114 Wis. 1 | Wis. | 1902
Numerous specific assignments of error are alleged and argued. They will be considered in the order of their presentation.
1. The contention of appellant that error was committed in refusing to remand the present case to the circuit court after the trial had been completed and the verdict rendered is wholly untenable. -It is predicated alone upon the fact that no written order directing the change from circuit to county court was signed hy the judge. The records of the circuit court disclose that in open court the affidavit and motion for such change were presented, and “change of venue ordered to the county court August 28th.” This was a complete compliance with sec. 2625, Stats. 1898, which commands that upon the affidavit and motion “the court shall change the place of trial,” and after waiting, in his discretion, to secure
“After the place of trial . . . shall have been changed and a trial had in the county to which the change was made, the proceedings or order for such change shall be conclusive except as against such objections as shall have been filed in writing upon a motion to remand before such trial was entered upon.”
This statute is obviously intended to cure all defects, and to impose upon a party conclusive presumption of waiver of all objection, and consent to the change, unless he objects in writing before entering upon the trial.
2. We hardly understand the objection to the competency of Drs. Goette and Peck as medical experts. They both testified that they held licenses from the state medical board; and, further, Dr. Goette testified that he was a graduate holding a diploma from a regularly incorporated medical college at a time when that alone would suffice to qualify him to testify. True, the language of Dr. Peck’s testimony as to his qualification was, “I am a physician and surgeon duly licensed to practice in this state.” It perhaps contains an element of conclusion, but in the absence of anything controverting it,
3. Complaint is made of a very extended hypothetical question which was propounded to substantially all of the plaintiff’s medical experts. The objections to it now urged are that it contained the statement that on the 5th, 6th, and 7th days after curettement, plaintiff’s temperature rose to 102.6, and that during the same period she suffered severe pains in the region of her right ovary. It is insisted that this was not in accordance with the evidence, and therefore was misleading to the jury, and rendered the question improper. We find the head nurse, Mrs. Green, testified that at this time “her temperature was 102, and I think 102.6”; and the defendant himself, in his direct examination, speaks of that as the maximum attained during this period. We also find that the plaintiff repeatedly testified that during this period she suffered extreme pain in the region of her ovaries and on the right side. So both of these elements of the objected question had support in the evidence. Whether there are other inaccuracies, either of commission or omission, in this extended hypothetical question, it is not the duty of the court to investigate and ascertain., Those that the appellant points out do not exist. The appellant hardly stands in any position to complain of this question, in any event. When he made the objection thereto upon the trial, the plaintiff’s attorney invited him to suggest any inaccurate statement contained therein, or any proper fact omitted, offering to make due correction. This the defendant’s attorney refused to do. Such
A further objection is somewhat indefinitely made, that certain experts were called on to pass upon the credibility of evidence. We have carefully examined the testimony complained of, and find no support for the objection. In every case, either the question is free from that objection, or the-counsel is urging our attention to testimony related in narrative, which obviously was never given in response to the-printed and objected question. Thus, of Dr. Madden it was-asked if it was proper practice to allow the patient to leave-the sanitarium or hospital, and go to her home, without informing her or her relatives of the true condition of the localized pus or abscess. This was after he had been examined upon a hypothetical state of facts, and had expressed the-opinion that there was such localized pus. Obviously, the question is open to no other construction than that of referring to the situation as to which he had already testified. Uncompleted his answer to that question by saying, “It should have been done.” Some lines further on, after speaking of' other subjects, he is made to say, in narrative, “I think, beyond a doubt, the evidence points to an abscess.” It is absurd for appellant to urge to judges who have themselves participated in trials, and in the make-up of bills of exceptions, that this statement was given in response to the objected question. If it was, it was not responsive, and would not make the question erroneous; and counsel, if he would save an objection thereto, must have moved to strike it out, which he did not do. The objected question to Dr. Brown, as to how long it would require for the abscess to attain a certain size, is expressly-predicated upon a hypothetical statement of facts, and the-physician’s answer is, “From five to eight or ten weeks, perhaps.” This completes the whole answer responsive to that
Eurther assignments of error are predicated upon the permitting of Milwaukee physicians to testify in response to a question whether, in their opinion, certain treatment was proper and “sanctioned” by physicians and surgeons possessing and exercising ordinary skill and intelligence in the vicinity of Oconomowoc. It is claimed, first, that this is calling upon third persons to testify as to the opinion of others. We do not so regard it. It was no more than a method of expressing the inquiry whether the specified treatment was in accord with the methods adopted by such physicians generally. Nor do we discover any force to the second objection,— that Milwaukee physicians should not have been allowed to testify with reference to proper practice in the vicinity of Oconomowoc. The two places are but about thirty miles apart, and the physicians qualified themselves to speak on the subject by testifying that they were familiar with the practice of medicine and customs of the profession in the vicinity of Oconomowoc. We think no error existed in permitting these inquiries to be made. Eurther complaint is made of the inquiry to Dr. Brown, “What conditions were necessary to a thoroughly and completely aseptic surgical operation?” While, of course, the appellant’s counsel is correct in the proposition that defendant W’as not required to have condi
4. Error is .assigned because the plaintiff’s husband was permitted to testify to matter which the appellant contends was not within any agency. It having appeared that his wife had requested him to go to the defendant and make certain inquiries as to the significance of her symptoms, and necessary treatment therefor, he proceeded to testify as to his conversation with the defendant. The only objected question was: “Did he [the defendant] state what the operation would be ? What operation was it he meant, if you know ?” This clearly called for a part of the transaction between the witness and the defendant, wherein the former was acting at the request and on behalf of the plaintiff, to ascertain facts needed by her for her guidance and treatment. This is clearly within the field of agency. Tie was acting in her behalf. Here, again, appellant’s counsel indulges in criticism upon two or three pages of testimony having no relevancy to that question, and which was, of course, given in response to many others. If that testimony was improper, counsel should have made his objection in the trial court, and not waited till he reached this.
