State of Wisconsin/Circuit Court/Brown County
Medical Malpractice
Jury Trial

In a seven-day medical negligence jury trial defense counsel, Mark Budzinski, secured a directed verdict in favor of a neurosurgeon.  The plaintiffs alleged that the surgeon was negligent because he delayed operating on the plaintiff's cauda equina syndrome (“CES”) for approximately 30-33 hours after the onset of the CES.  The Defendants contended that there was no statistically sound basis to conclude that operating at any specific point in time within 48 hours (e.g., within 24 hours of onset) would result in a better outcome.

After seven days of trial and at the close of the plaintiffs' case-in-chief, the defense moved for a directed verdict, arguing that the jury would have to speculate about whether the surgeon breached the standard of care by not operating sooner, because the plaintiffs' expert could not identify a time by which the standard of care required the surgeon to operate.  The jury would also have to speculate about causation because the plaintiffs' expert could not opine about how the plaintiff's condition would have improved if the surgeon had operated earlier as the expert testified only that the plaintiff would have been “better” in some non-specific way. Finally, the plaintiffs offered no evidence from which a jury could reasonably identify what damages, if any, were caused by the non-specific “delay” without speculating. The circuit court agreed on all points and entered a directed verdict in favor of the defense, dismissing the plaintiffs' case.