decompression surgery “as soon as feasible” and “as quickly as possible.”
More specifically, Brown testified that the standard of care required Gardon to
perform the surgery on January 7, 2013, and that Gardon breached the standard of
care by failing to do so. Brown acknowledged, however, that he could not identify
a specific time by which Gardon should have operated to prevent Suhs from
suffering any permanent neurological deficits.

¶9 Brown also admitted during his testimony that cauda equina syndrome
patients, like Suhs, who are already experiencing saddle anesthesia at the time of
presentation tend to have permanent deficits. In addition, he conceded that he had
operated on twenty to thirty cauda equina syndrome patients during his career, all
within twenty-four hours of the onset of symptoms, and some of those patients had
nevertheless suffered permanent deficits, such as bowel and bladder problems and
foot drop.

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No. 2019AP1062

¶10 Brown further acknowledged that Suhs’ condition had improved to
some degree following the decompression surgery. He opined, however, that Suhs
would have had a “better outcome” if Gardon had operated on January 7, rather than
on January 8. When asked to specify what that “better outcome” would have been,
Brown testified Suhs “would be more likely than not to have better bowel, bladder,
sexual, and lower extremity motor function, as well as less numbness and
neuropathic pain.”

¶11 Gardon filed a motion to dismiss at the close of Suhs’ evidence under
WIS. STAT. § 805.14(3), arguing Suhs had not presented sufficient evidence to
prevail on his medical negligence claim. The circuit court agreed and granted
Gardon’s motion. With respect to the standard of care, the court found that Suhs
had failed to provide any credible evidence as to when the standard of care required
Gardon to perform Suhs’ decompression surgery. The court also found that Suhs
had failed to provide sufficient evidence that Gardon’s alleged negligence had
caused Suhs any damages and, if so, in what amount. The court concluded Brown’s
testimony that Suhs would have been “better” had the surgery been performed
earlier did not provide a basis for the jury to determine the nature and extent of any
damages caused by Gardon’s negligence, and the jury therefore would have been
required to speculate in order to resolve those issues. The court subsequently
entered a written order for judgment in favor of Gardon, and Suhs now appeals.

DISCUSSION

¶12 WISCONSIN STAT. § 805.14(3) permits a defendant to move for
dismissal at the close of the plaintiff’s evidence “on the ground of insufficiency of
evidence.” A court may grant such a motion only if it is satisfied that, “considering
all credible evidence and reasonable inferences therefrom in the light most favorable

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No. 2019AP1062

to the party against whom the motion is made, there is no credible evidence to
sustain a finding in favor of such party.” Sec. 805.14(1).

¶13 On appeal, we will not reverse a circuit court’s decision to dismiss for
insufficient evidence unless the record reveals that the court was “clearly wrong.”
Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 389, 541 N.W.2d 753 (1995).
Moreover, because a circuit court is better positioned than this court to decide the
weight and relevancy of the testimony, we must give substantial deference to the
circuit court’s better ability to assess the evidence. Id. at 388-89. In addition, when
considering whether a plaintiff produced sufficient evidence to support his or her
claim, it is critical to note that a jury’s verdict “cannot be permitted to rest upon
speculation or conjecture.” Schulz v. St. Mary’s Hosp., 81 Wis. 2d 638, 658, 260
N.W.2d 783 (1978) (citation omitted).

¶14 In order to prevail on a medical negligence claim, a plaintiff must
establish four elements: “(1) a breach of (2) a duty owed (3) that results in (4) an
injury or injuries, or damages.” Paul v. Skemp, 2001 WI 42, ¶17, 242 Wis. 2d 507,
625 N.W.2d 860. In other words, the plaintiff must establish “a negligent act or
omission that causes an injury.” Id.

¶15 Here, the circuit court concluded Suhs had not presented sufficient
evidence to support jury findings in his favor on any of the elements of his medical
negligence claim. On appeal, we assume without deciding that Suhs submitted
sufficient evidence regarding Gardon’s breach of a duty owed to Suhs. 3 We

3
Because we assume without deciding that Suhs submitted sufficient evidence regarding
Gardon’s breach of a duty owed to Suhs, we need not address the parties’ arguments regarding
Barney v. Mickelson, 2020 WI 40, 391 Wis. 2d 212, 942 N.W.2d 891, and whether Gardon’s
decision to perform Suhs’ decompression surgery on January 8 rather than January 7 was a
reasonable alternative method of treatment.