5. The seventh assignment of error arises thus: A witness having testified that she was a trained nurse and had had many years’ experience, and having testified with reference to the plaintiff’s symptoms, including the temperature of 102, and that she did' not at any time notice any dangerous symp
6. The eighth assignment of error brings up the denial of motion for nonsuit, motion to direct a verdict for the defendant, and motion to set aside the verdict and grant a new trial. Of course, the rule that if there is any credible evidence,, however it may be contradicted by that of the defense, a question of fact arises to be passed on by the jury, is too trite to need more than statement. The principal claims of malpractice are set forth in the statement of facts, and we have no doubt, from a careful inspection of the record, that there is evidence to support each of those three claims, whatever might be our view as to the preponderance of evidence for or against either of them. With reference to the first, the plaintiff and her roommate, Mrs. Riebe, testify with entire positiveness to the unfitness of the room for care and treatment of a woman in plaintiff’s condition, and of hear neglect by nurses, whereby, while suffering excruciating pains, greatly enhanced by any movement, and while suffering from extreme nausea, she was left without attendance, and required to raise herself and to vomit over the side of the bed, without any receptacle, and that the matter thus ejected was left for hours before being cleaned up; that fecal matter was left standing in open vessels in close proximity to her bed for long periods of time;
On the second question — as to whether defendant departed •from recognized and established methods of treatment in performing the operation of curettement at all, in view of the ■diseased condition of surrounding organs and tissues, which, "by the way, is the most important of his alleged malpractices, in possible results — -there is the testimony of two or three of the physicians, notably Dr. Henrotin, called by the defendant, first, that such operation is frequently proper “when there are no symptoms of pelvic inflammation outside of the uterus,” carrying clearly the implication of impropriety when such symptoms do exist. He also testifies:
“Curettement is frequently the means of doing harm, as well as great benefit. The harm is that septic infections surrounding previously healthy tissue is frequently made possible by the curettement opening, up new avenues of infection, . . . most likely to manifest itself in the Fallopian tubes,' —particularly in the ovaries.”
Dr. Brown testifies:
“The operation of curettement is not proper for the cleaning and scraping of the womb if there was inflammation of*16 the tissues. If that infection is located otherwise, there is all the more reason for not operating. If the history of the patient shows that there had been infection for seven or eight years, or symptoms of it, I would have left it alone; I would have operated for the removal of the infection. I would judge from the hypothesis given that infection had taken place in the left side, in the region of the ovary, prior to entrance to the hospital. Under those conditions I would have operated for the removal of the infection before I curetted.”
Other physicians suggested the same view. We cannot avoid the conviction that the question was an open one for the jury whether it was not failure to exercise proper skill and the judgment ordinarily exercised, in deciding to make the operation of curettement at all at the time, and under the physical conditions existing when it was made, as well as under the surrounding nonaseptic conditions to which plaintiff and Mrs. Riebe testify.
