Dane County v. A. S.

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.
December 27, 2024
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. 2024AP493 Cir. Ct. No. 2023GN74

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE GUARDIANSHIP
AND PROTECTIVE PLACEMENT OF A.S.:

DANE COUNTY,

PETITIONER-RESPONDENT,

V.

A. S.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Dane County:
SUSAN M. CRAWFORD, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Graham, 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. 2024AP493

¶1 PER CURIAM. A.S. appeals two orders that were entered
following a contested hearing: an order that appointed a permanent guardian over
A.S.’s person and estate, and an order for protective placement. She argues that
the circuit court erred in admitting into evidence a report that had been prepared
by her treating physician pursuant to WIS. STAT. § 54.36(1).1 We reject A.S.’s
argument and affirm the guardianship and protective placement orders.

BACKGROUND

¶2 A.S. was hospitalized in May 2023 for lower back pain and failure to
thrive. A.S. had been hospitalized for similar issues on multiple prior occasions
and, during this hospitalization, concerns were raised about the care she was
receiving at home and her ability to take care of herself.

¶3 An attorney for the hospital filed a petition for temporary and
permanent guardianship and a petition for protective placement. In the
guardianship petition, the hospital alleged that A.S. had a degenerative brain
disorder that resulted in her incapacity to make informed decisions regarding her
care, custody, and financial affairs. The hospital further alleged that a neighbor,
who was serving as A.S.’s activated power of attorney for health care, recently
passed away. According to the hospital, a temporary guardian was necessary
because A.S. was medically ready for discharge but, without a health care power
of attorney in place, there was no one with the authority to admit her to an

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

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appropriate facility.2 The hospital also sought the appointment of a permanent
guardian, and it nominated an agent to act as guardian of A.S.’s person and estate.

¶4 Along with the petitions, the hospital filed a form document titled
“Examining Physician’s or Psychologist’s Report.” See WIS. STAT. § 54.36(1)
(“Whenever it is proposed to appoint a guardian on the ground that a proposed
ward allegedly has incompetency …, a physician or psychologist, or both, shall
examine the proposed ward and furnish a written report stating the physician or
psychologist’s professional opinion regarding the presence and likely duration of
any medical or other condition causing the proposed ward to have incapacity
….”). The report was filled out by Maryam Zamanian, M.D., who was A.S.’s
physician during this and a prior hospital stay. Throughout this opinion, we refer
to the report that Zamanian provided as the “examining physician’s report” and,
occasionally, as the “report.”3

¶5 A.S. objected to the appointment of a permanent guardian and to any
order for protective placement, and a public defender was appointed to represent
her.

¶6 The circuit court held a final hearing in September 2023 to address
the hospital’s requests for a permanent guardian and protective placement. As
petitioner, the hospital had the burden to prove (among other things) that, because

2
The circuit court appointed a temporary guardian following a June 2023 hearing. A.S.
does not challenge that decision on appeal.
3
Additionally, the Dane County Department of Human Services filed a comprehensive
evaluation that was authored by a county social worker and recommended that A.S. be placed
under guardianship and protective placement. See WIS. STAT. § 55.11. That evaluation is not at
issue here, and we discuss it no further.

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of a “degenerative brain disorder,” A.S. was “unable effectively to receive and
evaluate information or to make or communicate decisions to such an extent that
[she was] unable to meet the essential requirements for … her physical health and
safety.” See WIS. STAT. §§ 54.01 (defining “impairment” to include a
degenerative brain disorder); 54.10(3)(a) (setting forth legal requirements for a
WIS. STAT. ch. 54 incompetency determination); see also WIS JI—CIVIL 7060;
R.S. v. Milwaukee County, 162 Wis. 2d 197, 203, 470 N.W.2d 260 (1991)
(addressing the “components” of an incompetency determination).