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No. 2019AP1062

conclude, however, that the court properly dismissed Suhs’ claims because Suhs did
not submit any credible evidence as to what damages, if any, he sustained as a result
of Gardon’s alleged negligence.

¶16 A medical malpractice defendant may not be held liable unless the
plaintiff’s damages were “caused by the [defendant’s] failure to conform to the
accepted standard of care.” Dettmann v. Flanary, 86 Wis. 2d 728, 737, 273 N.W.2d
348 (1979) (citation omitted). “To establish causation in Wisconsin, the plaintiff
bears the burden of proving that the defendant’s negligence was a substantial factor
in causing the plaintiff’s harm.” Ehlinger v. Sipes, 155 Wis. 2d 1, 12, 454 N.W.2d
754 (1990). Moreover, the evidence must be sufficient “to enable the jury to
measure the loss sustained.” Schulz, 81 Wis. 2d at 656. “The burden is on the
plaintiff to establish to a reasonable certainty the damages sustained. The jury is
not allowed to speculate.” Id. (citation omitted).

¶17 In this case, Suhs relied on Brown’s expert testimony to establish that
Gardon’s alleged negligence—i.e., his decision to perform the decompression
surgery on January 8 rather than January 7—caused Suhs to sustain damages.
Brown merely testified, however, that Suhs would have had a “better outcome” had
Gardon performed surgery on January 7. When asked to explain what that “better
outcome” would have been, Brown simply stated that Suhs would have had “better
bowel, bladder, sexual, and lower extremity motor function, as well as less
numbness and neuropathic pain.” Brown did not offer any opinion as to how much
better any of those symptoms would have been had Gardon performed surgery on
January 7. Moreover, Brown did not opine that Suhs would have had no permanent
deficits had the surgery been performed sooner.

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No. 2019AP1062

¶18 To the contrary, Brown admitted that cauda equina syndrome patients,
like Suhs, who are already experiencing saddle anesthesia at the time of presentation
tend to have permanent deficits. Brown also conceded that even though he had
operated on each of his twenty to thirty cauda equina syndrome patients within
twenty-four hours of the onset of their symptoms, some of those patients had
nevertheless suffered permanent deficits, such as bowel and bladder problems and
foot drop. In addition, Brown acknowledged that Suhs’ condition had improved to
some extent following the January 8 decompression surgery.

¶19 On this evidence, there was no basis for the jury to determine what, if
any, damages Suhs sustained as a result of Gardon’s alleged negligence. Stated
differently, Brown’s testimony did not provide a way for the jury to determine—
even by means of a reasonable inference—what harm, if any, was caused by
Gardon’s failure to operate sooner, and what harm would have occurred regardless
of when the surgery was performed, simply because Suhs was suffering from cauda
equina syndrome. Thus, in order to make that determination, the jury would have
been forced to resort to speculation.

¶20 The applicable jury instruction on medical negligence, WIS JI—CIVIL
1023, helps to illustrate the insufficiency of Brown’s testimony. Had the case been
submitted to the jury, the circuit court would have instructed the jurors as follows:

The evidence indicates without dispute that when Suhs
retained the services of Gardon and placed himself under
Gardon’s care, Suhs was suffering from some illness or
disease. Suhs’ then physical condition cannot be regarded
by you in any way as having been caused or contributed to
by any negligence on the part of Gardon. This question asks
you to determine whether the condition of Suhs’ health, as it
was when Suhs placed himself under the doctor’s care, has
been aggravated or further impaired as a natural result of the
negligence of Gardon’s treatment.

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Suhs sustained injuries before the treatment by Gardon.
Such injuries have caused (and could in the future cause)
Suhs to endure pain and suffering and incur some disability.
In answering these questions on damages, you will entirely
exclude from your consideration all damages which resulted
from the original injury; you will consider only the damages
Suhs sustained as a result of the treatment by Gardon.

It will, therefore, be necessary for you to distinguish and
separate, first, the natural results in damages that flow from
Suhs’ original illness and, second, those that flow from
Gardon’s treatment and allow Suhs only the damages that
naturally resulted from the treatment by Gardon.

Id. (edited to reflect the parties’ names and the circumstances of this case). Thus,
the court would have informed the jury that it was required to distinguish between
any damages Suhs sustained as a result of Gardon’s treatment (including any delay
in his conducting the decompression surgery) and any damages he sustained as a
natural result of his cauda equina syndrome, and that it could only award the former
category of damages. Brown’s testimony did not provide a sufficient basis for the
jury to draw that distinction.

