Fischer by Fischer v. Ganju

Decision Date16 June 1992
Docket NumberNo. 90-1863,90-1863
Citation485 N.W.2d 10,168 Wis.2d 834
PartiesCynthia A. FISCHER, by her Guardian David FISCHER, Tammy Fischer, Amy Fischer and Carrie Fischer, Plaintiffs-Appellants, v. Badri N. GANJU, M.D., and Marvin G. Jumes, M.D., Defendants-Respondents.
CourtWisconsin Supreme Court

For the plaintiffs-appellants there was a brief by Roger Pettit and Petrie & Stocking, S.C., Milwaukee and oral argument by Mr. Pettit.

For the defendant-respondent, Badri N. Ganju, M.D., there was a brief by Donald R. Peterson, Peter F. Mullaney and Peterson, Johnson & Murry, S.C., Milwaukee and oral argument by Donald R. Peterson.

For the defendant-respondent, Marvin G. Jumes, M.D., there was a brief by Lee F. Fehr and Nash, Spindler, Dean & Grimstad, Manitowoc and oral argument by Mr. Rusboldt.

Amicus curiae brief was filed by Steven C. Zach, Amanda J. Kaiser and Boardman, Suhr, Curry & Field, Madison, for the State Medical Soc. of Wisconsin.

Amicus curiae brief was filed by Todd M. Weir and Otjen, Van Ert, Stangle, Lieb & Weir, S.C., Milwaukee, for the Civil Trial Counsel of Wisconsin.

Amicus curiae brief was filed by Robert A. Slattery, D. Sean O'Lochlayne and Slattery & Hausman, Ltd., Milwaukee, for the Wisconsin Academy of Trial Lawyers.

HEFFERNAN, Chief Justice.

This is an appeal by Cynthia A. Fischer and her immediate family (plaintiffs) from a judgment of the circuit court for Sheboygan county, Gary Langhoff, circuit judge, which granted judgment on the verdict finding that the negligence of Badri N. Ganju, M.D., and Marvin G. Jumes, M.D. (defendants) was not a cause of Cynthia Fischer's injuries. The complaint was dismissed with prejudice. The appeal was accepted upon the certification of the court of appeals. We affirm the circuit court.

The specific issue certified by the court of appeals is whether Ehlinger v. Sipes, 155 Wis.2d 1, 454 N.W.2d 754 (1990) (Ehlinger II ), substantively changed the law of causation in medical malpractice cases when the malpractice allegedly creates an increased risk of injury to a plaintiff's pre-existing medical condition. We conclude that Ehlinger II addressed only the plaintiff's burden of production on causation necessary to survive a motion to dismiss or motion for directed verdict for insufficient evidence. Once the question of causation is submitted to the trier of fact, the issue is the same as in other negligence causes of action: was the defendant's negligence a substantial factor in producing the plaintiff's injuries? Because the jury instructions submitted to the jury in this case adequately stated the law of causation, and because Ehlinger II did not substantively change that law, we affirm the circuit court.

The facts are as follows. Cynthia Fischer was admitted to Plymouth Hospital (now Valley View Medical Center) on July 13, 1985, complaining of diarrhea, vomiting, rectal bleeding and abdominal pain. The admitting physician, Dr. Michael Jacquat, diagnosed her condition as acute inflammatory bowel disease. He referred Mrs. Fischer to Dr. Badri Ganju for consultation. Dr. Ganju, a general surgeon, examined Mrs. Fischer and tentatively diagnosed an infectious, inflamed colon (colitis) or inflammatory bowel disease.

On July 14, 1985, Dr. Ganju performed a diagnostic examination of the colon, which revealed an inflamed sigmoid colon. He prescribed preventive treatment referred to as "medical management," which involves fluid replacement and administration of antibiotics or steroids.

On July 16, 1985, Mrs. Fischer complained of nausea and abdominal pain. Dr. Ganju determined that her kidneys were not functioning, and ordered increased fluids. Several hours later, it was determined that Mrs. Fischer was suffering from fulminating colitis, and that a colectomy was necessary. Dr. Ganju successfully performed an emergency subtotal colectomy and ileostomy that evening. Dr. Marvin Jumes was the attending anesthesiologist. Mrs. Fisher's post-operative condition was satisfactory and stable, and both Dr. Ganju and Dr. Jumes believed that her condition had stabilized.

On July 17, 1985, Mrs. Fischer suffered a hypotensive episode, and her condition deteriorated rapidly. Dr. Ganju placed a monitoring catheter in Mrs. Fischer, and later ordered her transferred to Froedtert Memorial Hospital for dialysis. At some point during the transfer, Mrs. Fischer lapsed into a permanent vegetative state due to an inadequate supply of oxygen to her brain. Upon admission to Froedtert, Mrs. Fischer was comatose and unresponsive. She has since remained in a permanent vegetative state.