The third element of complaint was failure to diagnose the existence of localized .pus in the right ovary at an early date after the curettement, and to remove the same, instead of allowing the gathering to continue for some ten weeks, and allowing the patient to return to her home without instruction as to the existence of such pus and the necessity for its removal. The evidence is quite abundant, not to say preponderant, that, from the symptoms disclosed, an ordinarily skilful and careful physician would have diagnosed a localized gathering of pus within a couple of weeks after the curettement ; and, with few exceptions, the medical witnesses testify that due care required an operation to remove it by incision and drainage as soon as its existence was discovered. True, there is testimony that palliative treatment might be permissible practice, but this has no more effect than to raise the question of fact for decision by the jury. We therefore conclude that the court would not have been justified in ordering either nonsuit or verdict for the defendant, and that the exer
7. Tbe ninth and eleventh assignments of error complain that tbe element of proximate causation connecting defend-ant’s alleged negligence and plaintiff’s injuries was not found by tbe jury, either expressly by answer to direct question, or impliedly by reason of any instruction making it a prerequisite to affirmative answer to either the first or second question. Tbe fact is as claimed. Instructions went no further than tbe questions themselves; that is, simply to submit tbe fact of negligence in tbe respects stated, and tbe fact of actual-causation of injury. Tbe importance, ordinarily, in negligence cases, of a finding by tbe jury upon tbe Question of proximhte causation as a fact, under proper instruction from tbe court as to tbe law, has been so recently discussed and enforced that there is no occasion to enlarge upon tbe subject again. Sheridan v. Bigelow, 93 Wis. 426, 67 N. W. 732; Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 72 N. W. 735; Maitland v. Gilbert P. Co. 97 Wis. 476, 72 N. W. 1124; Groth v. Thomann, 110 Wis. 488, 86 N. W. 178. Tbe rule is without exception that liability in damages for acts or conduct lacking in ordinary care cannot arise unless tbe act be such that an ordinarily careful person would anticipate that some injury to another might probably result therefrom. Indeed, that circumstance is an essential element of actionable negligence. With meré carelessness tbe law has no concern, unless it be such that some injury may be reasonably anticipated. But tbe rule that tbe question of fact must be passed upon by tbe jury is not without exception. In all of tbe cases above cited, such an exception is noted when tbe fact appears by necessary inference from tbe facts found, or from undisputed evidence. Maitland v. Gilbert P. Co. 97 Wis. 476, 487, 72 N. W. 1124. In line with this exception, in Crouse v. C. & N. W. R. Co. 102 Wis. 196, 203, 78 N. W.
“When a train plunges through an unsafe bridge, there is little room to speculate on proximate cause. If the bridge was negligently and unsafely constructed, the destruction of a> train and the loss of human life thereon must necessarily be contemplated by any reasonable man who built it. He cannot say that he did not anticipate an accident. Such a claim would be puerile. As well might a municipal corporation which has left an open pit in a street defend on the ground that it could not anticipate that a traveler would fall into it.”
And that view was reaffirmed upon the second appearance of the same case in this court. 104 Wis. 473, 478, 80 N. W. 752. In Evansville & T. H. R. Co. v. Carvener, 113 Ind. 51, 53, 14 N. E. 738, 740, the court said:
“A defendant who, in violation of an express statutory duty, places or causes an obstruction in a public highway, will not be heard to say that he did not anticipate an injury which was the direct result of his unlawful act.”
A very marked case of an unavoidable inference from the known facts that the element of proximate causation existed between the act of negligence and the injury is Seaver v. Union, 113 Wis. 322, 89 N. W. 163, where the plaintiff, cither with knowledge of the approach of another team, or by negligent omission to inform himself of its approach, entered into a place in the highway where two teams could not pass each other without peril of injury, and, in turning out and returning to the highway, was capsized and injured. The court held that the relation of proximate cause between his negligence in entering into this space and the injury must be inferred by the court. It is not essential to the existence of actionable negligence, or of liability therefor, that a reasonably prudent person would have foreseen the exact injury which did result. It suffices that some injury to some person
“If the defendant did not serve the plaintiff with the skill, prudence, care, and judgment before mentioned, and the plaintiff, without fault on her part which contributed thereto, was damaged by reason of defendant’s said failure, she is entitled to recover for the damages sustained by her, and thus occasioned.”
The same idea was reiterated more than once in the charge, which was 'declared by this court to be unexceptionable, although it is true that the necessity for anticipation of injury was not discussed. Again, in the very recent case of Kiekhoefer v. Hidershide, 113 Wis. 280, 89 N. W. 189, while the court defined “proximate cause” as including .the idea of probability, yet he instructed the jury:
“In order 'to entitle the plaintiff to recover in this case, you must find the injury, or some of them, for which she now seeks to recover, was the proximate cause of such negligence [sic] ; that is, Was such negligence, if you find there was negligence, the efficient or producing cause ?”
