Francois v. Mokrohisky, 426
| Decision Date | 06 March 1975 |
| Docket Number | No. 426,426 |
| Citation | 226 N.W.2d 470,67 Wis.2d 196 |
| Parties | James FRANCOIS, Respondent, v. John R. MOKROHISKY, M.D., et al., Appellants, John J. Boersma, M.D., Defendant. |
| Court | Wisconsin Supreme Court |
Everson, Whitney, Everson, Brehm & Pfankuch, S.C., Hanaway, Ross & Hanaway, Green Bay, for appellants.
Habush, Gillick, Habush, Davis & Murphy, Milwaukee, for respondent.
This is a medical malpractice case in which the jury found Doctors Boersma, Mokrohisky, and Stoll negligent in the diagnosis of the illness of James Francois as gallstones and for the performance of subsequent surgery, which revealed a healthy gallbladder and no gallstones. Damages for loss of earnings, hospital and medical expenses, and for personal injury were awarded. The verdict was approved by the trial judge, and judgment was entered.
The question presented is whether a verdict for malpractice based on a res ipsa loquitur can be sustained in the absence of medical testimony establishing a standard of care when the surgery failed to reveal the diagnosed condition and showed that the gallbladder, which the physicians thought was diseased, was free of gallstones or other pathology.
We conclude that, in this surgical malpractice case involving an erroneous diagnosis, where there was no expert testimony, the doctrine of res ipsa loquitur does not apply. A jury of laymen does not have the knowledge to conclude that this surgery, which showed an incorrect diagnosis, could only have been the result of negligence. There was no evidence that any of the defendant physicians failed to exercise the appropriate standard of care. The verdict of the jury and the post-verdict order and judgment of the trial judge must be reversed and the cause remanded to the trial court, with directions to dismiss the complaint.
James Francois first visited Dr. Boersma in 1963. At that time Francois had symptoms of nausea and upper abdominal cramps. He vomited blood that had the texture and appearance of coffee grounds. He was examined at St. Vincent Hospital to determine whether the condition was caused by a stomach ulcer. An ulcer was ruled out, and a diagnosis of 'acute gastroenteritis' was made. There were no symptoms in 1963 that were associated with possible gallbladder pathology.
Francois again saw Dr. Boersma in 1967, when he again had severe abdominal pains and bouts of vomiting of a coffee-grounds-like substance. He was again admitted to the hospital for diagnosis. Because at this time there was a tenderness in the region of the gallbladder, a study of that organ was ordered by Dr. Boersma and undertaken by Dr. Mokrohisky. Francois was admitted to the hospital with a tentative diagnosis of 'possible bleeding ulcer.' Upon discharge, the diagnosis was changed to 'probable gallstones.'
At trial, Dr. Boersma testified that Francois had some, but not all, of the classical signs and symptoms of gallbladder trouble.
During hospitalization, Dr. Mokrohisky performed an x-ray examination of Francois' gallbladder. He testified that in gross cases of gallstones, three x-rays are usually sufficient. In Francois' case, however, he took 30 pictures. He reported his findings to Dr. Boersma:
At trial, he testified that he saw six to twelve gallstones. On the basis of Dr. Mokrohisky's report and the compatibility of some signs and symptoms with gallbladder trouble, Dr. Boersma recommended elective surgery.
Francois was told that the x-rays showed gallstones and that treatment could be either a low-fat gallbladder diet or surgery. Francois elected surgery and accepted the recommendation of Dr. Boersma's office that Dr. Stoll perform the surgery.
At trial, Dr. Stoll stated that all of Francois' symptoms were not typical of gallbladder. He, however, made an examination of Francois and talked with him the evening before the surgery. He stated that he would not have operated were it not for the x-ray findings of the presence of gallstones, but he relied on his own judgment also.
When surgery was performed on February 8, 1968, Dr. Stoll found a healthy gallbladder, free of any stones. He closed the incision and left the gallbladder intact.
There was some testimony at trial that, were there stones in the gallbladder, they might have dissolved or passed from the body. The patient's history, however, did not reveal any painful episodes that could be related to the passing of any stones. There was also evidence that, in some cases, mucosal folds in the lining of the gallbladder can be mistakenly identified as gallstones.
Dr. Mokrohisky testified that what he saw were gallstones and testified to a reasonable degree of medical certainty that the stones had neither dissolved or were passed in the interim between the x-ray examination and the surgery. He stated that he had never mistakenly identified mucosal folds as gallstones.
Two radiologists were called as medical witnesses to review the x-rays.
Dr. Edelblute testified:
'I don't think the findings are completely definite for an examination of a single date; however, with some 30 projections, it was my impression that there are probably stones present.'
Dr. McManus testified:
'it was my feeling that there were apparent gall stones within the gall bladder on that study on this particular day in December, 1967.'
Under this state of the record, we conclude that there was no expert medical testimony to show that any of the physicians had failed to conform to a proper standard of care. That standard was stated in Shier v. Freedman (1973), 58 Wis.2d 269, 283, 284, 206 N.W.2d 166, 174, 208 N.W.2d 328:
'(A) qualified medical (or dental) practitioner, be he a general practitioner or a specialist, should be subject to liability in an action for negligence if he fails to exercise that degree of care and skill which is exercised by the average practitioner in the class to which he belongs, acting in the same or similar circumstances.'
The burden to prove negligence was on the plaintiff, and there was no testimony by any medical expert to show an appropriate standard of care or a breach of that standard.
True, there was evidence that other physicians might have acted differently and that there were alternate procedures available, but no physician testified that what was done did not comport with approved medical...
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