Estate of Annie Yang v. Christopher T. Smith, MD

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.
April 15, 2025
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. 2023AP1576 Cir. Ct. No. 2020CV3977

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

ESTATE OF ANNIE YANG AND SARINA YANG,

PLAINTIFFS-RESPONDENTS,

V.

CHRISTOPHER T. SMITH, MD AND CONTINENTAL CASUALTY COMPANY,

DEFENDANTS-APPELLANTS,

DEF INSURANCE COMPANY, GHI INSURANCE COMPANY AND INJURED
PATIENTS AND FAMILIES COMPENSATION FUND,

DEFENDANTS.

APPEAL from a judgment of the circuit court for Milwaukee
County: CARL ASHLEY, Judge. Affirmed.

Before Donald, P.J., Geenen and Colón, JJ.
No. 2023AP1576

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. Christopher T. Smith, MD and Continental
Casualty Company (collectively Dr. Smith) appeal from a judgment of the circuit
court entered in favor of the Estate of Annie Yang and Sarina Yang (collectively
the Yangs) following a jury trial on the medical malpractice action filed by the
Yangs as a result of Annie’s death following a surgical procedure Dr. Smith
performed on Annie.1 For the reasons set forth below, we affirm.

BACKGROUND

¶2 On February 18, 2023, Annie, who had known issues with an
inherited blood disorder known as spherocytosis and enlargement of the spleen
called splenomegaly, went to the Emergency Department of Aurora Sinai Medical
Center. She complained of severe vomiting, nausea, malaise, and pain in the
upper right quadrant of her abdomen, and she appeared jaundiced.

¶3 After Annie’s admission to the hospital, Dr. Pablo Bozovich, a
hospitalist, oversaw Annie’s care. As part of that care, Dr. Bozovich ordered a
fentanyl patch on February 21, 2018, for Annie’s pain. The order included
instructions to change the patch every three days.

¶4 Annie also received consults from several doctors, including
Dr. Smith, a general surgeon. Dr. Smith recommended that Annie have her spleen

1
We note that while the Honorable Carl Ashley signed the judgment entered in this
matter, the Honorable Christopher Foley presided over the proceedings, including the pretrial
proceedings and the trial itself, and denied the motion for a new trial at the center of the dispute in
this appeal.

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and gallbladder removed, and Dr. Smith performed surgery on Annie on February
23, 2018. Annie lost an estimated 1,300 cubic centimeters of blood during the
surgery, but there were no noted complications. Dr. Smith left the hospital around
5:00 p.m. following the surgery.

¶5 Dr. Bozovich continued to manage Annie’s care, and between
11:00 p.m. and midnight on February 23, 2018, Annie began exhibiting clinical
signs of instability, including severe and uncontrolled pain, dropping blood
pressure, increasing heart rate, and increasing respiratory rate. Annie also became
increasingly obtunded. Eventually, Annie was moved to the intensive care unit
(ICU) and intubated.

¶6 In an effort to determine the cause of Annie’s post-operative
symptoms, Annie was sent for a CT scan to determine if Annie was suffering from
a pulmonary embolism. However, instead of a pulmonary embolism, the CT scan
suggested an occult injury to the stomach or bowel.

¶7 Dr. Smith was notified of Annie’s deteriorating condition on the
morning of February 24, 2018, and he performed an exploratory laparotomy later
that afternoon. During the procedure, he discovered a three centimeter laceration
to the posterior fundus of Annie’s stomach with peritoneal gastric contents. In
other words, Dr. Smith discovered that Annie had a cut in her stomach and her
stomach contents were leaking into her abdominal cavity. Dr. Smith repaired the
laceration, and Annie was returned to the ICU for recovery. Despite the repair,
Annie’s condition continued to deteriorate, and she died on February 26, 2018.

