Ehlinger v. Sipes

Kurt Cоry EHLINGER and Ehlinger, minors, by their Litem; Guardian ad Larry Ehlinger and Carol Ehlinger,

Plaintiffs-Appellants,

v. SIPES, M.D., Donald R. M.D., Vogel, Edward G. Bay West Gynecology Obstetrics, Ltd., & Wisconsin Patients Compensation Fund, and John Doe Insurance

Companies, Defendants-Respondents-Petitioners.

Supreme Court Argued 1, No. May 88-0806. November 1989.—Decided 1990.

(Also reported 754.) in 454 N.W.2d defendants-respondents-petitioners For the there by Hickey, Mary Murphy J. were briefs filed Peter E. Whitney, Everson, andBrehm, S.C., and Bay, Everson Green Hickey. argument by and oral Mr. plaintiffs-appellants-respondents For the there was joint by Slattery, brief filed Robert A. D. Sean O'Lochlayne Slattery Hausman, Ltd., Milwaukee; & and Lynn Carey Carey, S.C., Peck & and and Oconomowoc by Slattery. argument and oral Robert A. part

DAY, J. This is a review of that of the deci- Ehlinger appeals, Sipеs, sion of the court of v. 148 Wis. (Ct. 1988), App. 2d 434 N.W.2d 825 which reversed judgment county, of the circuit court for Oconto Judge, presiding, Weisel, Honorable dismissing O. Robert Reserve Ehlingers' against Sipes action Dr. and Bay Gynecology Obstetrics, Ltd., West and for insuffi- ciency of the evidence at the close of Plaintiffs' case. The Ehlingers' against Vogel by Dr. action was also dismissed the circuit court and on the same basis. The court of appeals part affirmed that of the circuit court's decision ruling challenged ques- and not this court. The Ehlingers produced tion is whether the sufficient evi- from which the trier fact could dence determine Sipes' diagnose alleged negligenсe failing Dr. Mrs. Ehlinger's multiple pregnancy factor was substantial Cory, causing injuries children, her twin Kurt and prema- subsequently being suffered as a result of born expert Ehlingers turely. trial, called At an witness Sipes' Dr. that Mrs. testified that Ehlinger failure carrying negligence and twins constituted causing contributing was a factor" "substantial expert injuries. Dr. further testified that twins' opportu- Sipes' negligence deprived Ehlinger Mrs. of the nity pregnancy prolong to receive treatment to her deprived thus her of the chance that children could expert's been healthier. We conclude the testimony present was sufficient to question the causation to the trier of fact. Ehlinger gave Cory

Mrs. to Kurt birth and on June prematurely 1978. twins were born after only thirty-two of gestation. weeks As a their prema- result of births, ture Kurt from spastic suffers quadriplegia and Cory from a hearing suffers severe with loss related speech Ehlingers allege injuries difficulties. The to Cory Sipes' Kurt and were result of Dr. negligent diagnose failure pregnancy the twin to take and mea- premature prevent delivery, sures to allegedly a common complication multiple pregnancy. cases Ehlinger previously Mrs. Sipes' been under Dr. care pregnant while 1975. The pregnancy earlier was carried and Ehlinger gave full-term Mrs. birth to a nor- mal, child. healthy Ehlinger Mrs. testified trial that during the course of her pregnancy, second several fac- suspect tors led her to might carrying she be twins. Mrs. Ehlinger stated that she felt more fatigued, suffered from earlier, back pains, felt "life" and noticeably was larger and during pregnancy. heavier than her first Mrs. Ehlin- ger symptoms testified that she related these to Dr. Sipes directly and him possible even asked if it was she Ehlinger was twins. Dr. carrying Sipes Mrs. stated that seriously" "did not take her and not worry. told her Sipes perform Nor Dr. did an ultrasound examination which, the Ehlingers allege, would have revealed the multiple pregnancy. It not was realized that Mrs. Ehlin- ger carrying was gave twins until she birth to the two children.

