Hoven v. Kelble
| Citation | 256 N.W.2d 379,79 Wis.2d 444 |
| Decision Date | 01 July 1977 |
| Docket Number | No. 75-452,75-452 |
| Court | Wisconsin Supreme Court |
| Parties | , 100 A.L.R.3d 1184 Robert HOVEN by his guardian ad litem, James R. Gass, and Diann Hoven, Respondents-Plaintiffs, v. John A. KELBLE, M.D., St. Paul Insurance Companies, a Foreign Insurance Company, St. Mary's Hospital and Insurance Company of North America, a Foreign Corporation, Appellants-Defendants, St. Paul Fire & Marine Ins. Co., a Foreign Insurance Company and John Burroughs, M.D., Defendants. |
John R. Teetaert, Appleton, for St. Paul Fire & Marine Ins. Co. and John A. Kelble, M.D.; Fulton, Menn, & Nehs, Ltd., Appleton, on briefs.
Merten, Connell & Sisolak, S.C., Milwaukee, on brief for St. Mary's Hospital and Ins. Co. of North America.
Russell M. Ware, Milwaukee, for respondents; James R. Gass and Kasdorf, Dall, Lewis & Swietlik, Milwaukee, on the briefs.
This is a medical malpractice action, instituted by complaint served on April 14, 1975, which is presently before this court on appeals from an order entered on demurrer. In the action Robert Hoven, by guardian ad litem, and Diann Hoven, Robert Hoven's wife, seek to recover damages sustained as a result of injuries suffered by Robert Hoven while undergoing a lung biopsy on May 2, 1973. The defendants are St. Mary's Hospital, at which the lung biopsy was performed, Dr. John Burroughs, the surgeon who performed the procedure, and Dr. John A. Kelble, the anesthesiologist. Also named as defendants are the Insurance Company of North America and the St. Paul Fire and Marine Insurance Company, liability insurers for the parties. The complaint alleges that during the lung biopsy Robert Hoven suffered a cardiac arrest and injury to his nervous system and brain tissue resulting in past, present and future medical expenses, pain, suffering, disability, and loss of income, all to his damage in the amount of $3 million. Diann Hoven's damages for past, present and future loss of the society, companionship, consortium and services of Robert Hoven were alleged in the sum of $1 million.
The foregoing allegations constitute what are denominated the "Preliminary Allegations" of the complaint and may be intended to make out a cause of action against the defendants jointly. No demurrer was interposed thereto. The complaint then alleges liability in the defendants individually in ten separately stated causes of action. Four causes of action allege specific acts of negligence and are not directly at issue on this appeal. Of the remaining six causes of action, three separately allege applicability of the doctrine of res ipsa loquitur as to defendants Kelble, Burroughs and St. Mary's Hospital, 1 and three causes of action against the same defendants are predicated on a theory of "strict liability" for allegedly defective medical services rendered by each of the same three defendants. 2 The defendants demurred separately to the strict liability and res ipsa loquitur causes of action (with the exception that Dr. Burroughs did not demur to the res ipsa loquitur cause of action against him), and a hearing on the demurrers was held on September 15, 1975. The trial court ruled from the bench at the close of the hearing that the demurrers to the res ipsa loquitur causes of action would be overruled and the demurrers to the strict liability causes of action would be sustained. From an order entered accordingly on October 2, 1975, Kelble and the hospital (along with their insurers) have each appealed from that part of the order overruling their demurrers to the res ipsa loquitur claims, and the plaintiffs have appealed from that part of the order sustaining the demurrers to the strict liability causes of action.
These appeals raise two issues:
A. Is a complaint in a medical malpractice action arising out of a surgical procedure demurrable where, in alleging applicability of the doctrine of res ipsa loquitur, control is alleged to have been in each of three defendants, but exclusive control is not alleged to have been in the defendants collectively or in any one of them?
B. Is a so-called "strict liability" cause of action demurrable in a medical malpractice action arising out of a surgical procedure?
In Szafranski v. Radetzky, 31 Wis.2d 119, 141 N.W.2d 902 (1966), this court had before it a demurrer to a complaint alleging specific acts of negligence in a first count and purporting to allege res ipsa loquitur in the second count. The relevance of the doctrine at the pleading stage was set forth by the court as follows, 31 Wis.2d at 132, 133, 141 N.W.2d at 908:
Thus the question on demurrer is whether the complaint satisfactorily alleges the elements for the doctrine's application. It may be noted, however, that at the present stage of this action, the answer to the question seems of marginal significance. This is not a case where the complaint depends completely on res ipsa loquitur, such that if the demurrer is sustained the plaintiffs are out of court. Whatever disposition is made of the res ipsa causes of action, there will remain the first cause of action in negligence against all defendants and the causes of action in negligence against the individual defendants. If the evidence adduced at trial is such as to render the doctrine of res ipsa loquitur applicable, the plaintiffs will be entitled to rely thereon to defeat a motion for a directed verdict, and will be entitled to an appropriate jury instruction, whether the doctrine was pleaded or not.
"Whether the evidence presented warrants the giving of a res ipsa loquitur instruction always presents a question of law for the trial court to pass on." (Emphasis supplied.) Fehrman v. Smirl, 20 Wis.2d 1, 28b, 121 N.W.2d 255 (1963).
Clearly a final determination as to the applicability of res ipsa loquitur could seldom if ever be made at the pleading stage.
" "
Initially, defendants contend that the plaintiffs have alleged too much by way of specific negligent acts to be entitled to rely on res ipsa loquitur. This contention is without merit. It is settled in Wisconsin that a plaintiff may plead res ipsa loquitur and specific negligent acts in the alternative. Szafranski v. Radetzky, supra. In Knief v. Sargent, 40 Wis.2d 4, 9, 161 N.W.2d 232 (1968); Turtenwald v. Aetna Casualty & Surety Co., 55 Wis.2d 659, 667, 668, 201 N.W.2d 1 (1972); and Utica Mutual Insurance Co. v. Ripon Cooperative, 50 Wis.2d 431, 439, 440, 184 N.W.2d 65 (1971), we set forth the test for determining when a plaintiff has introduced enough but not too much evidence to permit reliance on res ipsa loquitur. It would be inappropriate to apply this test at the pleading stage, where it is altogether uncertain what the plaintiff ultimately may be able to prove at trial.
The defendants next contend that since the complaint alleges as to each defendant in the alternative that the injuries to Robert Hoven occurred while Hoven was "under the control of" the defendant named, the allegation is defective because it fails to allege that the defendant's control was exclusive.
The usual formula by which this court has stated the conditions for application of res ipsa loquitur is the following:
(1) The event must be a kind which ordinarily does not occur in the absence of someone's negligence, and
(2) it must be caused by an agency or instrumentality within the exclusive control of the defendant. Turk v. H. C. Prange Co., 18 Wis.2d 547, 553, 119 N.W.2d 365 (1963); Utica Mut. Ins. Co. v. Ripon Cooperative, 50 Wis.2d 431, 436, 184 N.W.2d 65 (1971); Trogun v. Fruchtman, 58 Wis.2d 569, 590, 207 N.W.2d 297 (1973); Szafranski v. Radetzky, supra.
When these two conditions are present, they give rise to a permissive inference of negligence on the part of the defendant which the jury is free to accept or reject. It is settled that the doctrine may be applied in medical malpractice cases and that the likelihood that negligence was the cause may be shown by...
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