The judgment in this case also was affirmed, though without discussion of the subject now in hand. The situation in the present case is clearly distinguishable from such as the Maitland Case, 97 Wis. 476, 72 N. W. 1124, where an incompetent employee improperly cut off steam and caused an explosion of a gauge, or the Deisenrieter Case, 97 Wis. 279, 72 N. W. 735, where, for the first time in the history of a brewery, gases escaped from one room into another, where plaintiff happened to be temporarily working, in sufficient quantity to injure him. In each of those cases reasonable minds might well differ as to the probability of any injury resulting from the negligent act. It does not seem to us that they can as to the probability of some injury from such im
8. The tenth assignment of error is predicated upon certain instructions to the jury. The charge, while perhaps more prolix and containing more of repetition than was necessary or helpful to the jury, is, in the main, in general accordance with the rules of law as to the measure of duty and liability of a physician. While several exceptions were reserved, the appellant assigns and argues as error only two of these, except as to the question of proximate cause, already discussed. We shall therefore confine our consideration to those specific criticisms. The asserted vice in the first of these appears most strongly in the following quotation:
“A departure from approved methods in general use, if it injures the patient, will render him [the physician] liable, however good his intentions may have been.”
This is criticised because it makes the physician liable in case he adopts new methods, although improved ones, and counsel suggest that no progress in medicine is possible if physicians must adhere to ancient methods; that vaccination or the use of anti-toxin, however wise and generally helpful, would, under that doctrine, have been malpractice originally. The instruction, viewed in the light of the rest of the charge, of course excludes the idea of liability for variations from customary practice merely in the way of increased precautions, recognized as such. Its only application, in the light of the evidence, must have been to the omission of precautions such as it was testified other physicians uniformly took, or in the deviation from such practice by making an operation of curettement under the circumstances presented. The argument made by counsel was met by the supreme court of
“Some standard by which to determine the propriety of treatment must be adopted; otherwise experiments will take the place of skill, and the reckless experimentalists the place of the educated, experienced practitioner. . . . But when the case is one as to which a system of treatment has been followed for a long time, there should be no departure from it, unless the surgeon who does it is prepared to take the risk of establishing by his success the propriety and safety of his experiment. The rule protects the community against reckless experiments, while it admits the adoption of new remedies and modes of treatment only when their benefits have been demonstrated, or when, from the necessity of the case, the surgeon or physician must be left to the exercise of his own skill and experience.”
This view has received support in other cases (Slater v. Baker, 2 Wils. 359 ; Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577; Patten v. Wiggin, 51 Me. 594), and, we think, is substantially 'approved by this court in Nelson v. Harrington, 72 Wis. 591, 604, 40 N. W. 228, 233, where it was held that a so-called clairvoyant physician, pursuing peculiar methods of diagnosis and treatment, must be held to take the risk thereof. It was said:
“One who holds himself out as a medical expert, and accepts employment as a healer of disease, but who relies exclusively for diagnosis and remedies upon some occult influence exerted upon him, or some mental intuition received by him when in an abnormal condition, in like manner takes the risk of the quality or accuracy of such influence or intuition.”
We think the rule laid down by the court is supported by the weight of authority in cases where there can be said to be a thoroughly established and usual method of treating a situation. We have little doubt that, if the first case of vaccination had proved disastrous and injured the patient, the physician should have been held liable. Nor do we believe that a physician of standing and loyalty to his patients will subject
The further error assigned upon the charge is predicated upon a sentence or two used in pursuance of the preceding idea, where, in speaking of the failure to remove the abscess, the court said: “If . . . the defendant did not follow such established practice in the care and treatment of the case for the detection and removal of such abscess, recognized, adopted, and followed by all physicians and surgeons of good standing,” etc., it would be negligence. Counsel merely complains of the use of the word “all,” and seems to have the impression that it required defendant to have and exercise the skill of all the physicians residing in his neighborhood. This, however, is a direct perversion,of the sentence. It declared his liability only in case he omitted a practice which was recognized and adopted by all, in this respect being probably more favorable to the defendant than was justified.
After a careful examination of all of the errors assigned and discussed, we find none which justifies ús in a reversal of the present judgment. It was an extremely mixed question how far the plaintiff’s suffering and permanent dismemberment and impairment of genital function were due to the improper treatment which the jury found she received from the defendant, and how far merely to her disease, but that some were attributable to the former cause might legitimately have been decided by the jury. Her injuries were grievous, but would hardly support a verdict for the amount rendered, but for the permanent injury above mentioned. With that before us, if it résulted from such improper treatment, it is impossible to say that the damages are excessive. The question of severing that suffering and those damages which were the natural consequence and result of plaintiff’s diseased condition and those which were occasioned or enhanced by de
By the Oourt. — Judgment affirmed.