Dr. Sipes deniеs his failure to Mrs. multiple Ehlinger's pregnancy negligence constituted or was Cory's Kurt's injuries. Sipes cause of Dr. acknowledged called as an adverse witness at trial and he importance properly diagnosing multiple preg- nancy multiple pregnancy by and that a is definition high Sipes multiple preg- risk. Dr. conceded that in a nancy premature the likelihood of birth is increased and that as a result a different course of treatment is insti- preventing premature delivery, including tuted towards warning patient possibility premature of the deliv- ery, frequent being examinations, more certain of ade- quate prophylactics, decreasing physical nutrition, use of decreasing stress, bedrest, and intercourse, emotional bringing patient hospital Sipes to earlier. Dr. injuries Cory further conceded that the to Kurt and were being prematurely. the result of their born causation, On the issue of Dr. Bernard M. Nathan- Ehlingers' part son, M.D., testified on the behalf as follows: Doctor,

Q you you let opin- me ask this: Do have an ion degree probability to a reasonable of medical as to Sipes whether or not the failure of Dr. contributing twins in this case awas substantial fac- causing premature delivery tor labor and ultimately ensued? Yes,

A I do. Q opinion? What is that My opinion A is that it was.

Q you explain jury, Could to ‍‌‌‌​​‌​‌​​​​​‌‌​‌‌​​‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍thе Court and please. Sipes

A Dr. diagnosis Yes. Had made the of twins timely made, in a manner that should have been then prevent certain measures could have been taken to premature delivery, labor and as the Williams multiple textbook stated as one of the aims of care pregnancy. bedrest, I things putting

And conclude here such patient week, reducing to bed the 30th least activity accordingly. her And these measures would given at least her prolonging a chance at this course, pregnancy. day, Of with each with each week pregnancy area, prolonged premature in the baby being healthier, surviving chances of the [sic] are increased. Sipes case,

theAt close of Plaintiffs' Dr. moved to Ehlingers produce on dismiss the basis the failed suf- ficient evidence from which the trier of fact could deter- Sipes' alleged negligence Dr. mine that caused Kurt's Cory's injuries. granted and The circuit court the concluding Ehlingers produce any motion, to failed multiple pregnancy diag- evidence that had the been Sipes rendered, nosed Dr. and treatment injuries probably the twins suffered more than not would have been lessened or mony Dr. avoided. Nathanson's testi- causation,

was insufficient to establish the circuit compen- reasoned, court because Wisconsin law does not sate for mere "lost chance." Ehlingers appealed. appeals, The court of on 323(a) (Second) Torts, of basis sec. Restatement of reversed and remanded the case for a new trial. Section 323(a) provides:

Negligent Undertaking Performance of to Render undertakes, Services. gratuitously One who or for consideration, to render services to another which he recognize necessary should protection for the person things, subject liability other's or physical resulting other for harm from his failure perform to exercise reasonable care to his undertak- ing, if

(a) his failure to exercise such care increases the risk of such harm . . ..

The court of appeals concluded that Dr. Nathan- testimony provided son's sufficient evidence from which the trier of fact could determine that Dr. Sipes' alleged negligence had "increased the risk" premature births and resulting injuries Ehlinger, would occur. Wis. 2d at 268-69. appeals The court of held that question of whether the increased risk was a substantial factor causing Cory's Kurt's and injuries was then for the trier of fact to resolve. Id. at 269.

Dr. Sipes petitioned review, this court for which was granted. We conclude that the Ehlingers produced suffi- cient present evidence to to the trier question of fact the Dr. Sipes' whether alleged negligence was a substan- tial factor causing Kurt's and Cory's injuries. We disa- however, gree, with the appeals' court of interpretation 323(a). Thus, of sec. reviewed, on the issue we reach the same conclusion as appeals, the court of though on a basis, different accordingly we affirm.

The "increased risk" theory the court appeals followed this case is one of several approaches juris- dictions have taken attempting to address the causa- problem presented tion generally Perdue, here. See Recovery a Lost Chance Survival: When the Doc- for Gambles, Stakes?, tor Up Who Puts 28 South Texas (1987); Andel, Law Review 45-46 Medical Malprac- Right tice: The to Recover the Loss a Chance for of Survival, 12 Pepperdine 973, (1985). Law Review 978 jurisdictions Several have taken approach the in present order to the question causation to the trier of fact, plaintiff only need introduce evidence that defendant's negligence deprived of a "sub- possibility" stantial avoiding or lessening the harm. See, e.g., Counselman, Roberson v. 235 Kan. 686 (Kan. 1984); P.2d 149 Hadley Daniels v. Memorial Hos- (D.C. pital, 1977); Milner, 566 F.2d 749 Cir. Jeanes v.

