Beaudoin v. Watertown Memorial Hospital

• Decision Date: 04 October 1966
• Citation: 145 N.W.2d 166,32 Wis. 2d 132
• Parties: Florence BEAUDOIN et al., Appellants, v. WATERTOWN MEMORIAL HOSPITAL, a Wis. corporation et al., Respondents.
• Court: Wisconsin Supreme Court

Page 166

145 N.W.2d 166

32 Wis.2d 132

Florence BEAUDOIN et al., Appellants, v.WATERTOWN MEMORIAL HOSPITAL, a Wis. corporation et al., Respondents.

Supreme Court of Wisconsin.

Oct. 4, 1966.

Robert J. Shier, Watertown, for appellants.

John F. Jenswold, Madison, for Watertown Memorial Hospital.

Lowry, Hunter & Tikalsky, Waukesha, for Dr. Claude.

BEILFUSS, Justice.

In the trial court and here, the plaintiffs concede that without the benefit of the doctrine of res ipsa loquitur the proof in the record is insufficient to warrant a finding of causal negligence against either of the defendants, the doctor or the hospital.The single issue before us is whether the plaintiffs are entitled to the benefit of the doctrine of res ipsa loquitur.

Before discussing the issue it should be noted that the trial court granted the motion of both defendants for a nonsuit.In passing on a motion for nonsuitthe court must construe the evidence in the light most favorable to the plaintiff and must give the plaintiff the benefit of favorable inferences that can reasonably be deduced from the credible evidence.If the credible evidence most favorable to plaintiff, or any reasonable inference drawn therefrom, is such that under any reasonable view the trier of the fact could find facts sufficient to constitute a cause of action, the motion for nonsuit should be denied.¹

This court is committed to the principle that the doctrine of res ipsa loquitur is available in the trial of medical malpractice cases in some instances.

In Fehrman v. Smirl(1963), 20 Wis.2d 1, 22, 121 N.W.2d 255, 266, 122 N.W.2d 439, the court overruled prior cases² which refused to extend the doctrine to medical malpractice cases and adopted the general rule as follows:

'* * * The general rule is that the doctrine of res ipsa loquitur may be invoked in medical malpractice actions only where a layman is able to say as a matter of common knowledge that the consequences of the professional treatment are not those which ordinarily result if due care is exercised, and that the doctrine is not applicable when expert medical testimony is required to show negligence on the part of the practitioner.Anno. 82 A.L.R. (2d) 1262, 1274.Those situations in which common knowledge of laymen has afforded a proper basis for invoking res ipsa loquitur in medical malpractice actions are summarized in Prosser, Law of Torts (2d ed.), pp. 210, 211, § 42, as follows:

"There are, however, some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care.When an operation leaves a sponge in the patient's interior, or removes or injures an inappropriate part of his anatomy, or when a tooth is dropped down his windpipe, or he suffers a serious burn from a hot water bottle, or when instruments are not sterilized, the thing speaks for itself without the aid of any expert's advice."³

The trial court was of the opinion that the plaintiff had not identified the instrumentality or the agent that had caused her burns, and that because of the possibilities suggested by the evidence, such as a hot instrument, an allergy, diabetes, high blood pressure, or a soap solution used for cleansing purposes, the jury could only speculate as to causal negligence.

In this instance the evidence is undisputed that plaintiff did not have the blisters or burns before the operation.She was under the complete control of the doctor and the hospital from the time she left her room until the burns were discovered.She was given an anesthetic, was unconscious, and had no way of knowing what transpired during this period.The defendants had complete control of her body and the procedures, instruments, and agents that were used.

We are clearly of the opinion that a layman is able to conclude as a matter of common knowledge that blisters in the nature of second-degree burns in an areanot directly related to the operative procedures do not ordinarily result if due care is exercised.

The fact that other possibilities are suggested by the evidence is not sufficient to take away from the plaintiffs the benefit of the doctrine of res ipsa loquitur.

While this case only involves a trial at the nonsuit stage, it is very similar in facts and underlying policy to Ybarra v. Spangard(1944), 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258.In that casethe plaintiff received a traumatic shoulder injury while under anesthesia during an appendectomy.In Prosser, Law of Torts (Hornbook Series, 3d ed.), p. 228, sec. 39, we find the following language explaining the rationale of the Ybarra Case:

'* * * (In Ybarra) res ipsa loquitur was applied against all of the doctors and hospital employees connected with the operation, although it seemed quite clear that not all of them could have been responsible.The basis of the decision appears quite definitely to have been the special responsibility for the plaintiff's safety undertaken by everyone concerned.Again there is obviously a deliberate policy, similar to that found in the carrier cases, which requires the defendants to explain or pay, and goes beyond any reasonable inference from the facts; and one may surmise that this is not unconnected with the refusal of the medical profession to testify against one another.'

Thus, in certain res ipsa loquitur cases for medical malpractice, plaintiffs will be relieved of the almost impossible onus of having to identify the precise instrumentality which caused the injury.

It must be emphasized that denial of the defendants' motion for nonsuit hardly means that plaintiffs have won the case.In Wisconsin the procedural effect of res ipsa loquitur is that of a permissible inference--the jury is merely permitted to draw a reasonable inference from circumstantial evidence.Fehrman v. Smirl, supra.Prosser, Law of Torts (hornbook Series, 3d ed.), p. 233, sec. 40, ably explains this procedural effect:

'* * * This means that the inference of negligence to be drawn from the circumstances is left to the jury.They are permitted, but not compelled to find it.The plaintiff escapes a nonsuit, or a dismissal of his case, since there is sufficient evidence to go to the...