Ehlinger by Ehlinger v. Sipes
| Decision Date | 02 May 1990 |
| Docket Number | No. 88-0806,88-0806 |
| Citation | 454 N.W.2d 754,155 Wis.2d 1 |
| Parties | Kurt EHLINGER and Cory Ehlinger, Minors, By Their Guardian Ad Litem; Larry EHLINGER and Carol Ehlinger, Plaintiffs-Appellants, v. Donald R. SIPES, M.D., Edward G. Vogel, M.D., Bay West Gynecology and Obstetrics, Ltd., Wisconsin Patients Compensation Fund, and John Doe Insurance Companies, Defendants-Respondents-Petitioners. |
| Court | Wisconsin Supreme Court |
Peter J. Hickey (argued), Mary E. Murphy and Everson, Whitney, Everson and Brehm, S.C., Green Bay, on briefs, for defendants-respondents-petitioners.
Robert A. Slattery (argued), D. Sean O'Lochlayne and Slattery & Hausman, Ltd., Milwaukee; and Lynn Carey and Peck & Carey, S.C., Oconomowoc, on brief, for plaintiffs-appellants-respondents.
This is a review of that part of the decision of the court of appeals, Ehlinger v. Sipes, 148 Wis.2d 260, 434 N.W.2d 825 (Ct.App.1988), which reversed the judgment of the circuit court for Oconto county, the Honorable Robert O. Weisel, Reserve Judge, presiding, dismissing the Ehlingers' action against Dr. Sipes and Bay West Gynecology and Obstetrics, Ltd., for insufficiency of the evidence at the close of Plaintiffs' case. The Ehlingers' action against Dr. Vogel was also dismissed by the circuit court and on the same basis. The court of appeals affirmed that part of the circuit court's decision and that ruling is not challenged in this court. The question is whether the Ehlingers produced sufficient evidence from which the trier of fact could determine that Dr. Sipes' alleged negligence in failing to diagnose Mrs. Ehlinger's multiple pregnancy was a substantial factor in causing the injuries her twin children, Kurt and Cory, subsequently suffered as a result of being born prematurely. At trial, an expert witness called by the Ehlingers testified that Dr. Sipes' failure to diagnose that Mrs. Ehlinger was carrying twins constituted negligence and was a "substantial contributing factor" in causing the twins' injuries. The expert further testified that Dr. Sipes' negligence deprived Mrs. Ehlinger of the opportunity to receive treatment to prolong her pregnancy and thus deprived her of the chance that the children could have been healthier. We conclude the expert's testimony was sufficient to present the causation question to the trier of fact.
Mrs. Ehlinger gave birth to Kurt and Cory on June 12, 1978. The twins were born prematurely after only thirty-two weeks of gestation. As a result of their premature births, Kurt suffers from spastic quadriplegia and Cory suffers from a severe hearing loss with related speech difficulties. The Ehlingers allege the injuries to Kurt and Cory were the result of Dr. Sipes' negligent failure to diagnose the twin pregnancy and to take measures to prevent premature delivery, allegedly a common complication in cases of multiple pregnancy.
Mrs. Ehlinger had previously been under Dr. Sipes' care while pregnant in 1975. The earlier pregnancy was carried full-term and Mrs. Ehlinger gave birth to a normal, healthy child. Mrs. Ehlinger testified at trial that during the course of her second pregnancy, several factors led her to suspect she might be carrying twins. Mrs. Ehlinger stated that she felt more fatigued, suffered from back pains, felt "life" earlier, and was noticeably larger and heavier than during her first pregnancy. Mrs. Ehlinger testified that she related these symptoms to Dr. Sipes and even directly asked him if it was possible she was carrying twins. Mrs. Ehlinger stated that Dr. Sipes "did not take her seriously" and told her not to worry. Nor did Dr. Sipes perform an ultrasound examination which, the Ehlingers allege, would have revealed the multiple pregnancy. It was not realized that Mrs. Ehlinger was carrying twins until she gave birth to the two children.
Dr. Sipes denies that his failure to diagnose Mrs. Ehlinger's multiple pregnancy constituted negligence or was a cause of Kurt's and Cory's injuries. Dr. Sipes was called as an adverse witness at trial and he acknowledged the importance of properly diagnosing a multiple pregnancy and that a multiple pregnancy is by definition high risk. Dr. Sipes conceded that in a multiple pregnancy the likelihood of premature birth is increased and that as a result a different course of treatment is instituted towards preventing premature delivery, including warning the patient of the possibility of premature delivery, more frequent examinations, being certain of adequate nutrition, use of prophylactics, decreasing physical and emotional stress, bedrest, decreasing intercourse, and bringing the patient to the hospital earlier. Dr. Sipes further conceded that the injuries to Kurt and Cory were the result of their being born prematurely.
