Christianson v. Downs

Decision Date27 August 1979
Docket NumberNo. 76-491,76-491
Citation90 Wis.2d 332,279 N.W.2d 918
PartiesLloyd CHRISTIANSON, Marie Christianson, and Wayne H. Rusch as special administrator for Michelle Christianson, Plaintiffs-Appellants, v. Dr. David Ross DOWNS, Defendant-Respondent.
CourtWisconsin Supreme Court

Schlotthauer, Johnson & Mohs, MacDonald & Widder, Madison, on brief; Conrad H. Johnson, Madison, (argued), for plaintiffs-appellants.

Carroll Metzner (argued) and Bell, Metzner & Seibold, S. C., Madison, on brief, for defendant-respondent.


The appeal is from a judgment dismissing on the merits the action by the parents and special administrator of Michelle Christianson for her wrongful death from measles complicated by encephalitis and for her pain and suffering prior to her death. The judgment was entered after the court granted the motion of the defendant, Dr. David Ross Downs, for dismissal on the ground of insufficiency of the evidence, pursuant to sec. 805.14(3), Stats. The only issue on appeal is whether the trial court properly dismissed the action for insufficiency of the evidence. We hold that it did.

This action was tried before a jury. At the close of plaintiffs' evidence, the defendant moved for dismissal pursuant to sec. 805.14(3), Stats., which provides:

"Motion at Close of Plaintiff's Evidence. At the close of plaintiff's evidence in trials to the jury, any defendant may move for dismissal on the ground of insufficiency of evidence. If the court determines that the defendant is entitled to dismissal, the court shall state with particularity on the record or in its order of dismissal the grounds upon which the dismissal was granted and shall render judgment against the plaintiff."

As the Judicial Council Committee Note 1974 points out, the motion to dismiss under sec. 805.14(3), Stats., replaces the old motion for involuntary nonsuit, which was functionally equivalent to a motion to dismiss.

The standard for ruling on a motion to dismiss on the ground of insufficiency of the evidence is set out in sec. 805.14(1), Stats.:

"Test of Sufficiency of Evidence. No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party."

This standard is the same as that used to rule on the old motion for involuntary nonsuit. Nelson v. Travelers Insurance Co., 80 Wis.2d 272, 278, 259 N.W.2d 48 (1977); Master Plumbers Limited Mutual Liability Co. v. Cormany & Bird, Inc., 79 Wis.2d 308, 312, 255 N.W.2d 533 (1977). A motion for dismissal for insufficiency of the evidence should not be granted unless there is no credible evidence to support a finding in favor of the plaintiff when all credible evidence and reasonable inferences therefrom are considered in the light most favorable to the plaintiff. This test serves the purpose of preserving a litigant's right to a jury determination of factual disputes. Household Utilities, Inc. v. Andrews Company, Inc., 71 Wis.2d 17, 28, 236 N.W.2d 663 (1976).

Michelle Christianson died on April 26, 1975, at the age of six from measles complicated by encephalitis. Dr. Downs, a Dodgeville, Wisconsin, physician specializing in family practice, was called adversely and testified that he delivered Michelle and her twin brother, Michael, in 1968 and that he was their family physician from birth until the time of Michelle's death.

The record shows that Dr. Downs never saw Michelle during April of 1975. He did, however, twice see Michael that month, on April 12 and 14. At the time of the first visit the boy had a fever and a sore throat. By the second visit he had a measles-like eruption of the skin. Dr. Downs made a note concerning the second visit in Michael's medical chart: "Throat not sore conjunctivae OK." The doctor knew at the time that there were measles in the Dodgeville area and that Michael had not been vaccinated against measles.

Dr. Downs said he did not know at the time he saw Michael whether Michelle had been vaccinated for measles because he did not have her chart in hand. Marie Christianson, mother of the twins and one of the plaintiffs, testified that she had told Dr. Downs that she was worried about Michelle because the girl had not had measles or a measles vaccination. The doctor disputed this testimony, saying that he did not recall any discussion about Michelle and measles on either April 12 or 14.

Dr. Downs never testified concerning what his diagnosis of Michael's condition was on either of the dates he saw him, if in fact he made a diagnosis. He was never asked what his diagnosis was at the time. He did testify that, considering the case in retrospect, he was sure at the time of trial that Michael had had measles when he saw him in April of 1975.

Michelle became ill on April 23, 1975. Her disease progressed rapidly and she was admitted to the hospital on April 26 and died later that day. Dr. Downs did not participate in her admission to the hospital or her treatment while there. There is no death certificate in the record, but the defendant himself testified that Michelle Christianson died as a result of a measles infection.

The plaintiffs called as an expert witness Dr. Conrad Andringa, a pediatrician. In an offer of proof out of the hearing of the jury, he gave this opinion:

"I feel that the girl twin should have received therapy If the brother had measles at that time . . . . if a child has measles those who have close personal contact with that child who have not received immunization should receive gammaglobulin to prevent measles occurring in that child." (Emphasis supplied.)

In his actual testimony, he stated, "I believe that gammaglobulin should have been given to the twin girl if the diagnosis of measles is made to prevent measles in the twin girl."

Dr. Andringa testified that a dose of gammaglobulin would have prevented measles and the resulting encephalitis and that death would then not have occurred. He also said that a person who already has measles cannot be treated except with supportive therapy to help control the symptoms and make the patient more comfortable. He said a doctor has a responsibility to identify other members of a family or contacts who have not had measles. Asked by the court if this would be so if there were no diagnosis of measles, Dr....

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    ...evidence and reasonable inferences therefrom are considered in the light most favorable to the plaintiff." Christianson v. Downs, 90 Wis.2d 332, 334-35, 279 N.W.2d 918 (1979). Although this court has often considered cases involving a physician's allegedly negligent misdiagnosis, it has sel......
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