Chapnitsky v. McClone
| Decision Date | 28 June 1963 |
| Citation | 20 Wis.2d 453,122 N.W.2d 400 |
| Parties | Boris CHAPNITSKY, Appellant, v. Ralph J. McCLONE et al., Respondents. |
| Court | Wisconsin Supreme Court |
L. H. Chudacoff, Appleton, Dudley O. Emmert, Manitowoc, for appellant.
Everson, Whitney, O'Melia & Everson, Green Bay for Kunitz and Iowa National Mut. Ins. Co.
Benton, Bosser, Fulton, Menn & Nehs, Appleton, for McClone and Aetna Cas. & Surety Co.
Plaintiff appellant contends on this appeal that he is entitled to a new trial because the circuit court committed prejudicial error in these respects:
(1) In admitting in evidence hospital records and X-rays without proper authentication as prescribed by sec. 327.25, Stats., 1961.
(2) In sustaining objections to two questions put to Dr. Marshall, plaintiff's medical expert, during redirect examination.
(3) In submitting Question No. 5 of the special verdict.
(4) In framing Question No. 6 of the special verdict in such manner that the jury was directed not to answer the subdivisions thereof so as to find damages if it answered Question No. 5 'No.'
(5) In giving a 'but for' instruction on causation in that portion of the charge to the jury relating to Question No. 5 of the special verdict.
Plaintiff further requests that this court grant a new trial in the interest of justice under sec. 251.09, Stats., if it concludes that one cannot be awarded on the basis of prejudicial error.
On direct examination, Dr. Marshall expressed a medical opinion highly favorable to plaintiff. Upon cross-examination he conceded that one of the bases for this opinion was his clinical knowledge of plaintiff. He also admitted that this clinical knowledge was partly gained from the hospital records covering plaintiff's various hospitalizations from 1953 through 1961 and also from various X-rays taken of plaintiff's leg from 1953 through the accident of March 16, 1959. By stipulation and testimony it was established that these were the hospital records and X-rays of plaintiff but, except for notations on these records signed by Dr. Marshall and corroborated by him, none of the other persons who had made entries in the records, or had actually taken the X-rays, were called as authenticating witnesses.
After the conclusion of the cross-examination of Dr. Marshall defendants offered the hospital records and X-rays in evidence. Plaintiff objected on the ground that they had not been properly authenticated. The trial court admitted them for the limited purpose of the cross-examination of Dr. Marshall and for the use of defendants' medical experts in giving their testimony but ruled that such hospital records and X-rays would not be permitted to go to the jury. Defendants' medical experts, Drs. Kaufman and Nellen, did rely on these hospital records and X-rays in giving opinion testimony adverse to plaintiff. Therefore, if the trial court erred in permitting this use of them, such error was prejudicial. However, we find no error.
Plaintiff relies upon our decision in Rupp v. Travelers Indemnity Co. (1962), 17 Wis.2d 16, 115 N.W.2d 612, which is succinctly summarized in headnote 1 as follows:
'The supreme court cannot interpret sec. 327.25, Stats., relating to the admissibility in evidence of entries made in the usual course of business, no matter how liberally, so as to excise from the statute the express requirement therein that entries must be identified by the testimony of the entrants if it is not shown that they are beyond the jurisdiction of the court or are insane.'
Nevertheless, the Rupp decision did not repudiate the rule of Sundquist v. Madison Rys. Co. (1928), 197 Wis. 83, 221 N.W. 392, but instead expressly distinguished it. In the Sundquist Case, objection was made to the testimony of plaintiff's medical expert, in giving a diagnosis which was partially based upon a report of the results of examinations made by hospital technicians, because these technicians were not called as witnesses and their reports were not received in evidence. This court upheld the trial court's overruling the objection and stated (at p. 87, 221 N.W. at p. 393):
In Rupp we commented upon the holding in the Sundquist Case as follows (at p. 20, 115 N.W.2d at p. 615):
'Underlying this decision is the concept [that] the hospital records, although hearsay, were trustworthy as a basis for a medical conclusion because one in a position to know accepted and relied upon them in the important daily affairs of mankind.'
Thus there is no question concerning the propriety of Dr. Marshall's basing his medical opinion upon his clinical knowledge obtained in part from the hospital records and X-rays in question even though they were hearsay in the absence of the authenticating testimony required by sec. 327.25, Stats., 1961. It is also obvious that defendants' counsel could properly use them for the purpose of cross-examining Dr. Marshall. The closer question is whether it was proper to admit them for the further limited purpose of permitting defendants' medical experts to base their opinion testimony on them. None of the briefs submitted cite any authority on this precise point. Surprisingly, independent research on our part has also failed to unearth a single case passing on this question. The preservation of the spirit of fair play inherent in our adversary system of trying lawsuits seems to us to lead to but one conclusion: If plaintiff's medical expert has relied on hospital record entries and X-rays not in evidence in testifying to a diagnosis or medical opinion, then defendants' medical experts should be accorded the same privilege. Therefore, we approve the challenged ruling of the trial court.
On direct examination, Dr. Marshall was asked about 'the significance of the prior 1953 injury as reflected in the condition [of plaintiff] as of March 16, 1959.' He replied that the 1953 fracture 'had certainly healed' and '[t]here was no evidence of activity of any infection which had been present prior to even 1957 * * *' He was asked to express his opinion based on reasonable medical probabilities 'whether, but for this accident of March 16, 1959, the amputation would have been necessary.' His answer was, 'My opinion is that the accident as given to me, of what occurred, including my subsequent findings--my opinion is that amputation would not have occurred in this extremity except for the accident of March 16, 1959.'
On cross-examination Dr. Marshall was questioned in detail concerning plaintiff's medical history from the time of the 1953 accident up to and beyond the accident of March 16, 1959. Then on redirect examination the witness was asked these two questions:
Defendants' counsel objected to both questions on the ground that they invaded the province of the jury. The trial court sustained the objections to both questions. Plaintiff contends this ruling constituted prejudicial error. The questions were not objectionable on that ground. This same issue was recently before us in Fehrman v. Smirl, 20 Wis.2d 1, 18, 121 N.W.2d 255, 264, and we therein stated:
Nevertheless, we find no prejudice as a result of the trial court's sustaining these objections since Dr. Marshall had voiced his opinion on direct examination with respect to the same issue which these two questions sought to raise on redirect examination. Furthermore, the form of the first of these two questions was objectionable because the relevancy inquired about was not connected to any particular point at issue in the case.
SUBMISSION OF QUESTION NO. 5 OF THE VERDICT
When the trial court submitted the proposed form of the special verdict to counsel, plaintiff's counsel objected to the inclusion of Question 5. By his motions after verdict, plaintiff also assigned the submission of this question as one of the grounds for a new trial. The basis for his objections to this question is that it constitutes an improper cross-examination of the jury. Nevertheless, the issue of whether the accident of March 16, 1959, caused the amputation of plaintiff's leg was in no sense evidentiary but rather one of ultimate fact. Aside from the questions of negligence, it was the single critical issue in the case. All of the medical expert opinion evidence was directed to it. In such a situation it was proper for such a question...
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