The Estate of Annie Yang and Sarina Yang filed a Wisconsin medical malpractice case arising from Annie’s death following a surgical procedure performed by Dr. Christopher T. Smith on Annie, who had an inherited blood disorder known as spherocytosis and enlargement of the spleen called splenomegaly. Dr. Smith recommended that Annie have her spleen 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. Pablo Bozovich managed Annie’s care in the hospital after her surgery. 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. 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.
Dr. Smith performed an exploratory laparotomy the following day during which he discovered a three centimeter laceration to the posterior fundus of Annie’s stomach with peritoneal gastric contents. 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 two days later.
The plaintiffs alleged 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. 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. The trial judge ruled that Dr. Bozovich would not be included on the special verdict form because the expert, Dr. Charles Goldman, never actually testified at trial that Dr. Bozovich fell below the standard of care for a hospitalist and was negligent. The jury found in favor of the plaintiffs, and Dr. Smith appealed.
The Wisconsin Court of Appeals District I stated in its April 15, 22025 Decision: “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.”
The Wisconsin appellate court stated that 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. However, “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 … 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 … 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.”
Source Yang v. Smith, M.D., Appeal No. 2023AP1576.
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