Gates v. Fleischer

• Decision Date: 14 December 1886
• Citation: 30 N.W. 674,67 Wis. 504
• Parties: GATES v. FLEISCHER
• Court: Wisconsin Supreme Court

67 Wis. 504

30 N.W. 674

GATES

v.FLEISCHER

Supreme Court of Wisconsin.

December 14, 1886.

Appeal from circuit court, Marathon county.

The defendant is a practicing physician and surgeon. The plaintiff brought this action against him to recover damages for injuries caused by his alleged malpractice in his treatment of her, she being his patient. In February, 1884, the plaintiff, who is a married woman, gave birth to a child. A few hours after the birth a physician--Dr. Garrey--attended her, and removed the after-birth. He also visited her on February 29th, March 1st, and March 3d. He found a slight laceration of about half an inch on the neck of the womb. Not regaining her strength satisfactorily, about three weeks after Dr. Garrey ceased to visit her she called in the defendant to treat her. Soon afterwards he again visited her, made local examination, and stated that she was suffering from uterine disease, and applied caustics to the cervical canal, or mouth of the womb, on the theory that those parts were ulcerated. He continued the same treatment, at intervals, for several months. The health of the plaintiff not improving, she consulted Dr. Russel, of Oshkosh, about the last of September or first of October following. Dr. Russell examined her, and testifies that he found the cervical canal entirely closed. He opened it by artificial means. There seems to be no dispute that during the whole time of her illness the plaintiff was suffering from septicœmia or blood-poisoning. The testimony and rulings of the court on the trial are sufficiently stated in the following opinion. The jury found for the plaintiff, and assessed her damages at $350. A motion by the defendant for a new trial was denied, and judgment rendered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment.Grace & Alban, for respondent, Gates.

Crosby & Pink, for appellant, Fleischer.

LYON, J.

1. On the trial of the action, nine physicians were examined at considerable length, and gave testimony as experts. As sometimes happens in such cases, there is some conflict of opinion between these witnesses. However, the testimony tended to prove, and the jury were justified in finding therefrom, that the plaintiff had no ulcers upon her womb, or in the cervical canal, and the treatment with caustics was unjustifiable; that advanced medical science discards the use of caustics, in cases of ulceration, as a dangerous practice; that, had the caustic treatment been proper, it was applied in an improper manner by the defendant; that such treatment caused cicatrix in, and the closure of, the cervical canal; that the treatment, and consequent closure, of that organ caused the plaintiff severe and protracted pain and prostration, and has greatly injured her health; and that the plaintiff was not guilty of any negligence or want of reasonable care of herself, or failure to observe the proper directions of the defendant, which contributed proximately to the injury of which she complains.

The defendant was bound to exercise reasonable skill and care in the treatment of the plaintiff. As the learned circuit judge correctly instructed the jury: “The defendant being a physician and surgeon, and as such called to prescribe for, and professionally treat, the plaintiff, he was bound to bring to her aid and relief such skill as is ordinarily possessed and used by physicians and surgeons in the vicinity or locality in which he resides, having regard to the advanced state of the profession at the time of the treatment.” Under this rule of law defining the obligations of the defendant to his patient, and in view of the facts which the testimony tended to prove, as above stated, the verdict for the plaintiff cannot be disturbed for want of evidence. To sustain the verdict, it must be conclusively presumed that all of such facts essential to a recovery by the plaintiff were found by the jury to have been proved.

2. Many exceptions were made on behalf of defendant during the trial to the rulings of the court on objections to the admission of testimony. But two of these are relied on by his counsel as erroneous. These only will be considered.

(1) A question was put by the plaintiff to Dr. Wylie, a physician called by her as an expert, which contained an hypothetical statement of all the material facts testified to by the plaintiff, and by her witnesses Drs. Higgins, Russell, and Garrey. He was asked what, in his opinion, was the cause of the injury to plaintiff, taking such facts as true. Dr. Wylie answered that, in his opinion, the use of caustic was the cause thereof. He then testified that he had heard all the testimony of the physicians above named, and all of plaintiff's testimony from and after a specific point therein. None of the above testimony was objected to. A question was then put to Dr. Wylie on behalf of the plaintiff, in which material facts testified to by plaintiff down to the time when the witness heard her testimony were stated hypothetically, and he was asked what, in his opinion, based upon such statement, and “upon all the evidence testified to by the plaintiff, the facts stated by her, on the facts stated and testified to by Dr. Higgins, Dr. Russell, and Dr. Garrey,” was the cause of the present ill health of the plaintiff. This question was objected to because the witness did not hear the entire testimony of the plaintiff, and for no other reason. The...