Fehrman v. Smirl
| Decision Date | 28 June 1963 |
| Citation | 20 Wis.2d 1,122 N.W.2d 439 |
| Parties | Oscar A. FEHRMAN et al., Appellants, v. Warren G. SMIRL, M.D., Respondents. |
| Court | Wisconsin Supreme Court |
Herbert L. Mount, Milwaukee, for appellants.
Moore & Moore, Milwaukee, for respondent.
Defendant's brief in support of the motion for rehearing takes exception to this statement appearing at page 17 of our original opinion:
'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. Thompson's exact testimony on this point is quoted in the statement of facts at page 12. Defendant contends that subsequent questions and answers in Dr. Thompson's deposition establish that the quoted words 'apparently some of the latter has been removed by the previous surgical procedure' refer to scar tissue and not the external sphincter. While this is a permissible interpretation, we deem the one which we drew is equally tenable. However, if such quoted words be deemed to be ambiguous, the interpretation favorable to plaintiff should have been the one to be considered by the trial court in making the ruling on evidence considered at page 17 of the original opinion. This is so even though it is arguable that the jury later by its verdict may be deemed to have drawn the opposite interpretation.
A more important point which we have considered on rehearing relates to the recommended instruction on res ipsa loquitur set forth at page 27 of the original opinion. 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. However, there was medical testimony that in performing a suprapubic prostatectomy the surgeon is careful not to injure the external sphincter. This gave rise to an inference that if the sphincter was injured in the performance of such operation it would constitute a failure to exercise ordinary care thus rendering proper the giving of the recommended res ipsa loquitur instruction.
Whether it will be proper to give a res ipsa loquitur instruction at the new trial will depend on the expert testimony presented.
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...where it may not be so inferred on the basis of common knowledge. Fehrman v. Smirl, 20 Wis.2d 1, 21, 22, 25, 26, 121 N.W.2d 255, 122 N.W.2d 439 (1963); Trogun v. Fruchtman, Though the requirement of exclusive control in the defendant has been frequently stated by this and other courts, the ......
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...experience must be a matter of common knowledge in the lay community, defendant cites Fehrman v. Smirl, 20 Wis.2d 1, 121 N.W.2d 255, 122 N.W.2d 439 (1963). However, that case does not support defendant's position. The Wisconsin court held the foundation for res ipsa loquitur may rest either......