On the issue of causation, Dr. Bernard M. Nathanson, M.D., testified on the Ehlingers' behalf in part as follows:
Q Doctor, let me ask you this: Do you have an opinion to a reasonable degree of medical probability as to whether or not the failure of Dr. Sipes to diagnose twins in this case was a substantial contributing factor in causing the premature labor and delivery that ultimately ensued?
A Yes, I do.
Q What is that opinion?
A My opinion is that it was.
Q Could you explain that to the Court and jury, please.
A Yes. Had Dr. Sipes made the diagnosis of twins in a timely manner that should have been made, then certain measures could have been taken to prevent the premature labor and delivery, as the Williams textbook stated as one of the aims of care in multiple pregnancy.
And I conclude here such things as bedrest, putting the patient to bed by at least the 30th week, reducing her activity accordingly. And these measures would at least have given her a chance at prolonging this pregnancy. Of course, with each day, with each week a pregnancy is prolonged in the premature area, the chances of the baby being healthier, [sic] surviving are increased.
At the close of Plaintiffs' case, Dr. Sipes moved to dismiss on the basis the Ehlingers failed to produce sufficient evidence from which the trier of fact could determine that Dr. Sipes' alleged negligence caused Kurt's and Cory's injuries. The circuit court granted the motion, concluding the Ehlingers failed to produce any evidence that had the multiple pregnancy been diagnosed by Dr. Sipes and proper treatment rendered, the injuries the twins suffered more probably than not would have been lessened or avoided. Dr. Nathanson's testimony was insufficient to establish causation, the circuit court reasoned, because Wisconsin law does not compensate for a mere "lost chance."
The Ehlingers appealed. The court of appeals, on the basis of sec. 323(a) Restatement (Second) of Torts, reversed and remanded the case for a new trial. Section 323(a) provides Negligent Performance of Undertaking to Render Services. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm....
The court of appeals concluded that Dr. Nathanson's testimony provided sufficient evidence from which the trier of fact could determine that Dr. Sipes' alleged negligence had "increased the risk" that the premature births and resulting injuries would occur. Ehlinger, 148 Wis.2d at 268-69, 434 N.W.2d 825. The court of appeals held that the question of whether the increased risk was a substantial factor in causing Kurt's and Cory's injuries was then for the trier of fact to resolve. Id. at 269, 434 N.W.2d 825.
Dr. Sipes petitioned this court for review, which was granted. We conclude that the Ehlingers produced sufficient evidence to present to the trier of fact the question of whether Dr. Sipes' alleged negligence was a substantial factor in causing Kurt's and Cory's injuries. We disagree, however, with the court of appeals' interpretation of sec. 323(a). Thus, on the issue reviewed, we reach the same conclusion as the court of appeals, though on a different basis, and accordingly we affirm.
The "increased risk" theory the court of appeals followed in this case is one of several approaches jurisdictions have taken in attempting to address the causation problem presented here. See generally Perdue, Recovery for a Lost Chance of Survival: When the Doctor Gambles, Who Puts Up the Stakes?, 28 South Texas Law Review 37, 45-46 (1987); Andel, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepperdine Law Review 973, 978 (1985).
Several jurisdictions have taken the approach that in order to present the causation question to the trier of fact, the plaintiff need only introduce evidence that the defendant's negligence deprived the plaintiff of a "substantial possibility" of avoiding or lessening the harm. See, e.g., Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984); Daniels v. Hadley Memorial Hospital, 566 F.2d 749 (D.C.Cir.1977); Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970); Hicks v. United States, 368 F.2d 626 (4th Cir.1966). In Roberson, the court stated:
The question of causation in cases involving negligent treatment of a potentially fatal condition ... is generally a matter to be determined by the finder of fact where the evidence has established the patient had an appreciable chance to survive if given proper treatment. In making the determination, the finder of fact should take into account both the patient's chances of survival if properly treated and the extent to which the patient's chances of survival have been reduced by the claimed negligence.
Roberson, 686 P.2d at 159. In Hicks, the court stated the rationale for the "substantial possibility" approach as follows:
If there was any substantial possibility of...
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