Fehrman v. Smirl

• Decision Date: 24 November 1964
• Citation: 131 N.W.2d 314,25 Wis.2d 645
• Parties: Oscar A. FEHRMAN et al., Respondents, v. Warren G. SMIRL, M.D., Appellant.
• Court: Wisconsin Supreme Court

Page 314

131 N.W.2d 314

25 Wis.2d 645

Oscar A. FEHRMAN et al., Respondents, v. Warren G. SMIRL, M.D., Appellant.

Supreme Court of Wisconsin.

Nov. 24, 1964.

Moore & Moore, Frank T. Crivello, Milwaukee, for defendant appellant.

Mount & Keck, Milwaukee, for plaintiffs respondents.

GORDON, Justice.

Some of the appellant's arguments on this appeal are directed at claimed errors in our previous opinion in this case. Fehrman v. Smirl (1963), 20 Wis.2d 1, 121 N.W.2d 255, 122 N.W.2d 439. We recently had occasion to reiterate the rule that on a second appeal the supreme court will not reconsider its rulings made on the earlier appeal. In Cathey v. Industrial Commission (1964), Wis., 130 N.W.2d 777, this court stated:

'We will not re-examine the merits of those contentions of the appellant which were involved in the previous appeal.'

In the opinion rendered on the previous appeal, we declared, 20 Wis.2d at at page 28a, 121 N.W.2d at p. 270, as follows:

'In conducting the new trial, none of the facts stated herein are to be construed as the 'law of the case' or as limiting the scope of the evidence which may properly be admissible during such new trial.'

Accordingly, some of the issues decided upon the first appeal may be considered insofar as there was proof at the second trial which was divergent from that received at the first trial.

From of Verdict Question One.

We have quoted above the full text of Question One of the special verdict which was submitted to the jury. The appellant contends that, as framed, such question assumes that Mr. Fehrman's external sphincter was in fact subjected to an injury. The proper approach, according to the appellant, was to inquire whether the external sphincter had been damaged. Upon the appellant's theory of this case, either there was no damage to the external sphincter or, if there were, it may have been caused by disease rather than injury.

At page 28 of this court's opinion on the first appeal in 20 Wis.2d, at page 270 of 121 N.W.2d, we stated:

'If during the new trial the evidence which allegedly shows negligence on Dr. Smirl's part only concerns injury to the external sphincter, we would recommend submitting an additional question, as the first question of the special verdict, inquiring whether Fehrman's external sphincter was injured in the course of the first or second operations, or the post-operative care.'

We conclude that the challenge to the form of the first question of the verdict is without merit. We disagree with the appellant's premise that the form of the question suggests to the jury that there was in fact an injury. In our opinion, the question fairly makes inquiry into a time interval during which the injury, if any, may have occurred. Neither Affett v. Milwaukee & S. T. Corp. (1960), 11 Wis.2d 604, 106 N.W.2d 274, 86 A.L.R.2d 227, nor Sharp v. Milwaukee & S. T. Corp. (1961), 15 Wis.2d 268, 112 N.W.2d 597, justifies the appellant's contention that a different question should have been submitted inquiring whether Mr. Fehrman's external sphincter was damaged.

Res Ipsa Loquitur.

On behalf of Dr. Smirl, counsel argues that it was improper for the trial court to have given Mr. Fehrman the benefit of an instruction on res ipsa loquitur. Once again, we encounter the appellant's theory that it was Mr. Fehrman's syphilitic condition which may have caused his urinary incontinence. Since neither Dr. McDonnell nor Dr. Smirl was in charge of the patient in connection with the disease of his central nervous system, it is contended that res ipsa loquitur does not apply. Turk v. H. C. Prange Co. (1963), 18 Wis.2d 547, 554, 119 N.W.2d 365.

Our examination of the record persuades us that Mr. Fehrman's disease did not contribute to his problem of urinary incontinence except in 'a relatively minor way,' as Dr. Scheifley phrased it. This conclusion is also consistent with Dr. Schaefer's observation that the changes in the brain associated with syphilis are not of such severity as to cause incontinence.

From the medical testimony, any contribution which Mr. Fehrman's disease may have made to his urinary incontinence did not rise to the dignity of being a 'substantial factor' so as to permit it to qualify as a legal cause under Pfeifer v. Standard Gateway Theater Inc. (1952), 262 Wis. 229, 55 N.W.2d 29.

