Burnside v. Evangelical Deaconess Hospital

• Decision Date: 31 March 1970
• Docket Number: No. 187,187
• Citation: 175 N.W.2d 230,46 Wis.2d 519
• Parties: Daniel N. BURNSIDE Appellant, v. EVANGELICAL DEACONESS HOSPITAL, Dr. Jack D. Spankus, Dr. Raymond Chi-Ta-Tse, Dr. R. R. Brazy, Respondents.
• Court: Wisconsin Supreme Court

Page 230

175 N.W.2d 230

46 Wis.2d 519

Daniel N. BURNSIDE Appellant, v. EVANGELICAL DEACONESS HOSPITAL, Dr. Jack D. Spankus, Dr Raymond Chi-Ta-Tse, Dr. R. R. Brazy, Respondents.

No. 187.

Supreme Court of Wisconsin.

March 31, 1970.

Daniel N. Burnside commenced this action against the Evangelical Deaconess Hospital, Dr. Jack D. Spankus, Dr. Raymond Chi-Ta Tse and Dr. R. R. Brazy, for alleged malpractice in the performance of a laminectomy and discectomy and a catheterization. At the conclusion of the plaintiff's case the court granted the defendants' motion for a directed verdict. From the judgment dismissing the complaint, Burnside appeals.

John A. Udovc, Milwaukee, for appellant.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, for respondents; Donald R. Peterson, Milwaukee, of counsel.

HALLOWS, Chief Justice.

Burnside, 35 years old and a machinist for 15 years, first experienced pain in his back in 1951 and has had continual back trouble since 1955. In the spring of 1966 he consulted several doctors but treatment failed to relieve the pain. In September of 1966 he was referred to the defendant Dr. Jack D. Spankus, an orthopedic surgeon who on September 11, 1966, performed a laminectomy and discectomy on a herniated disc between the fourth and fifth lumbar vertebrae. The purpose of this operation was to remove the disc or fragments thereof which were pressing on the nerve root. Instead of being a soft, spongy cushion, Burnside's disc was hardened. When Dr. Spankus finished removing the parts of the disc and before closing the opening he could see no remaining loose pieces of the disc.

Burnside's recovery from the operation for some months was uneventful and satisfactory. On December 15, 1966, he consulted Dr. Spankus and complained that the back and leg pain had resumed and that some two weeks prior he had had flu and a cold. A second laminectomy and disectomy was performed by Dr. Spankus on January 5, 1967. The operative record dictated by Dr. Spankus states that 'an extruded truded disc was found under the L-4 nerve root. Apparently it was a fragment of the previous disc taken out. This fragment under the nerve root was not present at the previous operation.'

Burnside argues the disc fragment removed in the second operation from under the nerve root was left behind in the first operation through negligence of Dr. Spankus. The defense contends a fragmentation of the remaining portion of the degenerated disc occurred subsequent to the first operation and was caused by Burnside's sneezing, coughing, and hacking, when he had the flu; and further, that even if Dr. Spankus had left a fragment upon the completion of the first operation, he was not negligent because he used that degree of skill and care which orthopedic specialists in the Milwaukee area used in such an operation. Burnside's damages which are not in dispute consist of loss of wages, permanent disability in the use of his right foot, numbness, pain, and more frequent urination.

On this appeal from a directed verdict this court must make the assumption the fragment was left behind from the first operation because the evidence must be viewed in the light most favorable to Burnside. Schumacher v. Klabunde (1963), 19 Wis.2d 83, 119 N.W.2d 457; United States Fidelity & Guaranty Co. v. Milwaukee & Suburban Transport Corp. (1962), 18 Wis.2d 1, 117 N.W.2d 708.

When a physician exercises that degree of care, judgment, and skill which physicians in good standing of the same school of medicine usually exercise in the same or similar localities under like or similar circumstances, having due regard to the advanced state of medical science at the time, he has discharged his legal duty to his patient. Ahola v. Sincock (1959), 6 Wis.2d 332, 348, 94 N.W.2d 566; Kuehnemann v. Boyd (1927), 193 Wis. 588, 591, 214 N.W. 326, 215 N.W. 455; Jaeger v. Stratton (1920), 170 Wis. 579, 581, 176 N.W. 61; McManus v. Donlin (1964), 23 Wis.2d 289, 127 N.W.2d 22.

Prior to 1963 the doctrine of res ipsa loquitur was not applicable to medical malpractice cases. In Fehrman v. Smirl (1963), 20 Wis.2d 1, 121 N.W.2d 255, 122 N.W.2d 439, this court overruled prior cases and adopted the general rule that res ipsa loquitur may be invoked in medical malpractice actions when 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. This court also adopted the minority rule that when there is no basis of common Knowledge for such a conclusion, an instruction embodying res ipsa loquitur may be grounded on expert medical testimony. Shurpit v. Brah (1966), 30 Wis.2d 388, 141 N.W.2d 266; Fehrman v. Smirl, supra; see Knief v. Sargent (1968), 40 Wis.2d 4, 161 N.W.2d 232.

Prosser in his Law of Torts, 2d ed., pp. 210, 211, sec. 42, gives examples of situations in which the common knowledge of a layman affords the proper basis for invoking the doctrine such as a sponge left in the patient's interior removal or injury to an inappropriate part of his anatomy, a tooth dropped down his windpipe, a serious burn from a hotwater bottle, or instruments not sterilized. In these situations it is common knowledge the thing speaks for itself and does not need the aid of an expert's opinion.

Is it within the field of common knowledge of laymen that a piece of herniated disc is not ordinarily left unremoved in an operation if due care is exercised by the surgeon performing the laminectomy and discectomy? Or, to put it another way, does common knowledge of lay persons justify the drawing of an inference of negligence from circumstantial evidence?

A herniated-disc operation is performed by the surgeon looking down on top of the back toward the anterior part of the body and with small instruments removing the tiny pieces of bone from each side of a small V-shaped bony bridge in an area about 1/2 inch in diameter to permit a view of the spinal cord and the nerve roots which come out sideways. Then a special retractor, about an eighth of an inch...