¶7 To meet this burden, the hospital presented expert medical testimony
from Dr. Zamanian, as well as testimony from a county social worker, and it
offered the examining physician’s report into evidence. According to the report,
A.S. had “dementia, likely Alzheimer’s,” and her dementia resulted in incapacity
because she “lack[ed] insight into [the] level [of her] other needs [and] medical
conditions.” In her testimony, Zamanian expanded on the reasons for concluding
that the diagnosis was appropriate and the effect that it had on A.S.’s ability to
care for herself. Most significantly, Zamanian testified that A.S. had been
prescribed preventative medications to manage significant respiratory and vascular
disease, and that the impairment of her memory, which was caused by dementia,
resulted in her not taking medications as directed, which caused her underlying
health issues to exacerbate.4

¶8 A.S. objected to the admission of the examining physician’s report.
In so doing, A.S. expressly stipulated to Zamanian’s background and

4
A.S. does not dispute that dementia is a degenerative brain disorder for purposes of
WIS. STAT. § 54.01(6) and (14), and that its condition is permanent or likely to be permanent.

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No. 2024AP493

qualifications as a physician. However, she argued that the report was
inadmissible because Zamanian had merely acted as a “conduit” for the medical
opinions of another physician, contrary to Walworth County v. Therese B., 2003
WI App 223, 267 Wis. 2d 310, 671 N.W.2d 377. Counsel acknowledged that her
objection was not based on “the face of the report itself,” but that it was based on
“outside evidence,” which the circuit court allowed counsel to present. After
considering the evidence and arguments, the court admitted the examining
physician’s report into evidence. We discuss Zamanian’s testimony, A.S.’s
objection, and the circuit court’s rationale for admitting the report at greater length
in the discussion below.

¶9 Ultimately, the circuit court granted the hospital’s petitions. It found
that A.S. was impaired as the result of a degenerative brain disorder, and that her
need for assistance in decision-making or communication was unable to be met
effectively and less restrictively through other means that A.S. would accept.

DISCUSSION

¶10 On appeal, A.S. challenges the circuit court’s decision to admit the
examining physician’s report into evidence during the contested guardianship
proceeding. We review a court’s decision to admit evidence for erroneous
exercise of discretion. Allsop Venture Partners III v. Murphy Desmond SC,
2023 WI 43, ¶23, 407 Wis. 2d 387, 991 N.W.2d 320. “As long as the circuit court
‘examined the relevant facts, applied a proper legal standard and, using a

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No. 2024AP493

demonstrated rational process, reached a reasonable conclusion,’ we will not
disturb its ruling.” Id. (citation omitted).5

¶11 As stated, WIS. STAT. § 54.36(1) addresses the report that must be
furnished by an examining physician or psychologist in the course of a
guardianship proceeding.6 As relevant here, § 54.36(1) provides that “a physician
… shall examine the proposed ward and furnish a written report stating the
physician’s … professional opinion regarding the presence and likely duration of
any medical or other condition causing the proposed ward to have incapacity.” It
further provides that, “[p]rior to the examination on which the report is based,” the
proposed ward should be informed that any statements they make “may be used as
a basis for a finding of incompetency,” and that the proposed ward “has a right to
refuse to participate in the examination, absent a court order, or speak to the
physician.” See § 54.36(1).

¶12 We turn to two Wisconsin cases, R.S., 162 Wis. 2d 197, and
Therese B., 267 Wis. 2d 310, that interpret and apply these statutory provisions.

¶13 In R.S., our supreme court determined that a report furnished under a
prior version of the statute was hearsay, and that it was not admissible in a
contested guardianship proceeding without the testimony of the examining
professional who furnished the report. R.S., 162 Wis. 2d at 204-07. The court

5
Although A.S. does not make any separate argument that pertains to the petition for
protective placement, we understand that, if we were to reverse the guardianship order, it might
follow that the protective placement order would also be reversed. See WIS. STAT. § 55.075(3).
6
For convenience, we follow the lead of other courts in sometimes referring to a
physician or psychologist who furnishes a report under WIS. STAT. § 54.36(1) as an “examining
professional.”

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further interpreted the statute as providing that, in a contested guardianship
proceeding, the petitioner is required to present medical testimony by the
examining professional, and the proposed ward has the right to cross-examine that
professional. Id. at 209. As the court explained, the examining professional
“ha[s] to be qualified to give a medical … opinion on, for example, a diagnosis of
the proposed ward’s mental disorder or disability,” and also on “whether the
proposed ward’s inability to care for [their own self was] caused by the mental
condition alleged in the petition” rather than by “a physical disability.” Id. at 209
n.10. The court concluded its discussion by remarking: “We do not believe that
in a contested guardianship proceeding, a petitioner could carry the burden of
proof without in-person testimony from the examining psychologist or physician.”
Id. at 210.

