Hannemann v. Boyson

Decision Date29 June 2005
Docket NumberNo. 2003AP1527.,2003AP1527.
Citation2005 WI 94,698 N.W.2d 714,282 Wis.2d 664
PartiesGary HANNEMANN, Plaintiff-Respondent-Petitioner, v. Craig BOYSON, D.C., Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner there were briefs by John C. Peterson, Jolene D. Schneider and Peterson, Berk & Cross, S.C., Appleton, and oral argument by John C. Peterson.

For the defendant-appellant there was a brief by Thomas R. Schrimpf, Patrick F. Koenen, Jeffrey D. Patza, and Hinshaw & Culbertson, LLP, Milwaukee, and oral argument by Patrick F. Koenen.

¶ 1. JON P. WILCOX, J.

The plaintiff, Gary Hannemann (Hannemann), seeks review of a published court of appeals decision, Hannemann v. Boyson, 2004 WI App 96, ¶ 1, 273 Wis. 2d 457, 681 N.W.2d 561, affirming in part, reversing in part, and remanding with directions a judgment of the Outagamie County Circuit Court, Harold V. Froehlich, Judge. The circuit court entered judgment on the jury verdict in favor of Hannemann in his chiropractic malpractice case against the defendant, Dr. Craig Boyson (Boyson). The court of appeals held, inter alia, that the special verdict submitted to the jury was erroneous because it asked only whether Boyson was negligent in his treatment of Hannemann and did not separately ask whether Boyson failed to obtain Hannemann's informed consent for the procedure that allegedly caused his injury. Id.1

¶ 2. We agree with Boyson and the court of appeals that negligent treatment and failure to obtain informed consent in the context of chiropractic malpractice are two different issues that require separate verdict questions. We conclude that although the practice of chiropractic and the practice of medicine are distinct health care professions, the obligation of the practitioners of both to disclose the risks of the treatment and care they provide should be the same. While the actual disclosures will inevitably vary between doctors and chiropractors, the nature of the duty and limitations thereon should be the same. A patient of chiropractic has the same right as a patient of medical practice to be informed of the material risks of the proposed treatment or procedure so that he may make an informed decision whether to consent to the procedure or treatment. As such, we hold that the scope of a chiropractor's duty to obtain informed consent is the same as that of a medical doctor.

¶ 3. Furthermore, we conclude that the circuit court's failure to submit a separate special verdict on informed consent after separately instructing the jury on negligent treatment and informed consent constituted prejudicial error. We therefore affirm the decision of the court of appeals reversing part of the judgment of the circuit court and remanding the case for a new trial.

I. FACTUAL BACKGROUND

¶ 4. On August 21, 2000, Hannemann filed a complaint against Boyson in Outagamie County Circuit Court, alleging that "[f]rom August 7 through August 23, 1997, the defendant negligently provided chiropractic treatment to the plaintiff, Gary Hannemann, as a proximate consequence to which the plaintiff suffered serious and permanent injury. . . ." As stated with more particularity in his scheduling conference statement, Hannemann alleged that "[t]he defendant negligently adjusted the plaintiff's cervical spine resulting in the plaintiff suffering a stroke with permanent disability."

¶ 5. A four-day jury trial was held beginning on August 15, 2003. During voir dire, Hannemann's attorney began arguing the theory that Boyson failed to provide informed consent by asking the potential jurors if they thought it was wrong for a doctor to warn a patient about the possibility of harm before performing a procedure, even if "it's a very remote risk" that may result in serious injury or death. During opening statements, Hannemann's attorney concentrated on Boyson's alleged failure to discuss the risks inherent in performing a cervical adjustment with Hannemann and his failure to perform appropriate tests on Hannemann. ¶ 6. The following facts and factual disputes were developed at trial. Hannemann began seeing Boyson in July 1996 due to lower back spasms and headaches he experienced as a result of his job, which required long periods of driving. Hannemann had previously undergone a spinal fusion operation. Boyson testified that Hannemann also complained of numbness and tingling in his arm. Boyson stated that he took a patient history and performed various tests on Hannemann. It is undisputed that Boyson did not perform a "George's Test," which is designed to test for neurovascular injuries, because he believed such a test was invalid. However, Boyson testified that he performed several other tests that served the same purpose as the "George's Test." He also stated that he performed x-rays on Hannemann.

