Fehrman v. Smirl

Decision Date30 April 1963
Citation121 N.W.2d 255,20 Wis.2d 1
PartiesOscar A. FEHRMAN et al., Appellants, v. Warren G. SMIRL, M.D., Respondent.
CourtWisconsin Supreme Court

Herbert L. Mount, Milwaukee, for appellants.

Moore & Moore, Milwaukee, for respondent.

CURRIE, Justice.

Plaintiffs Fehrman first contend that the trial court erred in not changing the answer to Question One of the verdict from 'no' to 'yes,' and in then not answering the unanswered causation question 'yes,' so as to entitle plaintiffs to judgment on the special verdict for the damages found by the jury. Should they not prevail with respect to this contention, they then request a new trial because the trial court erred: (1) in its rulings on evidence, (2) in certain instructions included in the charge to the jury, and (3) in refusing to give an instruction grounded on res ipsa loquitur. In addition to resolving these issues raised by plaintiffs, we have also considered whether this court should exercise its discretion under sec. 251.09, Stats., and grant a new trial in the interest of justice.

Causal Malpractice as a Matter of Law

In order for this court to find that the trial court erred, in not changing the answer to Question One of the special verdict from 'no' to 'yes' and in not answering the causation question 'yes,' we would have to find Dr. Smirl chargeable with malpractice as a matter of law and find that such malpractice caused Fehrman's disability. This we cannot do upon the evidence presented by the record on this appeal. Since plaintiffs have contended that they are entitled to judgment as a matter of law, we have recounted at considerable length, in the preceding statement of facts, a comprehensive synopsis of the evidence which we deem material on this issue. This synopsis of the evidence discloses two theories, advanced by the expert medical testimony, as explanations of the permanent urinary incontinence which Fehrman has sustained.

The first of these conflicting theories, upon which plaintiffs rely, is based upon the testimony of Dr. Trangsrud. This theory holds that the external sphincter was injured either in the performance of the original operation by Dr. Smirl or in the post-operative care given by Drs. Smirl and McDonell for which Dr. Smirl would be liable.

The opposing theory, advanced by Drs. Smirl and McDonell, is that scar tissue formed in the prostatic urethra in the vicinity of the external sphincter, without fault on Dr. Smirl's part, and resulted in such rigidity that the sphincter cannot function. Plaintiffs attack this testimony on two grounds. First, they assert that Drs. Smirl and McDonell were interested rather than unbiased witnesses. Nevertheless, this was a factor to be considered by the jury in passing on their credibility as witnesses. This court cannot deem their testimony so incredible as to afford no support for the jury's answer to the first question of the verdict. Second, plaintiffs point to Dr. Trangsrud's testimony that, by reason of his course of treatment after Fehrman left the care of Drs. Smirl and McDonell, the scarred tissue condition of the prostatic urethra had been cleared up so that a normal sphincter would now be able to function. Plaintiffs contend that this testimony of Dr. Trangsrud must be accepted as a verity. We are disinclined to so hold, however, because it falls within the field of expert testimony which the jury has the option to accept or disregard.

The lack of direct eyewitness testimony that the sphincter was injured during the course of the original operation or post-operative care presents a serious flaw in plaintiffs' theory. Expert, medical-opinion testimony must be relied upon to prove this, but even then the jury is not bound to accept such testimony. Furthermore, there is no direct expert, medical testimony that, if the sphincter was so injured during such time, it could only have occurred through the negligence of Drs. Smirl or McDonell. There is expert medical testimony which will support this inference, but again the jury is not bound to draw such an inference.

The first question of the verdict clearly presented an issue of fact for the jury, and the trial court would have erred had it changed the jury's answer thereto.

Rulings on Evidence

In the course of the cross-examination of Dr. Kearns, plaintiffs' counsel asked this question, 'And is it not also a fact that the sphincter may be damaged by enucleation where it is either fibrous or adhesive and difficult to remove where it is proximate to the sphincter?' An objection was interposed to the question 'as assuming something which was not present in this case,' and the trial court sustained the objection. Prior to this ruling Dr. Trangsrud had testified that he had found that Fehrman's external sphincter had been damaged, that in his opinion the damage to the sphincter was responsible for its present failure to function, and that in his opinion the damage to the sphincter had resulted from the operation and the related manipulations that followed it. Dr. Thompson's deposition had also been read into the record previously. In this deposition Dr. Thompson had stated that the verumontanum, which lies between the bladder neck and the external sphincter, was missing which would indicate that in the course of the operation 'this area' adhered to the tissue which was enucleated 'and it didn't separate in an ordinary or normal way.' In our opinion it was error for the trial court to sustain the objection to the question. The question was proper because counsel obviously sought to explore one possible explanation of the damage to Fehrman's sphincter which Dr. Trangsrud found.