¶14 Then, in Therese B., we considered a situation in which the
proposed ward exercised her right to remain silent during the examination.
Therese B., 267 Wis. 2d 310, ¶¶4, 6. In that case, because Therese refused to
cooperate with the examination, the examining psychologist reviewed reports by
other medical professionals who had previously examined her, and then relied at
least in part on those reports when he rendered an opinion of Therese’s diagnosis
and the effect it had on her ability to care for herself. Id., ¶4. Therese argued that
the psychologist’s report and testimony were inadmissible because the opinions
were based on the hearsay opinions of other medical professionals, and that she
had been deprived of the statutory right to cross-examine those other
professionals. Id.; see also WIS. STAT. § 54.42(2) (“The proposed ward … has the
right to present and cross-examine witnesses, including any physician or licensed
psychologist who reports to the court concerning the proposed ward.”).

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¶15 We concluded that the examining psychologist’s report and
testimony were admissible, and that Therese had not been deprived of her
statutory right to cross-examine the professional on whose medical opinion the
proposed guardianship was based. Therese B., 267 Wis. 2d 310, ¶¶19-20. In so
doing, we explained that it was “well settled” that a physician may properly
diagnose a patient “based in part upon medical evidence of which [the physician]
has no personal knowledge but which [the physician] gleaned from the reports of
others.” Id., ¶8 (citing Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284, 299,
254 N.W.2d 255 (1977)). We identified two caveats to this rule. First, although a
physician can rely on hearsay when forming a medical opinion, and although the
physician’s opinion may itself be admissible in those circumstances, that does not
transform underlying hearsay into admissible evidence. Id. Second, an expert
cannot be used “solely as a conduit for the hearsay opinions of others.” Id., ¶9.

¶16 It is this second caveat that is most significant in A.S.’s case. As we
explained in Therese B., the problem with allowing an examining professional “to
be nothing more than a conduit for the opinions of others,” id., is that the proposed
ward would be denied a meaningful opportunity to cross-examine the person who
rendered the medical opinion on which the guardianship is based, id., ¶13. An
examining professional may rely on information, including the opinions of other
doctors, that the professional would normally rely on when rendering an opinion
on whether a proposed ward is in need of guardianship. Id., ¶19. However, “[d]ue
process” requires that the examining professional do more than merely
“summarize” or “regurgitat[e]” the opinions reached by other professionals—the
examining professional must “independently confirm[] the facts those opinions are
based upon,” and must “reach an independent opinion only after a disinterested
review of all relevant records.” Id., ¶¶1, 18.

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¶17 Applying that standard, the Therese B. court determined that there
was no due process violation in that case because the record established that, “in
stating his professional opinion,” the examining psychologist “was not
regurgitating the opinions of other professionals.” Id., ¶20. Instead, the record
demonstrated that the examining psychologist “stat[ed] an independent opinion
based upon the medical observations and findings of others, as well as his own
observations and findings, information which he normally relies upon in his daily
practice.” Id.

¶18 We turn to the report and testimony at issue in this case. Here, it is
undisputed that Dr. Zamanian is a physician who is qualified to render a medical
opinion about A.S.’s diagnosis and capacity. It is likewise undisputed that
Zamanian examined A.S., and further, that Zamanian had personal knowledge of
A.S.’s presentation and affect, her symptoms, and some aspects of her medical
history. Indeed, A.S. was Zamanian’s patient during the hospital stay that
prompted the hospital’s guardianship petition, Zamanian met with A.S. on at least
12 different days during that stay, and Zamanian had also provided care to A.S.
during a prior hospital admission in April 2023.