9 (8th 1970); States, 428 F.2d 598 Cir. Hicks v. United 368 (4th 1966). Roberson, F.2d Cir. In 626 the court stated: question involving negli- causation cases gent potentially treatmеnt of a fatal condition ... is generally by matter to be determined the finder of patient fact where the evidence has established the appreciable given an proper chance to survive if determination, making In treatment. finder patient's of fact should into take account both the properly if chances of survival treated and the extent patient's to which the chances of survival been negligence. reduced the claimed Roberson, Hicks, 686 P.2d at 159. In the court stated the rationale for the possibility'1 approach "substantial follows: any

If possibility there was substantial of survival it, destroyed and defendant has he is аnswerable. Rarely possible is it an demonstrate to absolute certainty happened what would have circum- wrongdoer stances that the did not allow to come to pass. The not in existing law does circumstances certainty require to show to a that the patient would hospitalized have lived had she been operated promptly. on Hicks, 368 F.2d at (emphasis original).

Other jurisdictions have viewed the loss an opportunity as creating for treatment a new cause of See, e.g., States, action. James v. United F. Supp. (N.D. 1980). Damages Cal. are in propor- awarded tion ‍‌‌‌​​‌​‌​​​​​‌‌​‌‌​​‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍to the likelihood of success that treatment approach would have This supported by had. an oft- quoted Causation, commentator the field. See King, Valuation, and Chance in Injury Personal Torts Involv- ing Preexisting Consequences, Conditions and Future (1981). 90 Yale L.J. 1353

A diminishing jurisdictions number of have taken See, e.g., Pillsbury-Flood an nothing" approach. "all or 299, Hospital, v. Portsmouth 128 N.H. 512 A.2d 1126 (1986); James, 404, Sherer v. 290 S.C. 351 S.E.2d 148 (1986); Summer, Curry 468, v. App. 136 Ill. 3d 483 (Ill. 1985); 4App. Gooding N.E.2d 711 Dist. v. Univer- Inc., sity Bldg., (Fla. 1984); Hosp. 445 So. 2d 1015 Charity Cincinnati, Inc., Cooper v. Sisters 27 Ohio 242, (1971). St. 2d 272 N.E.2d 97 Under the "all or nothing" approach, to establish causation the probable must show that it is more than not that by care the defendant would have been successful or avoiding lessening plaintiffs harm. This was the approach followed circuit сourt this case. have,

A jurisdictions number of like the court of 323(a), appeals, applied jurisdictions sec. but these have interpretations differed their of how the "increased theory applies minority risk" case such this. A as interpreted 323(a) jurisdictions compensat- have sec. as See, e.g., ing opportunity for the lost for treatment itself. Inc., v. Saint Francis McKellips Hosp., 741 P.2d 467 (Okla. 1987). sepa- are similar Damages awarded approach. majority jurisdic- rate cause of action tions, however, 323(a) interpreted lessening sec. See, e.g., plaintiffs proof burden of on causation. 399, (1984); Dollinger, Evers v. N.J. A.2d 405 609, Group Co-op., Herskovits v. Hеalth 99 Wash. 2d (1983); City Community Thompson P.2d 474 v. Sun Inc., 597, (1984); 141 Ariz. Jones v. Hosp., 688 P.2d 605 410, (1981); Hospital, 494 Pa. 431 A.2d 920 Montefiore Hamil v. Bashline, (1978). 481 Pa. 392 A.2d 1280 shows that the defendant's negligence Once occur, injury increased the risk that the would 323(a) of sec. allows the trier fact to determine whether in negligence was substantial factor causing interpretation This injury. followed the court appeals of here. 323(a). previously approved

This court has of sec. Co., 530, See Sanem v. Home Ins. 119 Wis. 2d 350 (1984). Sanem, prior duty N.W.2d 89 Even to in 323(a) long described sec. been the common-law in rule v. Hosp., Wisconsin. See Johnson Misericordia 521, 561, (Ct. 1980), Wis. 2d App. 97 294 N.W.2d 501 708, aff'd., (1981). Wis. 99 2d 301 N.W.2d 156 We disa however, gree, appeals' interpretation with the court of 323(a) of how sec. applies to the circumstances in this 323(a) case. Section as generally relating only viewed See, duty Perdue, to the of negligence element action. n.85; Sherer, 28 South Law Texas Review at 51 see also 150-51; Curry, 351 S.E.2d at 483 N.E.2d at 717. Section 323(a) not, appeals to, does as the of court construed it a plaintiffs production lessen of on burden of issue causation. The issue in was unaddressed Sanem.

