Butzow v. Wausau Memorial Hospital

• Decision Date: 02 June 1971
• Docket Number: No. 278,278
• Citation: 51 Wis.2d 281,187 N.W.2d 349
• Parties: Julia G. BUTZOW, Plaintiff-Appellant, v. WAUSAU MEMORIAL HOSPITAL, a Wisconsin corporation et al., Defendant-Respondents.
• Court: Wisconsin Supreme Court

Page 349

187 N.W.2d 349

51 Wis.2d 281

Julia G. BUTZOW, Plaintiff-Appellant, v. WAUSAU MEMORIAL HOSPITAL, a Wisconsin corporation et al Defendant-Respondents.

No. 278.

Supreme Court of Wisconsin.

June 2, 1971.

This appeal is by the plaintiff Julia G. Butzow from an order sustaining a demurrer to her complaint on the ground she improperly joined two causes of action. In the first cause of action she alleges she broke her hip on September 25, 1969, when she slipped on a poorly-maintained sidewalk as she was entering an A&P store in the City of Phillips, Price county. The City of Phillips, the owner of the building Ida Soliday, and the Great Atlantic & Pacific Tea Company, the lessee of the building, are joined as defendants upon the theory they are jointly and severally liable for the condition of the sidewalk. The cause of action alleges that because of her fall on the sidewalk it was necessary for her to be hospitalized in the Wausau Memorial Hospital in Marathon county and while there she either crawled or fell out of bed twice as a result of the negligence of the hospital in caring for her. It is alleged the damages and injuries from the two sources of negligence are inseparable as a practical matter and the injury resulting from the negligence of the hospital was a foreseeable consequence of the medical and hospital care required as the result of the fall of September 25, 1969. Consequently, her demand for damages on this cause of action is for all her damages from both sources of negligence.

In her second cause of action against the Wausau Memorial Hospital she alleges its negligence in caring for her and that as a result of her falls from the hospital bed her fractured hip had to be reset and repinned. It is alleged the hospital is liable jointly and severally with the defendants of the first cause of action, not only for its aggravation of the prior injury but also for the damages of the initial injury as well.

The action was commenced in Marathon county. The trial court held the complaint asserted two causes of action against different defendants and they could not be joined under sec. 263.04, Stats., because they required different places of trial, and granted a change of venue of the first cause of action to Price county.

Tinkham, Smith, Bliss & Patterson, Wausau, for appellant.

Peickert, Anderson, Fisher, Shannon & O'Brien, Stevens Point, for respondent hospital.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, for respondent city of Phillips.

O'Melia & Kaye, Rhinelander, for respondent Ida Soliday.

HALLOWS, Chief Justice.

Normally, the proper venue of the first cause of action is Price county where the fall on the sidewalk occurred and all the defendants resided, sec. 261.01(12), Stats.; and the proper venue for the action for malpractice against the Wausau Memorial Hospital is Marathon county, the principal place of business of the hospital, sec. 261.01(6), Stats. consequently if sec. 263.04, Stats., ¹ is applicable, these two causes of action cannot be joined because they require different places of trial.

The appellant argues the venue statute is not applicable to this joinder because the accident tortfeasors and the malpractice tortfeasor have a joint liability for the total indivisible damages of the injured plaintiff and this requires a joint trial against all the tortfeasors to avoid multiple trials and inconsistent verdicts. We think not.

The joinder of causes of action in this state is statutory and governed by sec. 263.04, Stats. As stated in Caygill v. Ipsen (1965), 27 Wis.2d 578, 135 N.W.2d 284, at common law joinder was permitted only between joint tortfeasors, and that term was restricted to those tortfeasors who acted in concert. See also Prosser on Torts (3rd ed.), Joinder of Defendants, pp. 260, 266, sec. 44. Independent tortfeasors whose negligence combined to cause an injury had to be sued separately even though each might be liable for the entire loss. However, under the more liberal American rules relating to joinder, defendants whose negligence concurs to produce thereafter an injury have been joined in one cause of action. This is typified by the ordinary automobile-collision case between two automobiles causing injury to a passenger. By loose language we call these defendants 'joint tortfeasors.'

