Cramer v. Theda Clark Memorial Hospital

• Decision Date: 02 December 1969
• Docket Number: No. 160,160
• Citation: 172 N.W.2d 427,45 Wis.2d 147
• Parties: , 40 A.L.R.3d 509 Henry C. CRAMER, Appellant, v. THEDA CLARK MEMORIAL HOSPITAL, a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 427

172 N.W.2d 427

45 Wis.2d 147, 40 A.L.R.3d 509

Henry C. CRAMER, Appellant, v. THEDA CLARK MEMORIAL HOSPITAL, a Wis. corporation, Respondent.

No. 160.

Supreme Court of Wisconsin.

Dec. 2, 1969.

Rehearing Denied Feb. 3, 1970.

Henry C. Cramer entered the Theda Clark Memorial Hospital on August 30 1965, for an abdominal operation to replace a major artery with an artificial one; the operation was performed the following day. After the operation, Cramer was placed in the intensive-care unit of the hospital.

At approximately 5:15 p.m. on September 6, 1965, the plaintiff was in cloth restraints when a nurse brought him his supper on a hospital tray. She untied the restraint on his right arm, placed the tray in front of him, watched him eat for a short period and then left the room. Sometime after she left the room, Cramer apparently undid his left restraint, pushed his supper tray out of the way and, as both side bedrails were up, slid off the foot of his bed. Upon reaching the floor he attempted to stand but fell, fracturing his right hip.

Cramer sued the hospital, alleging it was negligent in several respects. The case was tried to a jury. However, Cramer did not introduce any expert evidence relating to a standard of care of hospitals generally in the area under similar circumstances and at the close of all the testimony, the court directed a verdict in favor of the hospital dismissing Cramer's complaint upon its merits. From the judgment, Cramer appeals.

Schaller & Giese, Edmund P. Arpin, Neenah, for appellant.

Fulton, Menn & Nehs, Appleton, Peter S. Nelson, Appleton, of counsel, for respondent.

HALLOWS, Chief Justice.

In his decision granting the directed verdict, the trial judge was of the view the plaintiff was required to produce expert evidence to establish a standard of care for hospitals in the same area. Over the plaintiff's objection, the defendant offered some expert opinions of the care in other hospitals. The issue is now presented whether the alleged negligence and standard of care of a hospital must, like in malpractice cases, be proved by expert testimony.

Courts generally make a distinction between medical care and custodial or routine hospital care. The general rule is that a hospital must in the care of its patients exercise such ordinary care and attention for their safety as their mental and physical condition, known or should have been known, may require. This rule is the subject of W.J.I.--Civil #1385, but the words 'reasonable care' used therein should be understood to mean ordinary care. If the patient requires professional nursing or professional hospital care, then expert testimony as to the standard of that type of care is necessary. This is usually done by establishing the care given in similar circumstances by hospitals in the area. But it does not folllow that the standard of all care and attention rendered by nurses or by a hospital to its patients necessarily require proof by expert testimony. See Annot., 70 A.L.R.2d 377. The standard of nonmedical, administrative, ministerial or routine care in a hospital need not be established by expert testimony because the jury is competent from its own experience to determine and apply such a reasonable-care standard. We have today in Schuster v. St. Vincent Hospital, etc. (1969), Wis., 172 N.W.2d 421, pointed out that ordinary care and reasonable care are identical in hospital cases. What an ordinarily prudent hospital or employee-nurse would do under any circumstances is the standard of ordinary care and therefore reasonable.

This court has long distinguished between matters of common knowledge and those needing expert testimony to explain and has held that expert testimony should be adduced concerning matters involving special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of mankind, and which require special learning, study, or experience. Pollock v. Pollock (1956), 273 Wis. 233, 246, 77 N.W.2d 485; Hamann v. Milwaukee Bridge Co. (1906), 127 Wis. 550, 565, 106 N.W. 1081; Jacobson v. Greyhound Corp. (1965), 29 Wis.2d 55, 63, 138 N.W.2d 133. While trial courts have discretion in admitting opinion evidence of experts, the principal rule has been stated to be 'whether the members of the jury having that knowledge and general experience common to every member of the community would be aided in a consideration of the issues by the testimony offered and received.' Anderson v. Eggert (1940), 234 Wis. 348, 361, 291 N.W. 365, 370; see also Kreyer v. Farmers' Co-operative Lumber Co. (1962), 18 Wis.2d 67, 75, 117 N.W.2d 646, and Schmidt v. Chapman (1964), 26 Wis.2d 11, 25, 131 N.W.2d 689. McCormick, in his book on Evidence, pp. 28, 29, sec. 13, states the rule:

'First, the subject of the inference must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman, and second, the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.'

Consequently, if the court or jury is able to draw its own conclusions without the assistance of an expert opinion, the admission of such testimony is not only unnecessary but improper. Casson v. Schoenfeld (1918), 166 Wis. 401, 415, 166 N.W. 23, L.R.A. 1918C, 162; Bruss v. Milwaukee Sporting Goods Co. (1967), 34 Wis.2d 688, 150 N.W.2d 337; Kreklow v. Miller (1967), 37 Wis.2d 12, 154 N.W.2d 243.

The question in this case is whether expert testimony would aid the trier of the facts in determining whether the hospital was in fact negligent as alleged. By way of analogy, this court has held expert testimony to be required to assist the court or jury to understand complex issues in the following situations: To determine whether medical or dental treatment is necessary to effect a cure or to promote healing, Wisconsin Telephone Co. v. Industrial Comm. (1953), 263 Wis. 380, 57 N.W.2d 334; on the permanency of an injury, Borowske v. Integrity Mut. Ins. Co. (1963), 20 Wis.2d 93, 101, 121 N.W.2d 287; Lubner v. Peerless Ins. Co. (1963), 19 Wis.2d 364, 370, 120 N.W.2d 54; Rogers v. Adams (1963), 19 Wis.2d 141, 146, 119 N.W.2d 349; whether pain will continue in the future; and if so, for how long a period of time, Huss v. Vande Hey (1965), 29 Wis.2d 34, 39, 138 N.W.2d 192; Rivera v. Wollin (1966), 30 Wis.2d 305, 140 N.W.2d 748; whether future medical expenses will be incurred, Sawdey v. Schwenk (1958), 2 Wis.2d 532, 537, 87 N.W.2d 500, 69 A.L.R.2d 1256; whether a fall occurred because of a prior leg injury, Globe Steele Tubes Co. v. Industrial Comm. (1947), 251 Wis. 495, 497, 29 N.W.2d 510; whether a piece of bone entered the bloodstream, and whether that formed a blood clot which entered the patient's lung, Behr v. Larson (1957), 275 Wis. 620, 627, 83 N.W.2d 157; whether a driver's conduct after an injury was caused by shock, Odya v. Quade...