We conclude the evidence this was suffi- case cient under current present Wisconsin law to the causa- question tion to the trier fact. To establish causation Wisconsin, proving bears the burden of the defendant's negligence was a substantial factor in causing harm. Merco Distg. Corp. v. Co., Com'l. 455, 458, Police Alarm 84 Wis. 2d (1978). phrase N.W.2d 652 "The 'substantial factor' denotes that the has defendant's conduct such an effect in producing fact, the harm trier lead the as a person, regard cause, reasonable it as a using that popular word sense." Id. at 458-59. The test has been one significance described as rather quan- than Prosser, Torts, 41, turn. See Law sec. at 240 n.29. " 'All required that is in negligence plain cases is for the present probable tiff to facts negligence from which " may reasonably Johnson, causal relations be inferred.' Zimbelman, 97 Wis. 2d at 564 (quoting Purcell v. 75, (1972)). Ariz. App. 500 P.2d One who negli gently creates a dangerous may condition bе held liable though even another cause is also a substantial factor contributing Johnson, to the result. 97 Wis. 2d at 561. may "There be more than one substantial causative ‍‌‌‌​​‌​‌​​​​​‌‌​‌‌​​‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍fac Merco, in any given tor case." 84 Wis. 2d at 459. The defendant's negligent conduct need not be the sole or primary factor in causing plaintiffs harm. Sumnicht Toyota Sales, v. 338, 351, Motor 121 Wis. 2d 360 N.W.2d (1984). 2 Sipes

Dr. satisfy contends that order to their production causation, burden of on the issue of Ehlingers must show that a proper diagnosis been appropriate rendered, made and treatment it is more probable Cory than not Kurt and would suf- not have fered their or injuries injuries their would have been less less, requirе asserts, severe. Dr. anything Sipes To would specu- allow the issue of causation to be decided on mere conjecture. disagree lation and We that to cau- establish Ehlingers proper diagnosis sation the must show that and treatment would have been successful. We conclude nature, that a case of this where the causal relation- ship negligence between the defendant's and the alleged plaintiffs only by surmising harm can be inferred as to plaintiffs what the condition would have been had the care, ordinary defendant exercised satisfy his or her causation, of production burden on need only show that the omitted treatment was intended resulted, very prevent type of harm which 13 treatment, would have submitted to the probable it is more than not the could treatment plaintiffs have lessened or injury avoided the had it been rendered. It then for the trier fact to determine whether negligence defendant's was a substantial plaintiffs in causing factor harm.

A physician is not an or guarantor insurer of the a diagnosis, correctness of but or he she must exercise 338; and skill. Id. care see v. also Francois Mokrohisky, 196, 201, 67 2d 226 Wis. N.W.2d (1975); DeSham v. Taugher, 446, 449, 183 Wis. (1924). N.W. 268 A negligent diagnosis followed improper treatment is actionable where it is a substan tial in causing factor Carson v. injury. Beloit, 282, 291, (1966). Wis. 2d 145 N.W.2d 112 Improper trеatment includes the failure to warn a patient of the risks associated with a condition and the failure to advise the patient as to appropriate conduct. Schuster v. Altenberg, 223, 230, 424 144 Wis. 2d N.W.2d (1988). question Merco,

Causation is a of fact. at Wis. 2d A459. motion to dismiss for insufficiency of the evi- dence should not be granted "unless there is no credible evidence to support finding plaintiff for the when all credible evidence and reasonable inferences therefrom in are light considered the plain- most favorable to the Downs, tiff." Christianson 332, 334-35, v. 90 Wis. 2d (1979). 279 N.W.2d 918 Although this court has often considered cases involving physician's allegedly negli- gent misdiagnosis, it has seldom addressed the of issue suffiсiency the necessary the evidence to establish causation in such circumstances.

In decisions, several this court affirmed dismissal plaintiffs the action on the plaintiff basis the made no showing that the defendant failed to conform to the See, appropriate e.g., Christianson, standard of care. 337; Carson, Wis. 2d at 32 Wis. 2d at 291-93. Sturm, In Bailey v. 87, 59 Wis. 2d 207 N.W.2d 653 (1973), and Dettmann v. Flanary, 728, 86 Wis. 2d (1979), N.W.2d 348 this court considered the sufficiency causation, the evidence on but affirmed dismissal of plaintiffs the grounds cases on other than that at issue here.

