Robert Vyvyan seemed overcome with emotion Wednesday as a Rock County jury agreed with him that a doctor had been negligent, poking a hole in his esophagus six years ago.
The jury voted 10-2 for the verdict against Dr. William Brandt, a longtime local internal medicine specialist, and MMIC Insurance. A 10-2 vote is enough for a verdict in a civil trial.
“It’s what I had hoped for, prayed for,” Vyvyan said afterward.
The jury awarded Vyvyan more than $500,000: $400,000 for future pain and suffering; $100,000 for past pain and suffering; $70,000 for medical expenses; and $12,000 for lost income.
“It wasn’t about the money. I’m a professional engineer, and the most important thing in my profession is to do no harm, and I think that falls right in line with being a doctor,” Vyvyan said.
Vyvyan, of Milton, filed his lawsuit in 2018, claiming malpractice in Brandt’s performance of an upper endoscopy. The procedure involves a probe inserted through the mouth and throat to view Vyvyan’s esophagus, the tube that conveys food to the stomach.
Vyvyan was having trouble swallowing and had lost weight. He occasionally could not swallow at all and had to force himself to vomit.
The procedure at SSM Health St. Mary’s Hospital-Janesville was intended to get a view of the problem with a fiber-optic camera. Brandt saw what he thought was a ring of scar tissue that had narrowed the esophagus, so he inserted devices called dilators to widen the esophagus.
Vyvyan went home after the procedure feeling fine, but he awoke from a nap in intense pain, and he was taken to UW Hospital for emergency surgery, said his lawyer, Scott Salemi.
Salemi said Brandt erred in not seeing that Vyvyan’s esophagus was inflamed. Salemi suggested more conservative treatment—an acid blocker or steroids—could have helped Vyvyan while avoiding the injury.
Defense attorney Mark Budzinski said Brandt did what he had done thousands of times before as an internal medicine specialist in Janesville for more than 40 years: He saw a ring of scar tissue and tried to expand the structure with dilators.
Budzinski pointed out that adverse outcomes are seen in 1% of these procedures, and this was just one of those times.
Salemi argued that Brandt should have diagnosed eosinophilic esophagitis, commonly known as EoE.
EoE is a chronic immune-system disease that inflames the esophagus, as a reaction to food, acid reflux or allergens.
EoE increases the risk of perforations in this procedure and could have been treated with steroids, Salemi said.
"Dr. Brandt wasn’t some kind of treating physician. Dr. Brandt was a cog in the medical system wheel. Dr. Brandt was simply there to scope people, offer dilations and move on,” Salemi said.
“Dr. Brandt took a look at the esophagus, saw a narrowing, did what he has done thousands … of times. … (Brandt) was not a board-certified gastroenterologist, just someone at the hospital doing scopes, just scope after scope after scope, which are relatively routine,” Salemi said.
Budzinski scoffed at the description of Brandt as a cog.
“Bad things happen to good people. That doesn’t mean it’s always somebody’s fault, that somebody was negligent,” Budzinski said.
Brandt started the endoscopy programs in Janesville, Fort Atkinson and Stoughton, Budzinski said, and he had performed the same procedure 9,000 times before he treated Vyvyan.
Budzinski described Brandt as doing the same job any doctor would have.
“If that’s medical negligence, ladies and gentlemen, God help us. That’s the definition of the standard of care, the same process he had used for 40-plus years.”
Salemi said the defense was trying to pull the wool over the jury’s eyes.
Brandt made the wrong treatment decision, so the doctor and his insurance company should be held responsible for the mistake, Salemi said.
Salemi suggested compensation for medical expenses, past pain and suffering, lost wages, and future pain and suffering could be in the millions of dollars. But Salemi said he wanted to be “practical,” so he suggested a $600,000 award for past suffering.
As for future pain and suffering, Salemi left it up to the jury. Vyvyan, a part-time farmer, will have times when he can’t lift a hay bale or will feel pain when he plays catch with his son, Salemi said, and Vyvyan is a young man, so he’ll have a lot of those days.
Editor's note: This story has been updated since it originally appeared in The Gazette.
Michael Gableman has said he is reviewing the 2020 election for Republicans because of the sanctity of democracy, but the former state Supreme Court justice hasn’t been diligent about going to the polls in Wisconsin.
Gableman has not voted in seven elections in Wisconsin in the last three years, including the 2018 race for governor and the 2020 race for state Supreme Court, a review of his voting record shows.
Gableman refused to answer questions Wednesday and didn’t respond to emails asking why he had not voted. He did not say whether he had temporarily moved out of state in recent years.
“You would expect someone to be a little more self-aware before they start preaching, but there’s always a difference between what they preach and what they do,” said Assembly Democratic Leader Gordon Hintz of Oshkosh, who missed the April 2020 election but has otherwise consistently voted in recent years.
At the behest of Assembly Republicans, Gableman is reviewing the presidential election, which courts have repeatedly found was conducted properly. Joe Biden beat Donald Trump in Wisconsin by more than 20,000 votes, or 0.6 points.
Gableman, who claimed without evidence last year that the presidential election was stolen, has a taxpayer-funded budget of $676,000. Last week he said he didn’t understand how elections work but saw his review as essential because democracy underpins American society.
