197 Wis. 405 | Wis. | 1928
The extremely unfortunate and unusual result and permanent impairment to plaintiff’s arm following its dislocation January 1, 1924, before it can be made a legal liability against defendant, required a showing by plaintiff that the defendant failed in the discharge of the duty he owed to plaintiff in assuming as a surgeon to treat and care for plaintiff. Under the facts in this case the situation presented was pre-eminently one calling for expert testimony by witnesses qualified by knowledge and experience and able to determine and point out wherein such an unusual and unfortunate condition following a dislocation was because of some failure by defendant to follow the accepted custom and practice of surgeons in the vicinity where he practiced,
Two witnesses were called by defendant as experts and two forms of hypothetical questions were put to each of them by defendant’s counsel, framed to meet the respective lines of testimony as to the treatment of plaintiff between January 5th and 23d as indicated by the testimony on plaintiff’s behalf and by that on defendant’s behalf, as to what was done and the existing conditions between those respective dates. Plaintiff’s counsel objected to such questions because of their failure to incorporate certain features of the testimony. The trial court in then overruling the objection stated' to plaintiff’s counsel that they would have an opportunity later to call attention of the witnesses to any such features. Under the cross-examination, however, of such experts no material modification or enlargement of the facts assumed under either theory of defendant’s hypothetical questions was presented to such witnesses by plaintiff’s counsel and none such is now pointed out. Both of such witnesses testified that under either of said theories so embraced in the hypothetical questions there was no failure by defendant to follow the usual, proper, and customary methods of surgery in that vicinity.
It is contended, however, by appellant that defendant’s own testimony, in substance to the effect that immobilization of the arm for a period of at least three weeks was a proper and required treatment of plaintiff’s arm as defendant saw it, and that freedom of motion of the arm within the seventh or tenth day after, the reduction of the dislocation might be apt to cause another dislocation, thereby fixed his own standard of the required care, and that plaintiff’s testimony then presented an issue as to whether or not the defendant had complied in his actual treatment with such suggested treatment.
Reliance in support of this theory is predicated almost solely upon the claimed analogy between this case and that of the decision in Jacobs v. Grigsby, 187 Wis. 660, 205 N. W. 394, involving a question of liability by the defendant there on account of a radium treatment administered to plaintiff wherein the capsule containing radium dropped from the nose, whefe it was applied, into the stomach. The defendant testified that attached to such capsule was a cord of a required length of six or six and'one-half inches, the end of which could be attached by adhesive plaster to the face, thereby avoiding the danger of the result that happened, and that such method was the usual and customary manner of physicians in that location. There was direct testimony that such cord was not to exceed two inches in length, and it was therefore held that in a matter of that kind no expert testimony was needed other than given by defendant.
The question there presented was so substantially different from that here that the two cases are not on the same foot
We are satisfied from an examination of this record that plaintiff failed to show a breach of duty by defendant making him accountable for plaintiff’s misfortune and that the trial court correctly disposed of this case. This result is required and supported by the prior decisions of this court as well as by the rules established elsewhere. Matuschka v. Murphy, 173 Wis. 484, 488, 180 N. W. 821; Jaeger v. Stratton, 170 Wis. 579, 581, 176 N. W. 61; Hrubes v. Faber, 163 Wis. 89, 94, 157 N. W. 519; O’Grady v. Cadwallader, 183 Iowa, 178, 166 N. W. 755.
This disposition of the case makes it unnecessary to consider other assignments of error.
By the Court. — Judgment affirmed.