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¶8 The Yangs filed this medical malpractice suit against Dr. Smith,
alleging that Dr. Smith was negligent and Annie died as a result of that
negligence.2 More specifically, based on the expert medical opinion provided by
Dr. Charles Goldman, the Yangs argued that Dr. Smith negligently created a
laceration in Annie’s stomach when he removed her spleen on February 23, 2018,
and then negligently failed to immediately identify and repair that laceration at the
time of surgery on February 23, 2018. The case proceeded to a jury trial.3

¶9 Over the course of the proceedings, Dr. Smith raised the issue of
negligence on the part of others involved in Annie’s care, particularly as it related
to Dr. Bozovich, and argued for adding Dr. Bozovich to the special verdict form
both before and during trial. When the issue of the care provided by other doctors
first arose during motions in limine, the trial court indicated that testimony about
the conduct of other doctors, such as Dr. Bozovich, would be allowed in order to
fully present the facts, but the trial court warned that no other doctors would be
added to the special verdict form, unless the testimony amounted to evidence that
the other doctors were negligent. When the issue arose again during the
discussion of the special verdict form prior to submitting the case to the jury for
deliberation, the trial court found that Dr. Bozovich would not be included on the

2
The original complaint filed on July 6, 2020, did not name Sarina, Annie’s younger
sister, as a plaintiff, and Sarina was added in an amended complaint filed on June 25, 2021.
Sarina asserted claims for loss of companionship and pecuniary losses stemming from Annie’s
lost income. Both the original and amended complaint also named Dr. Gregory M. Rosner and
Aurora Sinai Medical Center, Inc. as defendants. Dr. Rosner and Aurora Sinai Medical Center
have since been dismissed from this action. At no time was Dr. Bozovich named as a defendant
in this matter.
3
We note that Dr. Smith died during the pendency of the proceedings, and he did not
testify at trial. Rather, his deposition testimony was read into the record at trial.

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special verdict form because Dr. Goldman never actually testified at trial that
Dr. Bozovich fell below the standard of care for a hospitalist and was negligent.

¶10 The jury ultimately found Dr. Smith negligent. Dr. Bozovich was
not included on the special verdict form for the jury’s consideration of
Dr. Bozovich’s role in Annie’s death, and the special verdict form only listed
Dr. Smith for the jury’s consideration.

¶11 Dr. Smith moved for a new trial, arguing that the trial court
erroneously excluded Dr. Bozovich from the special verdict form. 4 The trial court
denied Dr. Smith’s motion because “[t]here was no qualified expert opinion
offered in evidence in this trial as to the applicable standard of care for a
hospitalist and that Dr. Bozovich violated that standard.” There was, therefore,
“no basis for the jury to find Dr. Bozovich causally negligent.”

¶12 Dr. Smith appeals. Additional relevant facts will be set forth as
necessary.

DISCUSSION

¶13 On appeal, Dr. Smith argues that the trial court erroneously denied
his motion for a new trial, and he renews his arguments related to the special
verdict form.

¶14 “A party may move to set aside a verdict and for a new trial because
of errors in the trial, or because the verdict is contrary to law or to the weight of

4
Dr. Smith raised additional arguments in his motion for a new trial that he has not
raised on appeal. Therefore, we do not discuss these additional arguments further.

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No. 2023AP1576

evidence, or because of excessive or inadequate damages, … or in the interest of
justice.” WIS. STAT. § 805.15(1) (2023-24).5 In reviewing a trial court’s decision
to deny a motion for a new trial, “we recognize that ‘a [trial] court is in a better
position than an appellate court to determine whether confidence in the correctness
of the outcome at the original trial or hearing has been undermined.’” Morden v.
Continental AG, 2000 WI 51, ¶87, 235 Wis. 2d 325, 611 N.W.2d 659 (citation
omitted).

¶15 Dr. Smith argues that he should receive a new trial because the trial
court erroneously excluded Dr. Bozovich from the special verdict form and his
substantial rights were affected by Dr. Bozovich’s absence from the special verdict
form. We disagree, and we conclude that the trial court properly excluded
Dr. Bozovich because of the lack of expert testimony at trial to support a finding
that Dr. Bozovich was negligent. With no such evidence introduced at trial, Dr.
Bozovich could not be added to the special verdict form, and therefore, the trial
court properly denied Dr. Smith’s motion for a new trial.