¶21 Moreover, the jury instruction on the burden of proof would have
informed the jury that Suhs had the burden to prove his case “by the greater weight
of the credible evidence, to a reasonable certainty.” WIS JI—CIVIL 200. The
instruction continues: “‘Reasonable certainty’ means that you are persuaded based
upon a rational consideration of the evidence. Absolute certainty is not required,
but a guess is not enough to meet the burden of proof.” Id. For the reasons
explained above, Brown’s testimony in this case was insufficient to give rise to
“reasonable certainty” as to what damages, if any, Suhs sustained as a result of
Gardon’s alleged negligence, and the jury would therefore have been required to
“guess.”

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No. 2019AP1062

¶22 To be sure, Suhs offered other evidence regarding damages, besides
Brown’s testimony. Specifically, Suhs relied on the opinions of Michele Albers, a
vocational rehabilitation counselor and life care planner, and Roger Feldman, an
economist. Albers testified as to Suhs’ loss of earning capacity and as to a “life care
plan” setting forth Suhs’ future treatment expenses. She conceded, however, that
she relies on physicians to provide information about a patient’s physical condition.
Albers further acknowledged that her conclusions were “based on [Suhs’] present
problems” and that she had not considered what his condition would have been had
the decompression surgery been performed earlier. In other words, Albers merely
assumed when performing her analysis that all of Suhs’ permanent physical deficits
were caused by Gardon’s alleged negligence. Feldman, for his part, simply testified
as to the present value of the future treatment expenses and loss of earning capacity
set forth in Albers’ report.

¶23 Thus, neither Feldman nor Albers testified as to the critical question—
namely, what, if any, harm Suhs sustained as a result of Gardon’s alleged negligence
in delaying Suhs’ surgery. Similarly, although Suhs testified regarding his pain and
suffering and his daughter testified regarding her loss of society and companionship,
they were not qualified to—and did not—testify as to the extent to which those
damages were caused by Gardon’s alleged negligence.

¶24 In support of his argument that he submitted sufficient evidence
regarding causation and damages, Suhs relies on Ehlinger, a case involving omitted
treatment. The Ehlinger court held that, in such a case,

the plaintiff need only show that the omitted treatment was
intended to prevent the very type of harm which resulted,
that the plaintiff would have submitted to the treatment, and
that it is more probable than not the treatment could have
lessened or avoided the plaintiff’s injury had it been
rendered. It then is for the trier of fact to determine whether

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No. 2019AP1062

the defendant’s negligence was a substantial factor in
causing the plaintiff’s harm.

Ehlinger, 155 Wis. 2d at 13-14.

¶25 Suhs’ reliance on Ehlinger is misplaced. Ehlinger addressed the
evidence a plaintiff must produce to establish causation and damages in a case
involving omitted treatment. The instant case, however, does not involve omitted
treatment. Gardon did not negligently misdiagnose Suhs’ condition or fail to
provide treatment for it. Instead, Suhs alleges that Gardon was negligent by waiting
too long to perform the decompression surgery. Suhs does not cite any authority in
support of the proposition that the standard set forth in Ehlinger applies to cases
involving delayed, rather than omitted, treatment.

¶26 Moreover, even if we attempted to apply the standard set forth in
Ehlinger in this case, we would still conclude that Suhs failed to submit sufficient
evidence to survive Gardon’s motion to dismiss. As noted above, Ehlinger requires
a plaintiff to show “that it is more probable than not the treatment could have
lessened or avoided the plaintiff’s injury had it been rendered.” Id. at 14. Again,
in this case, Brown merely testified that Suhs’ outcome would have been “better”
had Gardon performed the decompression surgery on January 7. Brown did not
offer any opinion as to how much better Suhs’ symptoms would have been, nor did
he opine that Suhs would not have had any permanent deficits if the surgery had
been performed sooner. Furthermore, Brown conceded that patients with symptoms
like Suhs’ tend to have permanent deficits and that patients Brown had operated on
within twenty-four hours of the onset of symptoms nevertheless suffered permanent
injuries. On this record, Suhs did not establish that it was “more probable than not”
that performing the decompression surgery on January 7 rather than January 8 could
have lessened or avoided Suhs’ injuries.

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No. 2019AP1062

By the Court.—Order affirmed.

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

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