¶19 It is also undisputed that Zamanian relied in part on her consultation
with another doctor, Dr. Elizabeth Chapman, who worked in an area that
Zamanian referred to as “geriatric” services. More specifically, during her cross-
examination, Zamanian acknowledged that she had sought a consultation from
Chapman, who conducted an “Acute Care for Elders (ACE) Initial Assessment.”
Zamanian further acknowledged that, as part of Chapman’s evaluation, Chapman
provided “recommendations” on how geriatric services would answer the
questions on the examining physician’s report. A.S.’s counsel provided a copy of
the assessment, in which Chapman identified certain boxes that should be checked

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and certain information that should be provided on the form document that would
become the report. Zamanian agreed that the answers she gave on her report
“match up” with the answers that Chapman recommended, and that at least some
of the answers she gave were “word-for-word” the same as what Chapman
recommended.7

¶20 The circuit court gave the hospital’s attorney an opportunity to
redirect Zamanian, and Zamanian provided the following additional testimony
about her examination of A.S. and her consultation with Chapman. It was not
“unusual” for Zamanian to refer a patient to another doctor for a second opinion,
or to ask another physician to do an “Acute Care for Elders” assessment.
Zamanian referred A.S. to Chapman because Zamanian wanted additional
information. Although Zamanian had been “influenced by the geriatric
evaluation,” Zamanian testified that she authored the examining physician’s report
and the conclusions she documented in the report were her own:

Q. … Did you in fact author the report—the Examining
Physician’s Report?

A. I wrote it, yes.

Q. And does it contain your own conclusions and
opinions?

A. Yes. I would say that they were likely somewhat
influenced by the geriatric evaluation, but I verified
everything as much as I could with the medical records

7
On appeal, A.S. asserts that “Dr. Chapman instructed Dr. Zamanian as to how to fill out
her report, and Dr. Zamanian followed these directions ‘word for word.’” This assertion is an
overstatement that is not fully supported by a review of the underlying documents. Although a
number of the answers that Zamanian gave matched Chapman’s recommendations “word for
word,” there are places in which Zamanian provided explanations in her examining physician’s
report that went beyond Chapman’s recommendations and provided additional details and
explanations that Chapman had not included in her recommendations.

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No. 2024AP493

from what they have as well and didn’t put anything that I
didn’t agree with.

Q. As well as your own interactions with [A.S.] --

A. Yes.

Q. -- and your own observations, correct?

A. Yes.

¶21 A.S. argued that the examining physician’s report should be
excluded because, counsel argued, Zamanian had “adopt[ed] the directives of
another physician” who was not testifying at the hearing. Counsel argued that the
fact that Zamanian’s opinion “happens to correspond [with Chapman’s opinion] is
not the point,” and that the evidence suggested that here, “[t]he examination was
done by Dr. Chapman and then transcribed by Dr. Zamanian.”

¶22 The circuit court overruled the objection. In so doing, it commented
that A.S.’s characterization of how the examining physician’s report was created
was “not what the witness testified to.” The court appeared to credit Zamanian’s
testimony about how the examining physician’s report was created and, based on
that testimony, the court determined that Zamanian had not simply acted as a
“conduit” for Chapman’s opinions—instead, the court determined that the report
reflected Zamanian’s own opinions. The court explained its ruling as follows:

[Dr. Zamanian] did testify that she did conduct her own
evaluation of [A.S.], reviewed the medical records, did
request the consult. It was appropriate for her to review the
consulting physician’s information. Dr. Zamanian did
testify that the conclusions in her report are her own.

The points that you raised, [A.S.’s counsel], I think
are—go to the weight of the report. And it’s fair argument
… on your part to argue that she was influenced by
Dr. Chapman’s findings, but that’s not a basis for me not to
admit her report.

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No. 2024AP493

¶23 On this record, we conclude that the circuit court did not erroneously
exercise its discretion in admitting the examining physician’s report. Considering
the testimony at the hearing and the content of the report, the court could
reasonably determine that Zamanian conducted an “independent evaluation” of
A.S. and that, as A.S.’s physician, Zamanian had ample opportunity to confirm
any facts that Chapman relied on in reaching her opinion. See Therese B., 267
Wis. 2d 310, ¶18. Although A.S. argues that “Zamanian did not form her own
opinions,” the circuit court made a contrary finding, and A.S. does not show that it
was erroneous. It was within the court’s discretion to credit Zamanian’s testimony
that the opinions she put in the report, while “influenced” by Chapman’s
assessment, were Zamanian’s own opinions. Therefore, the court reasonably
concluded that Zamanian had not simply “regurgitated” or acted as a mere
“conduit” for Chapman’s opinion.

