Miller v. Kim

EICH, C.J.

(dissenting). I respectfully disagree with the majority's conclusion that the trial court erred in giving the "alternative method of diagnosis" instruction, which tells a jury that it should not find a physician negligent "merely because he [or she] made a *201choice of a recognized alternative method of diagnosis."1

The criticism of Dr. Kim in this case is that he failed to diagnose meningitis because he did not perform a spinal tap to test for that condition when he first attended Gloria Miller. Gloria's medical experts testified, in essence, that whenever a young child presents an unexplained fever, a spinal tap should be performed in order to rule out a diagnosis of meningitis. According to these witnesses, a "bright-line" diagnostic rule requiring the administration of a spinal tap to a fevered child applies whether or not other symptoms are present. Kim's medical witnesses, on the other hand, testified that a spinal tap is not automatically indicated; whether to order one as a diagnostic procedure should be determined only after completing an "individualized assessment" of the particular patient. They further stated that administration of a spinal tap for the purpose of diagnosing meningitis is not automatically indicated by the presence of fever, but is only indicated when other symptoms are present, such as vomiting, diarrhea, irritability, or toxicity — none of which were apparent to Kim or the nurse present during the nearly two hours Gloria spent in the emergency room.2

*202On the basis of his examination and observations — which indicated that no such symptoms were present — Kim did not order a spinal tap and concluded that Gloria was not suffering from any "acute" illness but had a viral infection, which he proceeded to treat.

At the instruction conference, the attorneys argued the applicability of the proposed "alternative diagnosis" instruction, and at one point the trial court asked the Millers' attorney whether the record contained evidence of "alternative methods of arriving at the diagnosis" of Gloria's condition. Counsel acknowledged, "There maybe."3 His objection to the instruction was that it was "inappropriate" because of the possibility that it would direct the jury's attention away from the primary question in the case, namely, whether Kim deviated from accepted standards of medical care "in the assessment of this child."

The trial court reviewed what it saw as conflicting medical evidence "as to the method of diagnosis," rejected the Millers' argument and elected to give the instruction, modified as indicated above.

Whether to give a particular instruction is within the trial court's discretion, D'Huyvetter v. A.O. Smith Harvestore Prods., 164 Wis. 2d 306, 334, 475 N.W.2d 587, 597 (Ct. App. 1991), and our review of discretionary determinations is limited under well-established rules.4 I believe the trial court properly exercised its *203discretion in giving the instruction, and neither the Millers nor the majority has persuaded me that the instruction either misled the jury or was otherwise improper.

The Millers also argue that if it was not error to give the instruction, then the trial court should also have given an instruction on informed consent. They claim that, by giving the instruction, the trial court determined that there were "alternative" methods of diagnosing the cause of Gloria's illness and that they had a right to be informed of those diagnostic alternatives so they could knowledgeably participate in Dr. Kim's choice between available methods of diagnosis.

Because I believe that the informed consent statute, § 448.30, Stats., by its plain language, applies only to consent to "treatment," and does not require explanation of alternative methods of diagnosis, see Martin *204v. Richards, 176 Wis. 2d 339, 361-64, 500 N.W.2d 691, 701-03 (Ct. App. 1993) (Eich, C.J., dissenting), petition for review granted, 505 N.W.2d 137 (June 22, 1993) (No. 91-0016), I would uphold the trial court's refusal to give the instruction.

Although the pattern instruction, WlS J I — CIVIL 1023, uses the term "treatment," the trial court ruled that the facts of the case warranted substituting the word "diagnosis" for the word "treatment." I agree with the majority that under suitable circumstances, as here, such a substitution is appropriate. See Treptau v. Behrens Spa, Inc., 247 Wis. 438, 443-44, 20 N.W.2d 108, 111 (1945).

There was conflicting evidence. The Millers stated that they reported Gloria's repeated vomiting and irritability, while the attending nurse and Dr. Kim testified that the information *202they received reflected that Gloria had vomited only once. The jury was free to determine on such evidence that, as Kim testified, Gloria did not present such symptoms in the emergency room.

Counsel's response was: "There may be, Your Honor. Well, there are at least alternative arguments that have been presented for ... assessing the child."

We have described our scope of review as follows:

*203Generally, ”[w]e will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision." Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987). Indeed, "[b]ecause the exercise of discretion is so essential to the trial court's functioning, we generally look for reasons to sustain discretionary determinations." Schneller v. St. Mary's Hosp., 155 Wis. 2d 365, 374, 455 N.W.2d 250, 254 (Ct. App. 1990), aff'd, 162 Wis. 2d 296, 470 N.W.2d 873 (1991).
To determine whether the trial court properly exercised its discretion in a particular matter, we look first to the court's on-the-record explanation of the reasons underlying its decision. And if that explanation indicates that the court looked to and "considered the facts of the case and reasoned its way to a conclusion that is (a) one a reasonable judge could reach and (b) consistent with applicable law, we will affirm the decision even if it is not one with which we ourselves would agree." Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991) (footnote omitted).

Steinbach v. Gustafson, 177 Wis. 2d 178, 185-86, 502 N.W.2d 156, 159 (Ct. App. 1993).