A second ruling on evidence attacked by plaintiffs occurred during the course of Dr. Trangsrud's rebuttal testimony. After he testified that he examined Fehrman with a cystoscope in December 1959, the doctor was asked this question and gave this answer:

'Q. At that time were you able to find and locate a whole and undamaged sphincter?

'A. I found a portion of the sphincter, which I found moving and trying to close the flow of urine, as I removed the cystoscope, it should properly be called a remnant.'

Dr. Smirl's counsel objected and moved that the answer be stricken because 'this doctor cannot see the external sphincter by his cystoscopy examination * * *' The trial court then asked, 'Can you see the sphincter by this examination, doctor?' Dr. Trangsrud replied, 'You cannot see the sphincter.' The trial court then struck the previous answer, which counsel had moved be stricken, and instructed the jury to disregard it. It does not appear from the record whether the ring of muscle constituting the external sphincter forms part of the wall tissue of the prostatic urethra, or whether it lies entirely outside such wall tissue. Nevertheless, the record at the time of the foregoing ruling clearly established that an examination by cystoscope enabled the physician to determine something of the condition of the sphincter including whether it had been damaged or a portion thereof removed. Dr. Thompson stated in his deposition that from the cystoscopic examination made of Fehrman at the Mayo Clinic it was determined that some of the external sphincter had been removed 'by the previous surgical procedure.' Dr. Kearns had also testified that he could demonstrate the competency of sphincters by using a cystoscope. We conclude, on the basis of this evidence, that the trial court should not have stricken Dr. Trangsrud's answer merely on the basis of his ambiguous statement, 'You cannot see the sphincter.' One possible explanation of Dr. Trangsrud's statement is that he could not see the whole of Fehrman's sphincter because part of it was missing. Another possible interpretation, of course, is that drawn by the trial judge that the sphincter cannot be seen by a cystoscope.

A third ruling on evidence attacked by plaintiffs relates to the trial court's overruling an objection made by plaintiffs' counsel to the reading into evidence of the following questions and answers from the deposition of Dr. Thompson:

'Q. Is bladder neck contracture usually due to negligence or malpractice on the part of the surgeon?

'A. No.

'Q. Is bladder neck contracture due to negligence on the part of the surgeon?

'A. You say is it 'usually due,' that is the way the question stands. It is not usually due.

'Q. In your physical examination of this patient at the Mayo Clinic, the laboratory tests that were taken, together with the history that you obtained from Dr. Smirl and the patient, your study and consideration of the x-rays and reports of the other doctors of the Mayo Clinic, did you find any evidence of negligence?

'A. No sir.'

It is urged that these questions and answers were incompetent because they invaded the province of the jury. This court, however, is committed to the principle that expert opinion testimony is not objectionable merely because it covers one of the ultimate facts to be determined by the jury. Kreyer v. Farmers' Co-operative Lumber Co. (1962), 18 Wis.2d 67, 76, 117 N.W.2d 646; Zarnik v. C. Reiss Coal Co. (1907), 133 Wis. 290, 301, 113 N.W. 752; and Daly v. Milwaukee (1899), 103 Wis. 588, 590, 79 N.W. 752. See also, 7 Wigmore, Evidence (3d ed.), pp. 18-20, § 1921. Therefore, the overruling of the objection by the trial court was proper. The trial court was careful to instruct the jury that the weight of the expert medical opinion evidence was for the jury alone, and that such opinion testimony is subject to the same rules of credit or discredit as is the testimony of other witnesses.

Error in Instructions Given

Plaintiffs also attack several of the instructions included in the trial court's charge to the jury. The first of these read as follows:

'You are further instructed that it is the duty of the patient to follow the reasonable instructions and submit to the reasonable treatment prescribed by...

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