¶24 Indeed, the testimony that Zamanian provided throughout the
hearing supports the conclusion that her medical opinion—that A.S. had a
degenerative brain disorder that caused her to be unable to care for herself—was
based at least in part on Zamanian’s own interactions with A.S. and her
observation of A.S.’s symptoms. As to the diagnosis, Zamanian testified that
“dementia requires loss in certain cognitive domains,” and that “the big one” in
which A.S. “shows the most impairment” was “her memory,” which is a “major
hallmark[]” of dementia. Zamanian testified: “Often when I meet with [A.S.],
she’s unable to recall events or recent conversations in the short-term period,” and
that she had also been “unable” to give “longer-term historical information,
including her educational history, her age, [and] her date of birth.” Zamanian
testified that, “after review of the records,” “meeting with [A.S.],” and “talking to
my geriatric colleagues, we felt comfortable giving [A.S.] the diagnosis of

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dementia because her symptoms have been persistent” and “progressive over
time,” and the doctors had not “identified any reversible cause.” Zamanian also
explained her reasons for concluding that A.S.’s dementia caused her to be unable
to care for herself, and these reasons were based on Zamanian’s interview and
interactions with A.S. Specifically, that A.S. was reliant on several medications to
prevent her respiratory illness and vascular disease from worsening, but that
during Zamanian’s interview of A.S., A.S. was “not really able to … name her
medications” or to “remember when she’s gotten her medications.” Zamanian
testified to specific conversations she had in which A.S. reported that she had
already taken medication that Zamanian knew that A.S. had not taken and vice
versa, and to her concern that A.S. “doesn’t really demonstrate an insight into the
connection between receiving these … medications and … [the stability of her]
medical conditions.” Zamanian’s testimony, which was based on her interactions
with A.S., lends further support to the circuit court’s determination that Zamanian
did not act as a mere “conduit.”

¶25 Finally, A.S. argues that this is unlike the situation in Therese B.,
267 Wis. 2d 310, because the examining physician’s report is a “legal form,” not a
“medical report or treatment record,” and there was no showing that it was
“common” for Zamanian to rely on recommendations of others when filling out
such legal forms. We disagree. Although the form is promulgated by the
Wisconsin Judicial Conference for use in court proceedings, see WIS. STAT.
§ 758.18, the purpose of the form is to document an examining professional’s
medical opinion about her patient’s diagnosis and its symptoms and effects. See
R.S., 162 Wis. 2d at 210 n.10 (a witness in a contested guardianship proceeding is
giving a medical or psychological opinion regarding diagnosis and causation).
Zamanian expressly testified that it is “part of a regular process” to consult with

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No. 2024AP493

other physicians and to rely on “collateral sources as part of the evaluative
process.”8

CONCLUSION

¶26 For all the reasons explained above, we conclude that the circuit
court did not erroneously exercise its discretion in admitting the examining
physician’s report under WIS. STAT. § 54.36(1), and we affirm the guardianship
and protective placement orders.

By the Court.—Orders affirmed.

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

8
A.S. makes a separate argument on appeal that she did not make during the circuit
court proceedings. She argues that, although the examining physician’s report reflects that
Dr. Zamanian warned A.S. that she had a right to refuse to participate in the examination or speak
to Zamanian, the hospital did not prove that A.S. had received that warning before Dr. Chapman
conducted her assessment. We reject this argument for at least the following reasons. First, A.S.
forfeited this argument in the circuit court proceedings, and the reasons for applying the forfeiture
rule are especially strong here. See Gruber v. Village of North Fond du Lac, 2003 WI App 217,
¶27, 267 Wis. 2d 368, 671 N.W.2d 69 (application of the forfeiture rule may be especially
warranted where a forfeited argument could have been rebutted with factual information).
Second, even if the statute required the warnings to be given before Chapman conducted her
assessment—and we do not reach a conclusion on that legal issue here—A.S. does not develop
any argument about what the appropriate remedy would be under these circumstances. See State
v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (We need not consider
arguments that are unsupported by adequate factual and legal citations or are otherwise
undeveloped.).

14