In Bailey, plaintiff alleged the Dr. Pitts' failure to timely operate upon eye her condition resulted in her losing sight eye. one plaintiffs expert testifiеd operation that had an been performed 10, on December 1966, there was good "a chance that her eyesight may saved," have been although there was guarantee "no that that would eye the ..." This court did [have] save[d] not reach the issue of the sufficiency of the evidence on causation, however, because it had been established plaintiffs trial sight irretrievably had been lost she first consulted with Dr. Pitts on Decem- before 1966. Id. at 97. ber Dettmann,

In plaintiff suffered from cancer and brought suit alleging the defendant had negligently failed upper a mass and outer area of her breast, right away In from the areola. a subsequent examination, a cancerous mass was diagnosed the are- ola area the same breast. Despite claim same, that the masses were the all of the experts medical who in agreement testified were there existed two separate masses. This court held failed to relationship establish a causal between defendant's alleged negligence the first examination injury and her produce any because failed to credible evi- upper right dence that the mass in the of her breast was same as proved that which cancerous. Id. at 741. Thus, there was no evidence that the alleged defendant's negligence any relationship causal whatsoever Compare Merco, harm. 84 Wis. 2d at 460-61. cases,

In only two failure diagnose Schuster and Dumer v. St. Michael's Hosp., 69 Wis. 2d (1975), N.W.2d 372 did this court specific address the question causation at issue here. Schuster,

In Mrs. Schuster was psychiat- under the ric care, care the defendant. During course of her fatally injured Mrs. Schuster was in an automobile acci- dent which she was the Mrs. driver. daugh- Schuster's ter, plaintiffs, one of the was a passenger the automo- bile and a result of paralyzed. the accident was The plaintiffs alleged the negligently defendant to diag- failed nose Mrs. psychotic Schuster's condition and take action, appropriate including commitment, seeking medication, administering proper and warning the family Schuster of the risks associated with Mrs. Schuster's condition. The plaintiffs alleged farther the defendant's negligence was a substantial factor causing the automobile accident. The circuit court dis- complaint. missed the This court and held the reversed plaintiffs' complaint stated cause action for negli- gent treatment, diagnosis and stating: only allegations negli- distinction between the

gent diagnosis present treatment and in the case malpractice those which constitute most claims is the type However, of harm negligent which resulted. failure to properly psychiatric or treat a may condition constitute the cause-in-fact of harm to patient parties and third if can it be established that with diagnosis and treatment could patient's condition and behavior ‍‌‌‌​​‌​‌​​​​​‌‌​‌‌​​‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍have been corrected or controlled.

Id. (emphasis added). at 230 This court held that whether the was defendant in negligent diagnosing and treating Mrs. Schuster's condition and whether alleged negligence was a substantial factor in causing the plaintiffs' questions for injuries were the trier of fact to resolve. Id. 231. Dumer, analogous Dumer. In closely

More Mrs. Dumer sought treatment from the defendants for a rash. The defendаnts misdiagnosed the condition as an aller- At the gic reaction. time Mrs. Dumer approximately was pregnant. one month The condition later proved to be born, rubella and when Mrs. Dumer's child suffered from syndrome. rubella Mrs. Dumer brought seeking suit damages for the deformity costs sustained of because and defects of the Mrs. Dumer child. alleged defend- had negligently ants to failed the rubella and possible warn her of the disease's effects upon preg- her nancy. In complaint, her Mrs. Dumer stated informed, she been so she have sought would an abortion prevent the birth. The circuit court dismissed the reversed, This complaint. court reasoning that sufficient аlleged facts had been to conclude the defendants were rubella, negligent not diagnosing the inquiring as pregnant, whether Mrs. Dumer warning was and her of Id. the possible upon effects of the disease pregnancy. complete at 776. This court further stated that "[t]o of cause action must then convince the they trier fact that sought would have and submitted to an abortion of the wife and that the abortion [would legally available to them.'' Id. been]