In the instant case we are not dealing with such joint tortfeasors but successive tortfeasors whose negligence did not combine concurrently but sequentially in time to cause injury. The present case is one where a subsequent tortfeasor aggravates a pre-existing injury caused by the negligence of a prior tortfeasor.

It is essential to distinguish between joinder of causes of action and joinder of joint defendants in one cause of action. We point out tortfeasors do not become joint tortfeasors because their liability may be co-extensive and in that sense there is joint liability. It is quite true an original tortfeasor may also be liable for the malpractice of a subsequent-tortfeasor doctor for the total damages suffered by the injured person. But this doctrine is concerned solely with the scope of the liability of the original tortfeasor and does not involve or necessitate a joinder of causes of action or a joinder of defendants. The principle that a tortfeasor is liable for the consequences of negligence of a physician whose treatment aggravated the original injury is based upon the reasoning 'that the additional harm is either (1) a part of the original injury, (2) the natural and probable consequence of the tortfeasor's original negligence, or (3) the normal incidence of medical care necessitated by the tortfeasor's original negligence.' 22 Am.Jur.2d, Damages, p. 165, sec. 113; Annot. (1965), Torts--Negligent Treatment of Injury, 100 A.L.R.2d 808.

The rule is broadly stated in Restatement, Torts 2d, p. 496, sec. 457, as follows:

'Additional Harm Resulting From Efforts to Mitigate Harm Caused by Negligence

If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.'

In the comment thereto it is plain the rule applies to additional harm from hospital or medical treatment and seems to be put on the basis of public policy to determine where the line of causation should end. See also Restatement, Torts 2d, p. 478, sec. 447, Negligence of Intervening Acts. We think the rule applies to hospital care as well as medical care and covers this case.

This doctrine was adopted by Wisconsin in Selleck v. Janesville (1898), 100 Wis. 157, 75 N.W. 975, 41 L.R.A. 563, a defective sidewalk case, and the court said that if the injured person used ordinary care in selecting his doctor he was not responsible for the doctor's mistake in treating his injury but the original tortfeasor was. The rule of this case was followed on the second appeal in Selleck v. Janesville (1899), 104 Wis. 570, 80 N.W. 944, 47 L.R.A. 691, and applied in Pawlak v. Hayes (1916), 162 Wis. 503, 156 N.W. 464, where an employer was held liable for the malpractice of a physician when the physician's negligence occurred within 90 days after the original injury to the employee and resulted in an aggravation thereof. The theory of this liability was based on foreseeability as a basis for causation. This ground for enlarging the scope of the original tortfeasor's liability is no longer viable in Wisconsin because foreseeability is now an element of negligence and not of causation. Osborne v. Montgomery (1931), 203 Wis. 223, 234 N.W. 372; Pfeifer v. Std. Gateway Theater (1952), 262 Wis. 229, 55 N.W.2d 29.

Doctors were also liable independently for the results of their own negligence and the doctrine was applied to give them the is liable for the entire damage. * * * the original tortfeasor to the injured party. In Hooyman v. Reeve (1919), 168 Wis. 420, 170 N.W. 282, in a suit against the doctor, the court construed the release given by the injured employee to the employer to be broad enough to include the damage done by the doctor for which the original tortfeasor was liable. Likewise in Retelle v. Sullivan (1927), 191 Wis. 576, 211 N.W. 756, the release given by the injured party to the original tortfeasor was found broad enough to cover the element of damage due to the doctor's negligence.

None of these cases involved the joinder of the doctor with the original tortfeasor either in one cause of action or the joinder of separate causes of action. The original tortfeasor and the subsequent negligent doctor, even though his negligence aggravates the original injury, are not joint tortfeasors although they may have a joint liability in part; such joint liability does not give rise to any right of contribution. In Fisher v. Milwaukee E.R. & L. Co. (1920), 173 Wis. 57, 180 N.W. 269, the original tortfeasor who was sued for the damages including the aggravation done by the malpractice of the doctor was allowed to implead the doctor on a cross-complaint on the theory...