“Democracy is not a thing. It is not an object. It is an idea and this country—this country with its noble past, the best country I believe in the history of the world, is still very much an experiment for the world to be watching, to see whether we can make democracy work,” Gableman told the Green Bay Common Council last week. “If people lose confidence in the honesty of the system by which they are to elect their leaders, that way lies tyranny and the end of the American experiment in democracy.”
Despite that view, Gableman has not consistently participated in the American experiment.
During his time on the state Supreme Court, Gableman regularly showed up at the polls in the town of Brookfield, according to state records.
He left the court in August 2018, when his 10-year term expired. Two weeks later, he didn’t vote in the Republican primary for U.S. Senate, which saw then state-Sen. Leah Vukmir overcome Marine veteran Kevin Nicholson. (Gableman now serves on the advisory board for a political group set up by Nicholson, who is considering running for U.S. Senate or governor next year.)
That fall, Gableman didn’t cast a ballot in the race that saw Democratic U.S. Sen. Tammy Baldwin defeat Vukmir and Democrat Tony Evers unseat Republican Gov. Scott Walker.
In April 2019, Gableman changed his voter registration to New Berlin and cast a ballot in the race for state Supreme Court. That year voters elected Brian Hagedorn, a former Gableman clerk who had been serving as an appeals court judge.
A year later, Gableman didn’t vote in the primary or general election for state Supreme Court. That race saw liberal Dane County Circuit Judge Jill Karofsky displace conservative Justice Daniel Kelly. Gableman served alongside Kelly on the high court for two years.
Gableman also didn’t vote in the August 2020 primary, when Republicans in his area had a five-way primary for state Senate. Gableman did show up at the polls that fall for the presidential election.
This spring, he didn’t vote in the primary or general election for state schools superintendent. Liberal Jill Underly beat conservative Deborah Kerr in that race.
On Wednesday, he quickly walked away from a reporter when asked why he hadn’t voted in recent elections.
“Are you recording me?” Gableman asked. “OK, good. Have a good day.”
Gableman made his brief remark to a reporter as he headed into a meeting at the Machine Shed restaurant in Pewaukee with the Waukesha County Conservative Business Coalition. His speech was closed to the press.
Gableman isn’t the only one saying one thing and doing another when it comes to voting in Wisconsin.
Sarah Godlewski, the Democratic state treasurer who is now running for U.S. Senate, worked for Hillary Clinton’s presidential campaign in 2016 to encourage women to vote. She didn’t cast a ballot in that race.
Jaime Aguilar Mendoza
J. Guadalupe “Lupe” Aguilar Mendoza
Paul D. Cawley
Harold A. Feggestad
Lou Ann Hicks
Octave “Arch” Liesse
Theresa L. Marquis
Ronald A. “Moe” Syverson
As the private sector struggles to fill positions, the countrywide labor shortage hasn’t spared public employers.
In Rock County government, Administrator Josh Smith said the county had struggled “historically and recently” to fill various positions, the most common being certified nursing assistants for Rock Haven, 911 emergency dispatchers and corrections officers for the Rock County Jail.
“We observe that the current economic climate has increased competition for staff, and wage competition is a real issue everywhere. Job postings are located on our website, but they also get spread all over the internet to job sites,” Smith said.
Smith said the county also has started advertising available jobs through billboards and radio spots, something that has never been done before.
“We’ve been trying to be creative in addressing this,” Smith added.
Smith said that creativity has led to a referral bonus program for current employees. The Rock County Board of Supervisors also approved a $15 an hour minimum wage for county employees.
Another step taken by the county has been offering internships, Smith said.
“For many years now we’ve been trying to make the county a more inclusive workplace in order to attract a broader pool of applicants as well as retain the staff we have,” Smith said. “I expect addressing workforce challenges in a more planned and comprehensive way will be a priority for the county in 2022.”
In the city of Beloit, City Manager Lori Curtis Luther said the city was “not immune” to the staffing challenges faced by private employers.
“We have managed to fill most positions, although the number of applications for each position has been lower than in the past,” Luther said.
Seasonal staffing positions also have been harder for the city to fill, Luther added.
“Seasonal staffing was extraordinarily difficult this year, and we are uncertain what the labor market will look like in 2022,” Luther said.
The city, which uses online job platform government jobs.com to list openings, currently lists 13 available positions that need to be filled in the city. Positions range from public works openings to positions within such city departments as community development and transit.
The U.S. Bureau of Labor Statistics released a report Tuesday highlighting the fluctuations of job openings and turnover for August, the most recent month with available data. As of Aug. 31, the number of job openings nationwide decreased to 10.4 million, a decrease of 659,000 job openings. Job openings in the federal government, meanwhile, increased by 22,000.
The largest decreases in job openings were in health care and social assistance fields (224,000 positions filled) along with 178,000 jobs filled in food services, and 124,000 positions filled across state and local governments, the August labor data shows, a potential sign that people could be seeking more government jobs in the months ahead.
But some municipalities in the area have been able to fill all or nearly all positions, with pending offers currently out to prospective employees.
Town of Beloit Finance Director Tim Wellnitz said the town wasn’t facing a worker shortage, noting that a conditional offer for the position of police officer was outstanding as the town’s only open position.