Schuster and Dumer are distinguishable from the case, In respect. part case here one each omitted treatment, Schuster psychiatric an commitment Dumer,

abortion such its a nature that suc- instituted, cess, if was a matter of certainty. reasonable inBut neither case was the success of the omitted treat- necessary plaintiffs' ment considered to the burden of production on In causation. a case such presented here, where given malady natures and omitted if treatment the success of the treatment instituted is matter certainty, place not a of reasonable we refuse to upon plaintiff an injured of proving burden what probably more than not would happened have had the negligent. defendant not been While the bur- present den question to the causation to the of trier fact required, is less than otherwise and to that extent does involve some measure of uncertainty, have courts in generally allowing been liberal the trier of fact to determine whether the defendant's negligence caused the sec, Prosser, in plaintiffs injury such See circumstances. 41, 242-43; Hicks, (". also see 368 at 632 . F.2d n.3 . if might victim by have been precaution saved a omitted, which the negligently defendant the omission is harm, deemed to have caused though even is not it possible to conclusively precaution demonstrate that the victim."). fact would have saved the Greater uncer- tainty would if expert required be involved an were to testify probably to what mоre than not would have happened had the appropriate defendant rendered care. Herskovits, See previ- P.2d at 478. We find the rule ously products stated in liability context that "[t]he required plaintiff prove law of this state has never a to negative of injuries fact what the would been have applicable had there been no equally defect" here. Sumnicht, 121 Wis. 2d at 357. requires prove

'A rule of law which a to what portion by party of indivisible harm was caused each might happened and what have lieu what did requires happen speculation proof obvious of the impossible. approach This converts the common law governing principles legal rules causation into a uncertainty.' morass confusion and Id. at (quoting Volkswagenwerk, Mitchell v. (8th 1982). F.2d 1204-05 Cir. The difficulties proving involved a negative preva- fact are especially lent a malpractice medical involving case a physician's misdiagnosis. profession The medical is not an exact and its science members are subject liability not for Francois, mere unfavorable results. See 67 Wis. 2d at Physicians 201-02. not guarantors are insurers or See their work. id. require Yet to a in a case of type prove this probably what more than not would happened had the defendant not been negligent that, require just еxpert would testimony physician a speculating particular as to treatment, the success of a inherently incapable fact which of proof to a reasona- certainty. ble negligent "When defendant's action or effectively inaction has person's terminated a chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has Hicks, put beyond possibility the of realization.” 368 632; F.2d at see McKellips, also at 741 P.2d 474. Sipes Dr. contends that the evidence here fails for plaintiffs the same reason as the evidence Merco. We Merсo, do not Merco a the Ehlingers' find bar to case. In plaintiffs insufficiency the case was for dismissed the evidence the plaintiff prove because failed to when the burglary occurred, Merco, positive 84 2d fact. Wis. Here, alleged in proof Ehlingers' 460. the failure is the inability prove importantly, a negative fact. More Merco, occurred, burglary proof absent of when the there was no from which the basis trier fact could probable

infer that it was more than not that the defen- negligence any relationship dant's causal whatsoever to the harm. Id. at 460-61. In a case such as presented by showing here, we conclude thаt that the prevent very omitted treatment was intended to plaintiff resulted, harm which that the would have sub- treatment, mitted to the and that the treatment could harm, lessened or avoided the estab- alleged negligence lishes a sufficient nexus between the and harm to allow the trier of fact to determine whether alleged negligence causing was a substantial factor in the harm. appeals

The court of has twice considered cases addressing sufficiency of the evidence on causation presented in circumstances similar to that here. Gegan In Backwinkel, v. Wis. 2d (Ct. App. 1987), plaintiffs brought N.W.2d alleging suit negligently the defendants had failed to Gegan's perforated and treat Mr. bowel, a condition physicians which resulted his death. Two testified on plaintiffs' negligence behalf that the defendants' causing Gegan's a substantial factor in Mr. death. The jury causally negligent. found the defendants appealed, contending defendants there was no evidence degree certainty to a reasonable of medical, negligence Gegan's defendants' caused Mr. death. The appeals court of affirmed on the basis there was credible supported jury's evidence which verdict. Id. at 899. appeals required The court of was not to address the precise questiоn here, however, what measure of evi- required satisfy dence is for the his or her production present burden of on causation order to expert the fact, issue to the trier of because there was testimony Gegan that had Mr. received care the

20 that he likelihood would have survived was better than ninety percent.