There was direct medical proof of negligence. Asked his opinion as to whether Mr. Fehrman's external urinary sphincter would have been damaged during the operative procedures and intervening treatments performed upon him by Drs. Smirl and McDonnell, Dr. Trangsrud gave the following answer:

'It is my opinion that this result would not have occurred if they, or either of them, or both, had been exercising the proper skill and care and diligence that is expected of them in the performance of this operation, suprapubic prostatectomy.'

The foregoing statement of Dr. Trangsrud was directed at the very same inquiry which was to be resolved by the jury. In the previous appeal, 20 Wis.2d at page 18, 121 N.W.2d at page 264, it was noted that this court '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.'

Upon rehearing of the first appeal, we said, at page 28b, 122 N.W.2d at page 439:

'Whether the evidence presented warrants the giving of a res ipsa loquitur instruction always presents a question of law for the trial court to pass on. At the instant trial no medical witness testified directly that the injuring of the external sphincter in performing a prostatectomy constitutes want of ordinary care on the part of the operating surgeon. * * *

'Whether it will be proper to give a res ipsa loquitur instruction at the new trial will depend on the expert testimony presented.'

While Dr. Trangsrud's testimony constitutes direct proof of malpractice, it does not particularize the nature of the negligence which he had in mind. In other words, the jury was not expressly told by Dr. Trangsrud in what precise manner the two doctors failed to exercise proper skill and diligence. Since a variety of potential opportunities for negligence existed in the instant case, it is arguable that res ipsa loquitur was appropriate to raise an inference of negligence as to conduct which was not included within Dr. Trangsrud's conclusions. On the other hand, if Dr. Trangsrud's evidence is deemed to be so broad as to constitute direct proof of the only kinds of negligence which might reasonably have been attributed to Dr. Smirl, then the instruction on res ipsa loquitur would have been redundant.

In Lee v. Milwaukee Gas Light Co. (1963), 20 Wis.2d 333, 340, 122 N.W.2d 374, 379, it was said with reference to res ipsa loquitur:

'Specific elements of negligence not reaching the point of a prima facie case which is overcome by other evidence may be supported by the application of the doctrine * * *.'

The same approach was also expressed in Brunner v. Van Hoof (1958), 4 Wis.2d 459, 464, 90 N.W.2d 551, 554.

'When specific acts of negligence are shown making a prima facie case by the plaintiff and the inference of negligence is met and overcome by the evidence on the part of the defendant the doctrine of res ipsa loquitur is not applicable.'

One of the problems presented by the foregoing quotations is that it is difficult for the trial judge to determine in advance of the jury's rendition of its verdict whether the proof has been in fact 'overcome.' This court is now of the opinion that the two expressions immediately above quoted should be withdrawn.

When proof of negligence is offered, the trial judge, in contemplating the instructions which he will give to the jury, must evaluate the testimony to determine if there has been such substantial proof of negligence as to render superfluous the giving of an instruction on res ipsa loquitur. Sometimes the question as to the adequacy of the proof of negligence will be a close one; it will be within the sound discretion of the trial judge to determine whether the giving of the instruction will be redundant.

We subscribe to the following comment of Dean Prosser:

'* * * the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.' Prosser, Law of Torts (3d ed.), p. 236, sec. 40, ch. 6.

In any event, in the instant case, it was not an abuse of discretion for the trial court to have given the res ipsa loquitur instruction.

Vicarious Liability.

The appellant objects to the fact that under the court's instruction he was held responsible for the negligence which may have been chargeable to Dr. McDonnell. During the course of its deliberations, the jury returned to the courtroom and asked for further instructions relative to Dr. Smirl's responsibility for the care given the patient by Dr. McDonnell. The court responded as follows:

'You are instructed, Members of the Jury, that it was the duty of Dr. McDonnell to exercise the same degree of care and skill in his treatment and in his surgery upon Oscar Fehrman as was required of Dr. Smirl, and that Dr. Smirl would be responsible for any failure upon the part of Dr. McDonnell to exercise such care and skill.'

The trial court had previously given an instruction relative to the extent of Dr. Smirl's responsibility. It was couched in different words but was nevertheless consistent with the above quoted language. Upon the first appeal, this court asserted the following in a footnote, 20 Wis.2d at page 26, 121 N.W.2d at page 268:

'The trial court properly instructed the jury as follows: 'You are instructed that the responsibility of the defendant, Dr. Smirl, to the plaintiff, Oscar A. Fehrman, for malpractice, if...