Hafemann v. Seymer

• Decision Date: 08 May 1928
• Citation: 195 Wis. 625,219 N.W. 375
• Parties: HAFEMANN v. SEYMER.
• Court: Wisconsin Supreme Court

195 Wis. 625

219 N.W. 375

HAFEMANN

v.SEYMER.

Supreme Court of Wisconsin.

May 8, 1928.

Appeal from a judgment of the Circuit Court for Milwaukee County; Edgar V. Werner, Circuit Judge.

Action by Ben Hafemann, as administrator of the estate of Hattie Hafemann, deceased, against L. A. Seymer. From a judgment dismissing the complaint on its merits, plaintiff appeals. Reversed, with directions.--[By Editorial Staff.]

Action begun May 27, 1921. Judgment entered November 26, 1927.

Malpractice. The action out of which this appeal arose was before this court on appeal from an order of the lower court, Circuit Judge Walter Schinz presiding, who sustained demurrers of the defendant to all but the third and sixth causes of action set forth in the complaint. Hafemann v. Seymer, 191 Wis. 174, 210 N. W. 373.

The complaint, by appropriate allegations, charges that the defendant, a physician and surgeon, negligently and carelessly prescribed and caused to be administered to the wife of the plaintiff certain drugs and medicines, and carelessly and negligently performed an operation upon the wife of the plaintiff, who was his patient; that she died by reason thereof.

The answer admits the treatment of the wife by defendant, and her death, but denies any negligence in such treatment.

The trial was by the court and a jury. A special verdict was rendered, to wit:

“Did the defendant, Dr. Seymer, fail to exercise ordinary care:

Question No. 1. By failure to sterilize the instruments used by him at the time and place in question? Answer. Yes.

Question No. 2. By failure to sterilize his hands in performing the operation? Answer. Yes.

Question No. 3. By failure to use sterile gauze in the operation? Answer. Yes.

Question No. 4. If you answer questions numbered 1, 2, and 3, ‘no,’ you need not answer question No. 4. If you answer questions numbered 1, 2, and 3 or any or either of them ‘yes,’ then answer question No. 4: Was such failure a proximate cause of the death of Hattie Hafemann? Answer. Yes.

Question No. 5. In the event that the estate of Hattie Hafemann should be entitled to recover, at what sum do you assess her damages for pain and suffering? Answer. $1,000.

Question No. 6. In the event that the plaintiff, Ben Hafemann, should be entitled to recover, at what sum do you assess his damages? Answer. $3,000.”

Thereafter the plaintiff moved for judgment on the verdict, and defendant moved, among other things, to change the answer to the fourth question from “yes” to “no.” Defendant's said motion was granted, and judgment was thereupon entered dismissing the complaint on its merits. Plaintiff appeals.

Plaintiff assigns as errors: The court erred in changing the answer to the fourth question; in ordering judgment for defendant on the special verdict so changed; and in denying plaintiff's motion for judgment on the verdict as returned by the jury. Other errors assigned are not necessary to a consideration of the case.

McGovern, Lyons, Curtis, Devos & Reiss, of Milwaukee, for appellant.

Lines, Spooner & Quarles, of Milwaukee, for respondent.

CROWNHART, J.

Plaintiff's wife went to the office of the defendant, who was a physician and surgeon, duly licensed to practice in this state, for treatment. She apparently was suffering from a cold in her chest. The doctor gave her a prescription, which she had filled and used as prescribed. This first visit was on February 19, 1921. The plaintiff was with his wife at the time of this visit. February 21st plaintiff called defendant and reported that his wife's pains were about the same, and the doctor responded by a visit to his patient at her home. He made no physical examination of the patient that day, but gave her a box of pills to be taken, which she took as directed. February 24th plaintiff again called the defendant and told him his wife was getting worse. The patient was confined to her bed for the first time. The defendant responded by a visit at the home, and then made a physical examination of the uterus, using a speculum for the purpose. He then used a tenaculum to grasp the lip or cervix of the uterus to pull it out and hold it, and then with a dressing forceps he packed the uterus with gauze. The patient was pregnant for something more than a month. The packing was expelled by natural contraction of the uterus later the same day. The patient grew worse, and defendant was called again on the 25th of February. He examined his patient and prescribed medicine which plaintiff procured and gave to his wife as directed. The patient continued to grow worse, and the doctor was called again on February 26th. He took his patient's temperature, pronounced her condition favorable, and said she should continue to take the medicine he had previously prescribed. February 27th the doctor was again called to the bedside, and diagnosed the ailment then as blood poisoning. The defendant again visited his patient on the 28th, and had Dr. Thomas with him in consultation. The patient continued to grow worse until March 2d, when she died from blood poisoning resulting from streptococci infection introduced into her system through the operation performed by packing the uterus.

The foregoing facts are substantially conceded. The issues involved were the negligence of the defendant, charged to the defendant at the operation, claimed to have resulted in the infection causing death of plaintiff's wife.

[1] It is not seriously contended that the evidence is insufficient to support the verdict of the jury as to the negligence of the defendant in performing the operation upon the deceased. The trial court sustained the verdict of the jury in that regard, and from a careful examination of the evidence we think defendant's negligence was clearly a jury question.

The question here, then, turns directly as to whether such negligence was the proximate cause of the infection. That deceased died from streptococci infection is conceded.

Dr. Warfield, on behalf of the defendant, testified that in one-third of the women the vagina contains streptococci bacteria, and from this it is contended by the defendant that it is impossible to determine whether the infection was introduced into the deceased's system through the negligence of the defendant or whether it came from the germs already present in the vagina unaffected by defendant's negligence.

It must be conceded that the question is not free from difficulty. It may be admitted that it cannot be answered with absolute certainty. The difficulty of tracing bacterial infection has been stressed by this court in some recent cases. In Koehler v. Waukesha Milk Co., 190 Wis. 52, 208 N. W. 901, the deceased cut her finger on a defective milk bottle and she died from infection. It was there contended that the source of the infection might as well be attributed to some other cause than the milk bottle. There was no proof that the bottle was contaminated by the infection germs. The court, responding to such contention, said:

“We are unable to say as a matter of law that there was shown any independent agency intervening the cut on the finger caused when Mrs. Koehler picked up the milk bottle and the subsequent discovery of the existence of the septicemia, so that as a matter of law it could be said that the infection occurred at some other time than when the cut was first made and entry of bacteria, if such were there, into the wound from the bottle, became possible, and so as to bring the situation here within the qualification to the rule above stated as to an intervening cause. Manifestly no direct evidence could be produced as to just when the infection invaded her system, but that it did is undeniable; and it was a proper exercise of a jury's judgment, under all the facts, to determine as far as humanly possible...