In Schammel, 763, Finn v. 140 Wis. 2d N.W.2d (Ct. 1987), App. the plaintiff the alleged defendant negligently failed do necessary certain acts for the reimplantation of fingers plaintiff several severed work a accident. The defendant contended fin- that gers badly had been so damaged that whether the defen- dant had been negligent wаs A special irrelevant. instruction asked jury they whether believed to a certainty reasonable reimplantation of one or more of the fingers would have been successful. The jury found the defendant negligent spe- but answered the cial instruction The spe- "No." circuit court struck the cial instruction answer and directed a verdict for the plaintiff, reasoning plaintiff to damages entitled irrespective reimplantation of whether would have been appeals reversed, successful. The court of stating that the "loss of compensable a chance" alone is not in Wis- appeals consin. court of viewed Wisсonsin law as adhering nothing" approach. to the "all or Id. at 771-74. appeals The court of interpreted this court's decisions Bailey Wisconsin, and Lobermeier v. General Co. Tel. (1984), 2dWis. 349 N.W.2d 466 as establishing "if plaintiff prove cannot to a cer- reasonable tainty that would success have resulted but for the negligence, defendant's nothing recovers recovering chance, rather than the value of lost Finn, a whether 10% chance or 95% chance." [it be] 140 Wis. 2d at 771-72. appeals'

We with disagree interpreta- the court Lobermeier, Bailey Finn. tions of and over-rule Bailey Neither nor Lobermeier stand for the rule that a case of this nature must establish that treаtment more probably omitted than not would have plaintiffs lessening or the avoiding in successful been recovery Bailey, plaintiff was denied In the injuries. plaintiff that the uncontroverted it was because eye in her she irretrievably sight lost the already before by the defendant. Bai treated negligently allegedly was Thus, proper care the ley, 2d at 97-98. 59 Wis. Lobermeier is could not have been successful. defendant recov plaintiff sought there the distinguishable because by the proper which care ery for other than that harm Lobermeier, In prevent. ‍‌‌‌​​‌​‌​​​​​‌‌​‌‌​​‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍the intended to defendant was hearing loss as a result of the defen sustained a plaintiff аlleged that the further negligence. dant's opportunity him deprived of the negligence defendant's in and he to recover journalism sought a career pursue recovery on the basis earnings. This court denied future wholly speculative, holding that recov damages the were if in only plaintiff proved be had a career ery could Lobermeier, 119 reasonably certain. Wis. journalism was 152. 2d at in appeals' the court of conclusion disagree

We with follows of this nature Wisconsin law Finn that a case this, In approach. a case such as nothing" the "all or proper treatment more plaintiff need not show not would have been successful lessen- probably than injuries prerequisite as a ing avoiding or production on the issue of his or her burden of satisfying requirements previ- other In addition to the causation. noted, is that ously required all that or could have lessened proper treatment establish Hicks, Compare 368 F.2d plaintiffs harm. avoided the of the may fact consider evidence 632. The trier of determining of success of treatment likelihood in caus- a substantial factor negligence whether it was not harm, may yet conclude that ing the injuries irrespective because the would have occurred (Second) negligence. Torts, See Restatement sеc. comment If 432 and b to that section. the defendant's negligence is found to have been a substantial factor causing may harm, trier of fact also consider proper evidence the likelihood of success of treatment determining damages the amount of be to awarded. By appeals Court —The decision the court of affirmed; is and for cause remanded a trial. new (concurring). agree

STEINMETZ, J. I with the majority that the case should be remanded for newa clarify interpret I I trial. write to the law as it. plain- The trial court was error to hold that Ehlinger, prove proper tiff, to Carol that treatment given care, which was hеr not to as a Dr. result of Sipes' pregnant to conceded failure she was twins, with would to have worked avoid the children's prove The conditions. does not have to non-negligent result would have been if different care provided. had been showing test,

Under the substantial factor provided proof medical care not is sufficient negligent conduct increased risk and deprived patient opportunity continuing of the for pregnancy. issue one of a normal substantial factor. The prove does not the ratio of success opportunity proof the absent care. The lost line of constituting proof be should considered as sufficient jury theory create issue under the substantial factor causation. majority.

I concur with the

Case Details

Case Name: Ehlinger v. Sipes

Court Name: Wisconsin Supreme Court

Date Published: May 2, 1990

Citation: 454 N.W.2d 754

Docket Number: 88-0806

Court Abbreviation: Wis.