¶16 It is well-established that “when apportioning negligence, a jury
must have the opportunity to consider the negligence of all parties to the
transaction, whether or not they be parties to the lawsuit and whether or not they
can be liable to the plaintiff or to the other tort-feasors.” Connar v. West Shore
Equip. of Milwaukee, Inc., 68 Wis. 2d 42, 44-45, 227 N.W.2d 660 (1975). “Only
one question must be affirmatively answered by the trial judge before submitting a
negligence question to the jury: Is there evidence of conduct which, if believed by

5
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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the jury, would constitute negligence on the part of the person or other legal entity
inquired about.” Id. at 45. As applied in a case alleging medical malpractice, the
answer to this question requires an expert opinion “to a reasonable degree of
medical certainty” that a physician was negligent before any question of
negligence can be included on the special verdict form. Zintek v. Perchik, 163
Wis. 2d 439, 456, 471 N.W.2d 522 (Ct. App. 1991), rev’d on other grounds,
Steinberg v. Jensen, 194 Wis. 2d 439, 534 N.W.2d 361 (1995). “[T]he decision
whether the special verdict shall inquire as to the alleged negligence of a non-party
raises a question of law, namely whether evidence exists which warrants
submission of the matter to the jury.” Zintek, 163 Wis. 2d at 454.

¶17 In this case, Dr. Smith’s request to include Dr. Bozovich fails the
threshold requirement that evidence of conduct that would constitute negligence, if
believed by the jury, exists in the record because Dr. Goldman’s testimony never
rose to the level of an expert medical opinion that Dr. Bozovich breached the
applicable standard of care. Without such evidence, Dr. Bozovich could not be
included on the special verdict form. Thus, the trial court properly excluded Dr.
Bozovich from the special verdict and properly denied Dr. Smith’s subsequent
request for a new trial on the grounds that Dr. Bozovich should have been
included on the special verdict form.

¶18 At trial, the Yangs presented the opinion of Dr. Goldman to support
their medical malpractice claim. He described his profession as “a general
surgeon, surgical oncologist, and also palliative care physician,” and his “field of
expertise” was described as “general surgery.” He further testified that he had
experience performing and teaching the type of surgery Annie underwent on
February 23, 2018, to remove her spleen and gallbladder.

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¶19 As to the substance of his opinion, Dr. Goldman’s report that was
presented at trial stated, “The lack of immediate investigation of [Annie’s]
complaints during the evening of February 23, 2018 is a clear violation of the
standard of surgical care and is directly causative of the patient’s death.”
(Emphasis added.) Dr. Goldman then consistently testified to the standard of care
for a surgeon and the breach of that standard of care by Dr. Smith first in creating
the laceration in Annie’s stomach and second in failing to immediately identify
and repair the laceration.

¶20 Importantly, while Dr. Goldman testified to familiarity and
experience working with hospitalists, Dr. Goldman never described or expanded
on a standard of care for a hospitalist, such as Dr. Bozovich, or what a breach of
that standard of care would be. In other words, Dr. Goldman’s testimony never
rose to the level of an expert opinion that Dr. Bozovich breached the standard of
care for a hospitalist.

¶21 To be sure, Dr. Goldman developed critiques of the use of the
fentanyl patch that Dr. Bozovich originally ordered for Annie and of
Dr. Bozovich’s failure to contact Dr. Smith earlier about Annie’s deteriorating
condition. However, while this may have been properly admitted as testimony to
present the full picture of the facts and even to allow for an opportunity to weaken
a case for Dr. Smith’s negligence, Dr. Goldman’s critiques do not amount to an
expert opinion on whether Dr. Bozovich breached a standard of care. See Zintek,
163 Wis. 2d at 457 (distinguishing criticisms of the medical care provided with
expert opinion on negligent medical care).

¶22 Indeed, Dr. Goldman was consistent in his opinion that the breach of
the standard of care in this case amounted to Dr. Smith creating the laceration and

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then Dr. Smith’s failure to immediately identify and repair the laceration.
Furthermore, Dr. Goldman’s critique related to the fentanyl patch was ultimately
turned into an opinion that Dr. Smith should have removed the fentanyl patch prior
to Annie’s surgery, and Dr. Smith should not have allowed the continued use of
the fentanyl patch once Annie went into surgery. Thus, we conclude that
Dr. Bozovich was properly excluded from the special verdict form given the
absence of an expert opinion that Dr. Bozovich breached the standard of care.

