224 Wis. 439 | Wis. | 1937
The state of the evidence at the close of the trial was such as to require a directed verdict in defendant’s favor. This becomes apparent from a consideration of the testimony offered by the plaintiff in support of her claim that the severance of the seventh or facial nerve caused her paralysis. It appears that infection, thrombosis, and injury to the facial nerve in an operation are among the causes of facial paralysis. The plaintiff sought to show that a certain one of these several possible causes was more probable than any of the others as the cause of her difficulty. Her case rests upon an assumption that there was a complete paralysis of the left side of the face immediately following the operation, and upon the claim that défendant, in effect, admitted ignoring the location of the nerve. The testimony of the surgeon called as a witness by the plaintiff was that, if there was an immediate facial paralysis, an injury during the operative procedure was a more probable cause than thrombosis or infection. But an examination of the evidence bearing upon the existence or nonexistence of signs of paralysis fails to show that there was an immediate onset of paralysis, or anything other than that the disturbance of the facial nerve proceeded in such a way that it might have been caused by thrombosis or infection, or both. Dr. Scott, the
“Q. What would prevent a thrombosis or blood clot causing a paralysis after a period of six weeks? A. Nothing. After six weeks, nothing that I know of.”
Dr. Scott made an examination of the plaintiff in the spring of 1936 and found “a residual facial nerve paralysis, that is, one that was not complete. . . . ” The witness was asked a hypothetical question, based on the evidence in the record at that stage of the trial. Pie gave as his opinion:
“Assuming the facts in the hypothetical question to be correct, that the most probable cause of the facial paralysis was injury to the facial nerve during the operative procedure. ... A severance of the nerve either by direct rupture or tearing. Not a contusion or abrasion, or an incomplete laceration, but a complete severance.”
All the witnesses who testified as experts agree that, if the facial nerve were injured instrumentally, the facial paralysis would come suddenly and completely. So the question is: Did the paralysis of the muscles of the left side of plaintiff’s
As to the question whether defendant used the proper degree of care in performing the operation, it was assumed in the hypothetical question that he—
“didn’t look for the bony ridge, which carries the seventh cranial nerve, or the facial nerve, and he didn’t look for the antrum area.”
Defendant had testified, however, with respect to the an-trum, that he didn’t get into it; that he did not see it; that the lateral sinus, a large vein, lay forward,—
“which made it impossible for me to get into the antrum without running a great deal of danger of injury, or breaking into that big vein;”
that he knew where it was, “but the vein was in front of it.” Upon the redirect examination of Dr. Scott, he testified that, leaving out the assumption that defendant testified he did not look for the antrum, and assuming that defendant testified he did not look for the nerve canal, or ridge in which the nerve is lodged, “that is just as negligent, in my opinion, because the location of the ridge is the first thing you must look for,” and that his answer would be the same on either assumption. In performing the operation the defendant looked for and located the lateral sinus, a large vein that
“As far as the facial nerve in question, you naturally look for any facial canal groove. The fact is that you know that your facial canal is low in that dense bone and it is not a thing that particularly worries you in a simple mastoid.”
The assumption that the defendant “testified he did not look for the nerve canal or ridge” is hardly warranted upon a full consideration of the evidence. It is impossible to conclude from the description of all that occurred that the defendant, regardless of consequences and in disregard of whatever was in or near the region, lateral sinus, mastoid antrum, tip cells, outer part of the mastoid, inner table of the skull, facial nerve, and posterior canal wall, proceeded with a curet-ting of the section.
It seems to have been assumed on all sides that, if the facial nerve was in its ordinary place, there would be little or no possibility of injuring it without entering the antrum. Dr. Scott thought that defendant was negligent in not locating the facial nerve and keeping away from it, particularly since there was an abnormality in the position of the lateral sinus, and that might indicate further abnormality. The procedure followed by defendant, however, would have disclosed the presence of the nerve if it had been so misplaced.
The evidence does not warrant an inference that the condition of plaintiff is traceable to any act of the defendant so as to sustain a finding of the jury to that effect. And this lack of evidence cannot be supplied by reading into a statement that — you do not look for the location of the facial nerve in the performance of the operation; that it is important that you avoid striking the nerve; that you locate the antrum — a meaning that some important surgical guidepost was carelessly disregarded. The evidence bearing upon the conduct of the operation and the succeeding manifesta
The most that can be said is that the evidence offered by the plaintiff leaves the cause of the injury to speculation and conjecture, while defendant’s evidence shows the exercise by him of the proper degree of care and skill in the treatment of the plaintiff. Inasmuch as the evidence does not sustain a finding of negligence, defendant was entitled to a dismissal of the action, and it is unnecessary to consider plaintiff’s assignment of error or defendant’s contention that the failure to give notice within two years from the injury prevented the commencement of an action.
By the Court. — Judgment affirmed.