Kosak v. Boyce

185 Wis. 513 | Wis. | 1925

Owen, J.

It will be noted that the jury found that the defendant failed to exercise such reasonable care and skill as was usually possessed and exercised by physicians and surgeons who specialized in the treatment of the eye, etc., (a) by failing to properly use the instruments and the means employed by him in such a way as to ascertain the nature of the injury to Mr. Kosak’s eye; and (b) by failing to use the X-ray in ascertaining the nature of the injury to Mr. Kosak’s eye. Appellant maintains that there is no evidence to support these findings. We shall not discuss whether the evidence supports the finding that the defendant failed to properly use the instruments and the means employed by him in such a way as to ascertain the nature of the injury to Mr. Kosak’s eye further than to say that the fine particle of steel which was subsequently located and removed from the eye was evidently a very illusive object, as is evidenced by the fact that it required several examinations on the part of Dr. Davis to discover anything resembling a foreign substance in the eye and thereafter two or three X-ray plates to confirm what was formerly little more than a suspicion in the mind of Dr. Davis. We should hesitate to say that under all the circumstances in the case a finding convicting Dr. Boyce of negligence in the use of the opthalmoscope was justified.

The evidence shows that the X-ray is sometimes necessarily employed for the purpose of locating foreign substances in the eye. Although the X-ray is used in not to exceed four per cent, of the cases, according to the testimony in this case, it does indicate that the opthalmoscope cannot be infallibly relied on for that purpose, and the mere fact, standing alone, that Dr. Boyce failed to locate the foreign substance in the plaintiff’s eye by the use of the opthalmoscope does not necessarily indicate that he was negligent in the use thereof, especially in view of the difficulty experienced by Dr. Davis in locating the foreign substance by the same means. But we do think the evidence justifies the finding that Dr. Boyce was negligent in failing .to use the X-ray for the purpose of ascertaining whether a foreign substance was present in the eye.

According to the testimony the X-ray is employed as a sort of last resort, and its use is rather infrequent. It is used only in from two to four per cent, of the cases of eye injuries. The frequency of its use varies somewhat among the practitioners, and whether its use is necessary depends to no little extent upon the judgment of the practitioner. Whether it should be used depends upon the satisfaction which the opthalmoscopic examinations give to the examiner. The use of the X-ray is somewhat expensive, and the expense must be justified. Notwithstanding this, it was testified to by Dr. Abaly, an expert witness produced in behalf of the plaintiff, that under the circumstances of this case an X-ray picture of the eye should have been taken. Some criticism is made of Dr. Abaly’s testimony by the appellant’s attorneys because, due to the form of the question propounded to him, he was made to say that he would .have caused an X-ray picture to be taken — the criticism being that this does not amount to testimony that the exercise of such reasonable care and skill as was usually possessed and exercised by physicians and surgeons who specialized in the treatment of the eye, and who were of good standing, and of the same school of practice, in the vicinity of Madison, •having due regard to the advanced state of medical and surgical science, required the talcing of an X-ray picture. However, we think that a consideration of Dr. Abaly’s testimony as a whole indicates that such was the effect of his testimony. While Dr. Seaman and Dr. Briggs, produced as expert witnesses on behalf of the defendant, on direct examination testified that the exercise of reasonable care and skill did not require the taking of an X-ray picture of the eye, upon cross-examination they very much receded from this position. They conceded that far greater importance should have been attached to the repeated assertions of the plaintiff that he believed there was something in his eye than was accorded by Dr. Boyce. Dr. Boyce testified that he did not attach very much importance to these declarations of the plaintiff because the scratch on the cornea was sufficient to cause a sensation which would lead the plaintiff to believe that there was something in his eye. Both Dr. Seaman and Dr. Briggs testified that these complaints on the part of the patient would raise in their minds some doubt as to the thoroughness of their opthalmoscopic examinations, which doubt they would resolve in favor of the patient, and might lead them to the conclusion that an X-ray examination should be made.

Then it also appears that Dr. Boyce was thoroughly satisfied from his examinations that the cornea had not been perforated, and as a foreign substance could not enter the lens or any other part of the eye without perforating the cornea he was quite convinced that there was nothing in the eye. His testimony is that the examinations he made would have revealed a perforation of the cornea if there had been one. On the other hand, Dr. Davis testified that it was sometimes impossible to discover a perforation of the cornea. If the latter be the case, it would seem to render a most thorough examination for the purpose of discovering whether a foreign substance is in the eye more imperative. We think that the testimony of all the experts might well have left the impression with the jury that the exercise of ordinary care and skill under the circumstances of this case did require the use of the X-ray to ascertain the nature of the injury to plaintiff’s eye. We feel that the answer of the jury in this respect must stand.