¶23 Relatedly, citing to Seifert v. Balink, 2017 WI 2, 372 Wis. 2d 525,
888 N.W.2d 816, Dr. Smith takes issue with Dr. Bozovich’s exclusion from the
special verdict form based on the trial court’s finding that Dr. Goldman was not
qualified to define the standard of care for a hospitalist, and Dr. Smith maintains
that the finding that Dr. Goldman was not able to testify to the standard of care for
Dr. Bozovich was a myopic view of the law covering admission of expert
testimony for medical malpractice. We review the trial court’s finding in this
regard for an erroneous exercise of discretion. Bayer ex rel. Petrucelli v.
Dobbins, 2016 WI App 65, ¶19, 371 Wis. 2d 428, 885 N.W.2d 173.

¶24 When addressing whether Dr. Bozovich would be included on the
special verdict form, the trial court initially entertained that Dr. Goldman could
provide an expert opinion on any alleged negligence by Dr. Bozovich when the
trial court stated:

You know, I don’t agree that he’s not competent to
offer those opinions. The idea that a surgeon based on their
training, education and experience doesn’t understand
that—I mean, I can see an argument that they don’t
understand the general standard of care for a hospitalist.
But the idea that they—that they can’t form a valid,
credible opinion as to whether or not the failure to notify
under these circumstances fell below the standard of care
for a hospitalist, I disagree with that.

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However, after reviewing the trial testimony, the trial court found that
Dr. Goldman did not actually testify that he knew what the standard of care was
for a hospitalist or what it meant as applied to Dr. Bozovich as a hospitalist. In
other words, Dr. Goldman did not provide testimony amounting to an expert
opinion that Dr. Bozovich breached the applicable standard of care, and
Dr. Goldman failed to establish that he was qualified to testify as an expert on the
standard of care for a hospitalist.

¶25 Given the substance of Dr. Goldman’s testimony at trial, we discern
no error in the trial court’s finding. As previously stated, Dr. Goldman described
himself as a general surgeon, with training and experience in general surgery.
Dr. Goldman did testify that he was familiar with the standard of care for
managing a post-operative patient, the signs and symptoms of sepsis, the signs and
symptoms of post-operative complications, and the communications a surgeon
expects to receive on the condition of a post-operative patient. However, none of
this testimony amounts to the standard of care that applies to Dr. Bozovich as a
hospitalist. In fact, at one point during cross-examination, Dr. Goldman stated,
“I’m a surgeon talking about surgeons.” He also testified, “[I]t’s very clear that
Dr. Bozovich is not a surgeon. I’m not—in the medical legal setting, I cannot
opine a[s] to what his standard of care is.” He then clarified that while he stated in
his deposition prior to trial that it was Dr. Bozovich’s duty to do a workup of
Annie’s symptoms on the night of February 23, 2018, that was “opinion” and “that
can’t go beyond that being [his] opinion.”

¶26 Thus, the record demonstrates that Dr. Goldman was not excluded
from providing an expert opinion on the standard of care applicable to
Dr. Bozovich simply because Dr. Goldman was himself a surgeon. Rather, the
record demonstrates that Dr. Goldman was excluded from providing an expert

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opinion on the standard of care applicable to Dr. Bozovich because Dr. Goldman’s
testimony failed to demonstrate that he had any understanding of the applicable
standard of care through any of his training or experience as a surgeon.
Dr. Goldman specifically denied being able to testify about the standard of care
applicable to a hospitalist such as Dr. Bozovich.

¶27 Wisconsin law requires that a medical provider is held to the
standard of the average physician “in the class to which he [or she] belongs, acting
in the same or similar circumstances.” Shier v. Freedman, 58 Wis. 2d 269, 283-
84, 206 N.W.2d 166 (1973). Therefore, in light of Dr. Goldman’s testimony that
he was able to testify to the standard of care for a surgeon and not to a hospitalist,
the trial court did not erroneously exercise its discretion in finding that
Dr. Goldman was not qualified as an expert to testify to the issue of
Dr. Bozovich’s negligence.

CONCLUSION

¶28 In sum, we conclude that the trial court properly excluded
Dr. Bozovich from the special verdict form and, therefore, we conclude that the
trial court appropriately denied Dr. Smith’s motion for a new trial. Consequently,
we affirm.6

By the Court.—Judgment affirmed.

6
As a result of our conclusion, we do not address the harmless error argument raised by
the Yangs on appeal. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App.
1989) (“[C]ases should be decided on the narrowest possible ground[.]”).

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

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