Mrs. Fischer and her immediate family sued Dr. Ganju, Dr. Jumes, Dr. Jacquat and Dr. Mark Sharon, alleging negligence in their treatment and care of Mrs. Fischer. 1 In an amended complaint filed October 8, 1986, the plaintiffs alleged that Dr. Ganju failed to properly diagnose and recognize the severity of and adequately manage Mrs. Fischer's condition and that he failed to operate upon Mrs. Fischer in a timely fashion. The plaintiffs also alleged that Dr. Jumes failed to prepare Mrs. Fischer properly for surgery and failed to monitor her adequately during and after surgery. The complaint further alleged that the joint and several negligence of the defendants was a proximate cause of Mrs. Fischer's injuries.

A jury trial was conducted in January, 1990. At the close of the evidence, the defendants requested the court to instruct the jury pursuant to standard jury instruction Wis.J.I.-Civil 1023. The defendants' proposed instruction stated:

The cause questions ask whether there was a causal connection between the negligence of any person and the injury. These questions do not ask about "the cause," but rather "a cause." The reason for this is that there may be more than one cause of an injury. The negligence of one person may cause an injury or the combined negligence of two or more persons may cause it. Before you find that a person's negligence was a cause of the injury, you must find that his negligence was a substantial factor in producing the injury.

The negligence of one person alone may produce injury, or the acts or omissions on the part of two or more persons, or other conditions beyond anyone's control may jointly produce the injury. Before the relationship of cause and effect can be found to exist, it must appear that the negligence of one or more of the physicians, Badri Ganju, Marvin Jumes, Mark Sharon or Michael Jacquat, if found by you, was a substantial factor in producing the resulting condition; that is to say, it was a factor actually operating and which had the substantial effect in producing the condition as a natural result.

The evidence indicates without dispute that when Cynthia Fischer was first seen by Badri Ganju, Marvin Jumes, Mark Sharon and Michael Jacquat and placed herself under their care, she was then suffering from an inflammatory bowel disorder. Her physical condition at that time cannot be regarded by you in any way as having been caused or contributed to by any negligence on the part of Badri Ganju, Marvin Jumes, Mark Sharon or Michael Jacquat. Questions 1, 3, 5 and 7 ask you to determine whether the condition of Cynthia Fischer's health, as it was when she placed herself under each doctors' care, has been aggravated or further impaired as a natural result of Badri Ganju's, Marvin Jumes's, Mark Sharon's or Michael Jacquat's treatment of her.

If you believe from the evidence that the present condition of Cynthia Fischer's health may have been caused by the negligent treatment of either Badri Ganju, Marvin Jumes, Mark Sharon or Michael Jacquat or by the processes and developments of Cynthia Fischer's prior physical condition, then you may not find the negligence of Badri Ganju, Marvin Jumes, Mark Sharon and/or Michael Jacquat was a cause of Cynthia Fischer's condition unless you are able to conclude that the negligence was a substantial factor in producing the injury.

It will, therefore, be necessary for you to distinguish and separate, first, the natural results and damage that flow from Cynthia Fischer's original physical condition and, second, those that flow from Badri Ganju's, Marvin Jumes's, Mark Sharon's and/or Michael Jacquat's treatment and allow Cynthia Fischer only such damages as you are satisfied to a reasonable certainty, from the greater weight of credible evidence, naturally resulted from the treatment by Badri Ganju, Marvin Jumes, Mark Sharon or Michael Jacquat.

Plaintiffs objected to the standard instruction. Plaintiffs argued that the final paragraph of the proposed instruction was duplicative and that it incompletely stated the law of causation.

Plaintiffs submitted an alternative proposed instruction based in part upon Ehlinger v. Sipes, 148 Wis.2d 260, 434 N.W.2d 825 (Ct.App.1988) (Ehlinger I ). The plaintiffs' proposed causation instruction provided:

The cause questions ask whether there was a causal connection between the negligence of any person and the injury. These questions do not ask about "the cause," but rather "a cause." The reason for this is that there may be more than one cause of an injury. The negligence of one person may cause an injury or the combined negligence of two or more persons may cause it. Before you find that a person's negligence was a cause of the injury, you must find that his negligence was a substantial factor in producing the injury.

In determining the cause question, you may take into consideration whether one or more of the defendants conduct increased the risk of harm to the plaintiff. In other words, if one or more of the doctors negligent acts or omissions substantially increased the risk of harm to Mrs. Fischer, you must determine whether that increased risk of harm was a substantial factor in producing the injury actually sustained by Mrs. Fischer. You have heard evidence that when Cynthia Fischer was first seen by the defendants, she was suffering from an...

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