Allen v. Voje

Decision Date01 April 1902
Citation114 Wis. 1,89 N.W. 924
PartiesALLEN v. VOJE.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Waukesha county court; M. S. Griswold, Judge.

Action by Minnie Allen against J. H. Voje for neglect and improper medical treatment of plaintiff in defendant's sanitarium. From a judgment for plaintiff defendant appeals. Affirmed.

The plaintiff, then about 35 years of age, having been long a suffierer from uterine trouble, which, however, did not incapacitate her from doing the ordinary work of a farmer's wife, went for treatment to the defendant, who maintained at Oconomowoc a sanitarium for the treatment of chronic diseases of various sorts. Remaining in his sanitarium for about four weeks for general treatment, she returned to her home for a similar period, under the care of her family physician, and shortly before July 30, 1899, returned to defendant's sanitarium. He made examination, and found suppurating, inflammatory condition of the interior of the uterus, and considerable other inflammation throughout the pelvic region. Plaintiff complains that on this occasion she was placed in a basement room, dark, damp, and uncomfortable, containing charts and casts displaying various parts of the human body, which distressed her greatly, and against which she protested. After a day or two of preparation, there was performed on her the operation of curettement, consisting of the scraping of the internal membrane of the uterus. She offers testimony that this operation was performed under highly improper circumstances, in the same room inhabited by herself and another patient, which was dirty, contained the clothes of the inmates, and had various characteristics making infection probable. After the operation, plaintiff offers evidence that she suffered great inflammation and pain, accompanied by sickness at the stomach, and that she was left without any proper attendance or care, being obliged, notwithstanding her weakness and the great pain occasioned thereby, to care for herself when sick at the stomach; that the matter thrown up was allowed to remain hours, and that the fecal matter from her bowels was allowed to remain uncovered for a long time in the room; that all of these things caused her great distress, mental and physical, besides retarding her recovery. She further claims and offered evidence to show: That, immediately following the operation of curettement, there developed general inflammation and bloat throughout the pelvic region. That extreme pain developed in the region of the right ovary, which previously had been free from pain or indication of trouble,--and relates symptoms which certain of the physicians testified indicated the development of a localization of pus in the right ovary. As the bloated condition diminished, a lump, characterized by severe pain, became perceptible in the right ovarian region, and persisted, increasing somewhat in size. That defendant's attention was repeatedly called to it, but that he gave it no attention or treatment. That she remained under his hands some 10 weeks, becoming more and more run down, and then returned to her home, where, after almost reaching death's door, and the lump before referred to having attained proportions of five or six inches in diameter, it was diagnosed as a tubo-ovarian abscess, and had to be operated upon, resulting in the removal of the right ovary and Fallopian tube, which were found to be filled with pus. The principal claims are: First. That the condition of the room and lack of attention caused plaintiff great temporary discomfort and damage. Secondly. That the plaintiff's condition was such that the operation of curettement was improper; that an ordinarily careful physician would not have subjected her to it, but would have anticipated those injuries which did result, namely, infection of other parts of the body, especially of the ovaries; and that the result of such improper operation was the infection of other parts of plaintiff's body, the formation and localization of pus in the right ovary, the consequent long-continued pain, suffering, and difficult operation, and ultimate loss of the ovary, with the impairment of plaintiff's health and of her genital function. Thirdly. That the operation of curettement was accompanied by neglect of ordinary precautions to render it aseptic, and to guard against infection from the outside, whereby naturally resulted the subsequent conditions. Fourthly. That it was neglect, after the symptoms with reference to the bunch in the right ovarian region were brought to the defendant's attention, not to diagnose the same as a gathering of pus and to remove it; thus saving the plaintiff months of suffering, and the greatly exaggerated operation later. Substantially all of these contentions of negligence were controverted by evidence offered by the defendant. The court overruled motions by the defendant for nonsuit and for the direction of a verdict, and submitted the case to the jury upon three questions, which, with their answers, were as follows: “Question 1. Was the defendant in this action, in the course of his treatment of the plaintiff from May 29 to October 10, 1899, guilty of negligence? Answer. Yes. Question 2. If you answer the first question, ‘Yes,’ did the plaintiff sustain injury in consequence of such negligence? Answer. Yes. Question 3. If you answer both of the preceding questions, ‘Yes,’ at what sum do you assess the plaintiff's damages for such injury? Answer. Three thousand dollars.” Defendant moved to set aside the verdict and for new trial because the damages were excessive, because the evidence did not support the several answers, because of admission of improper evidence, and because of errors in the charge, which motion was overruled, and judgment entered for the plaintiff for the amount found by the jury, from which defendant appeals.Geo. E. Robinson (T. E. Ryan, of counsel), for appellant.

John F. Burke and Paul D. Durant, for respondent.

DODGE, J. (after stating the facts).

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 by 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 section 2625, Rev. St. 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 another judge, on the last day of the term “an order for a change of the place of trial shall be entered.” An order or judgment is the decision of the court. It may be formulated in writing by the judge, or declared by him orally. In the latter event the duty rests upon the clerk to write the substance upon his records. That was done in this case, and thereupon the order became entered as completely as if written out by the judge himself and signed by him. Baker v. Baker, 51 Wis. 538, 8 N. W. 289; Harris v. Snyder (decided March 11th) 89 N. W. 660. The writing is, at most, the evidence of the decision in fact rendered. Findlay v. Ice Co., 104 Wis. 375, 378, 80 N. W. 436. Another answer to appellant's contention consists in the fact that he did not make his objection in time. Section 2628, Rev. St. 1898, provides that “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 intendedto 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, or any cross-examination, it must be understood to mean that he has received a license. It is suggested that section 4, c. 87, of the Laws of 1899, requires physicians holding licenses to procure them to be recorded in the counties where they are to practice; but the only penalty for a failure so to do is prescribed by the same act, and is not an exclusion from the privilege of testifying as experts. That right or privilege is limited only by section 1436, Rev. St. 1898, which contains no such requirement. Schaeffer v. State (decided March 11th) 89 N. W. 481.

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...

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  • State v. Moats
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 1990
    ...Utting's Estate, 250 Wis. 97, 106, 26 N.W.2d 254 (1947); Prentiss v. Strand, 116 Wis. 647, 654-55, 93 N.W. 816 (1903); Allen v. Voje, 114 Wis. 1, 10, 89 N.W. 924 (1902); Bigelow v. Sickles, 80 Wis. 98, 103-04, 49 N.W. 106 (1891); Tebo v. City of Augusta, 90 Wis. 405, 407-08, 63 N.W. 1045 (1......
  • Blake v. Rupe
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    • United States State Supreme Court of Wyoming
    • September 14, 1982
    ...and thereupon the order became entered as completely as if written out by the judge himself and signed by him. * * * " Allen v. Voje, 114 Wis. 1, 89 N.W. 924, 926 (1902). The fact of an existence of an oral order together with its import must be determined on a case by case basis. In this c......
  • Hager v. Clark
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    ...528; Cranford v. O'Shea, 75 Wash. 33, 134 P. 486; Burk v. Foster, 114 Ky. 20, 59 L.R.A. 277, 69 S.W. 1096, 1 Ann. Cas. 304; Allen v. Voje, 114 Wis. 1, 89 N.W. 924; Ferrell v. Ellis, 129 Iowa 614, 105 N.W. 993; Dye Corbin, 59 W.Va. 266, 53 S.E. 147. The performance by a physician of his impl......
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