¶ 7. Boyson diagnosed Hannemann with cervical subluxation dysfunction. Boyson testified that when Hannemann began his treatment, he described the proposed treatment and discussed the various risks and benefits of chiropractic adjustment. The record indicates that Hannemann signed informed consent forms on two occasions.2 However, it is undisputed that Boyson did not warn Hannemann that chiropractic treatment carried a risk of the patient suffering a stroke or other neurovascular injuries. Boyson explained that the reason he never discussed the risk of stroke was that to his recollection, at the time there was no definitive correlation between chiropractic adjustments and stroke and that "the risk of that is so astronomical that it wasn't a major factor."

¶ 8. Throughout the course of his treatment, Boyson performed adjustments on Hannemann's entire spine and neck in order to place it in proper alignment. After a gap in his treatment, Hannemann saw Boyson in November 1996, following his involvement in an automobile accident. In July 1997, Hannemann saw a medical doctor for headaches and neck stiffness and was diagnosed with a form of viral meningitis.

¶ 9. Following another two-month gap in chiropractic treatment, Hannemann returned again to see Boyson on August 7, 1997, complaining of severe headaches. Boyson testified that he took a brief patient history of Hannemann and performed a brief exam. Boyson testified that Hannemann did not inform him of his meningitis diagnosis during this visit.

¶ 10. Hannemann again saw Boyson after a long day of driving on Thursday, August 21, 1997, complaining of lower back spasms and headaches. Hannemann testified that Boyson administered an adjustment to his lower back and neck. However, Hannemann stated that when Boyson adjusted his neck this time, he experienced a great deal of pain and heard a loud "crack." Hannemann stated that Boyson did not respond when he stated that he had experienced an unusual amount of pain after the adjustment. Boyson testified that the adjustment he administered on that date was no different than his previous adjustments. Boyson also stated that he performed electrical muscle stimulation therapy on that date. Boyson denied Hannemann ever told him the adjustment caused him pain.

¶ 11. The next day, Hannemann began experiencing unusual symptoms that prompted him to call Boyson's office. Hannemann testified that his leg was acting up and he was having difficulty walking. Hannemann made an appointment to see Boyson the following day, even though Boyson's office was generally closed on Saturdays.

¶ 12. Boyson testified that when Hannemann saw him on Saturday, August 23, Hannemann indicated he had developed numbness and tingling in his legs and under his foot, as well as a warm sensation in his thighs. Boyson indicated that he had a discussion with Hannemann concerning his prior bout of meningitis at this point. Boyson stated he checked Hannemann for fixation and performed a series of tests that indicate whether a patient is suffering from meningitis. Boyson stated all tests came back negative.

¶ 13. Hannemann testified that Boyson asked him a series of questions, checked his reflexes, probed his body for pain, and then performed an adjustment to his neck. Hannemann stated that this adjustment was similar to the one he received on Thursday, although he stated this one did not cause him pain. Hannemann denied that Boyson advised him to go to the hospital or seek medical attention.

¶ 14. Boyson denied that he performed an adjustment on Hannemann that Saturday and instead testified that he performed "a manual therapy technique[.]" Boyson also stated that he recommended Hannemann see a medical doctor as soon as possible.

¶ 15. Over the course of the day, Hannemann continued to experience a tingling feeling in his leg. Hannemann went to bed that evening and awoke at 3:00 a.m. the next morning, unable to move one side of his body. Hannemann also began experiencing urinary tract problems. He was admitted to the emergency room and diagnosed with having suffered a stroke.

¶ 16. Hannemann's standard of care expert witness, Dr. Kenneth Murkowski, testified that Boyson's treatment of Hannemann in August fell below the chiropractic standard of care because Boyson did not perform a series of diagnostic tests, including the "George's Test," which would indicate whether a patient was susceptible to neurovascular injury. Boyson, in contrast, presented evidence from Dr. Jeffrey Wilder that the general consensus in the chiropractic community was that the "George's Test" was invalid and that there is no way to screen a patient who may develop post-adjustment problems. Wilder testified that Murkowski's opinions were based on an erroneous view of the facts and that Boyson's treatment of Hannemann on August 21 and 23 did not deviate from the standard of care.

¶ 17. Murkowski also testified that Boyson was negligent in that he failed to obtain informed consent because Murkowksi could "find no informed consent in the records at all." Specifically, he stated that informed consent should...

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