But we cannot sustain the finding of the jury that the extent of Mr. Kosak’s disability and the impairment of his eyesight was increased as a natural and probable result of the failure of Dr. Boyce to exercise such reasonable care and skill. The testimony of defendant’s expert witnesses is to the effect that even though the particle of steel had been discovered in the plaintiff’s eye upon the occasion of his first visit to Dr. Boyce’s office, and the same had been removed as soon as it might have been thereafter, plaintiff’s eye would in all probability have been in the same condition. Their testimony is that when a magnet operation is performed to remove a foreign substance from the eye, a cataract usually and naturally results which necessitates a removal of the lens, just as was done in this case. Dr. Davis testified that there would have been no difference in the disability sustained by the plaintiff had the fine particle of steel been removed soon after the injury, because, as he stated, he got a perfect result from his operation. In other words, the testimony of these experts is to the effect that the damage to the eye occurred when the foreign substance entered the eye and not when it was removed; that whenever it is removed by a magnet operation, whether early or late, a cataract will follow which will necessitate the removal of the lens. Dr. Abaly testified that if the particle of steel had been withdrawn from the eye probably within a week after it entered, there would be a good chance for recovery, and by recovery he meant more or less useful vision, and that if it had been so withdrawn and a cataract did not form, as compared with its present condition “it would have been much better, I think.” If there is any testimony in the record upon which the jury’s award of $2,000 damages can be based it is this testimony, and this testimony, when considered in connection with all the other, testimony in the case, is wholly insufficient to enable the jury to fix the amount of damages which plaintiff sustained by reason of the failure of Dr. Boyce to discover and remove the piece of steel while the plaintiff was under his care and treatment. The term “more or less useful vision” and the opinion “it would have been much better, I think,” form no basis upon which the extent of damage sustained may be computed in terms of dollars and cents. We conclude that there is no basis in the record for the assessment of any damages for the impairment of the eyesight.

There is, however, another element of damages for which there is support in the evidence. According to the plaintiff’s testimony he suffered much pain until the piece of steel was removed on the 8th day of April. It is apparent that he would have been spared this pain had the removal taken place at an earlier date. We see no reason why this element of damages is not the proximate result of the defendant’s negligence, for the amount of which the plaintiff is entitled to judgment. It is desirable to avoid a retrial of this action, if possible. To that end we have decided to give the defendant, upon the return of the record to the lower court, the option of submitting to a judgment in favor of plaintiff for $500 or a new trial. We believe that this is the most that a jury would award for the pain and suffering sustained by the plaintiff as the proximate result of the defendant’s negligence. The evidence that he did sustain pain and suffering is confined to his own testimony, as both Dr. Boyce, and Dr. Davis testified that he did not complain of any pain, and it further appears that he continued at work until the removal of the piece of steel on April 8th. As this is an element of damages not compensable under the workmen’s compensation act, no deductions from said $500 should be made under the provisions of sub. (3), sec. 2394 — 25, Stats., for any amount paid to the plaintiff by his employer under the provisions of the workmen’s compensation act.

This disposition of the case makes it unnecessary to discuss the alleged errors of .procedure urged as grounds for reversal by the appellant. We shall, however, take this occasion to discuss one or two for the future guidance of trial courts and the bar.

The appellant makes complaint concerning the form of the verdict. It will be noted that the second question of the special verdict submits to the jury two elements of negligence, designated (a) and (b). The verdict finds the defendant guilty of negligence in both respects. Question 3 inquires generally as to whether the extent of plaintiff’s disability and impairment of eyesight was increased as a natural and probable result of the failure of defendant to exercise such reasonable care and skill. As we have seen, there is no evidence to sustain the finding of negligence on the part of the defendant in his failure to properly use the instruments and means employed by him in such a way as to ascertain the nature of the injury to Mr. Kosak’s eye. This leaves the failure of the defendant to use the X-ray as the only ground of negligence. The answer to question 3 does not tell us whether, ten members of the jury believed the failure of the defendant to use the X-ray increased the extent of plaintiff’s disability and the impairment of his eyesight. A portion of the jury might have felt that one ground of negligence so contributed, while others might have considered that the other ground of negligence was responsible for the increased disability. Under, the form of the question, a juror was warranted in answering question 3 “Yes” if he believed that either ground of negligence contributed to an increased disability or impairment of the eyesight. In other words, the verdict does not indicate whether a requisite number of the jury believed that the extent of disability and impairment of eyesight was increased as a natural and probable result of the failure of Dr. Boyce to use the X-ray. Correct practice required that question 3 be divided so as to make independent inquiry concerning the effect of each ground of negligence submitted in question 2.

The appellant further complains that in view of the fact that three questions of the special verdict are answered by less than a unanimous vote of the jury, it cannot be ascertained from an inspection of such answers whether the same ten jurors agreed on all of them. This is urged as reversal. This matter was considered in Dick v. Heisler, 184 Wis. 77, 198 N. W. 734, and it was there held that it was necessary for the same ten jurors to agree upon answers to every question of the special verdict. It was there suggested that this might be made to appear by requiring the dissenting members of the jury to be indicated wherever the answers were not unanimous. We have before us a verdict where it is possible that five members of the jury disagreed with some feature thereof, and we have no way of telling whether ten agreed on the answer to every question. We take this occasion to say, however, that appellant is in no position to' urge this as reversible error. He had it within his power to make this uncertain verdict definite and certain by polling the jury. We will not tolerate a practice which will permit a party to remain silent upon the coming in of the jury’s verdict and thereafter urge the uncertainty of that verdict as ground for a new trial or a reversal, when he had it within his power then and there, by demanding a poll of the jury, to establish whether the verdict was lawful. He who fails to challenge the regularity of a verdict in this respect when it is returned into court will be held to have waived such irregularity and will not thereafter be permitted to take advantage of it.

By the Court. — The judgment is reversed, and the cause remanded with instructions to grant a new trial, unless within thirty days after the filing of the record in the circuit court the defendant serves notice upon the plaintiff’s attorneys and files the same with the clerk of the court that he elects to permit judgment to be rendered against him in the sum of five hundred ($500) dollars.