Just v. Misericordia Hospital
| Decision Date | 04 January 1974 |
| Docket Number | No. 169,169 |
| Citation | 61 Wis.2d 574,213 N.W.2d 369 |
| Parties | Walter R. JUST on his own behalf and as personal representative and special admr. for the Estate of Antoinette F. Just, Respondents, v. MISERICORDIA HOSPITAL (now known as Elmbrook Memorial Hospital) et al., Appellants, Dr. N. J. Lochowitz, Defendant. |
| Court | Wisconsin Supreme Court |
C. Donald Straub, Milwaukee, for Hospital.
Arnold, Murray & O'Neill, Milwaukee (Robert C. Watson, Milwaukee, of counsel), for Dr. Goodman.
Valenti, Flessas & Koconis, Milwaukee, for respondents.
Walter R. Just, on his own behalf and as special administrator of the estate of Antoinette F. Just, his deceased wife, (hereinafter plaintiff) commenced this action to recover damages for the alleged negligence of Misericordia Hospital, now known as Elmbrook Memorial Hospital; Dr. Jerome A. Goodman and Dr. N. J. Lochowitz, and for the wrongful death of his wife. Judgment was entered dismissing the case as to Lochowitz, and he is not a party to this appeal.
Trial was to a jury and its verdict found the hospital not negligent. The trial court denied the motion of the hospital for judgment on the verdict and ordered a new trial in the interest of justice. The hospital has appealed from both the denial of its motion and the order for a new trial.
The jury found Dr. Goodman negligent; that his negligence was the cause of the injuries sustained by the deceased; that such negligence was not the cause of the death of Antoinette F. Just; and determined damages. The trial court granted the plaintiff's motion for a new trial on all issues in the interest of justice and pursuant to the provisions of sec. 270.49(1), Stats. Goodman has appealed from this order.
Antoinette F. Just engaged the services of Dr. N. J. Lochowitz because of prolonged vaginal bleeding. Lochowitz suggested that she consult Goodman, 75 percent of whose practice is related to gynecology and obstetrics. On January 6, 1967, Mrs. Just conferred with Goodman and he examined her. Mrs. Just, the mother of seven children, was found to have an enlarged uterus and cystocele. Goodman recommended that Mrs. Just have a vaginal hysterectomy and vaginoplasty, which is a repair of the cystocele. On February 2, 1967, Mrs. Just was admitted to Misericordia Hospital. On February 3, 1967, a vaginal hysterectomy was performed by Goodman, with Lochowitz assisting. It was determined during surgery that a rectocele repair was not required.
Mrs. Just complained of various pains but seemed generally to be making normal post-operative progress in the week that followed. However, on the afternoon of February 9th, the hospital notified Goodman that Mrs. Just's temperature was elevated. He was of the opinion that she may have been developing an infection and prescribed antibiotics. Dr. Unterholzner, a physician employed by the hospital in the event a patient requires emergency treatment, phoned Goodman at approximately 1:45 a.m. on February 10th. Unterholzner advised Goodman that Mrs. Just's temperature had elevated and that she was extremely ill. Goodman was also advised that Mrs. Just had experienced some purulent vaginal discharge. Goodman did not go to the hospital at that time but ordered antibiotics intravenously because they would take effect more rapidly. A culture was done on the drainage.
Goodman was again called at 4:40 a.m. and was informed that Mrs. Just was complaining of marked pain in the right shoulder and also penetrating to the front sternal area. Unterholzner had ordered an analgesic and oxygen.
Goodman came to the hospital some time after the nurse phoned him at 5 a.m. and told him that Mrs. Just was still complaining of chest pain. Goodman examined Mrs. Just, including a vaginal and rectal examination for the first time. A blood count had been taken on February 7th which indicated that Mrs. Just's white blood count was 13,900. (Normal is 500 to 1,000.) High white blood count is an indication of infection. Her blood was not checked again until February 10th and at that time it was 24,900. Sometime on the morning of February 10th, Mrs. Just went into septic shock. Dr. Philip Guzzetta was called in for consultation and concluded that Mrs. Just was suffering from gram negative septicemia.
Septicemia is an extensive infection of bacteria and bacteria byproducts in the blood. Shock is the latter phase of the illness before death.
Late in the afternoon on February 10th, Mrs. Just expired. An autopsy was performed which determined the cause of death to be gram negative septicemia.
During the course of a 14 day trial, evidence was introduced in an attempt to prove the hospital and Goodman negligent in many respects. However, pertinent to this appeal is testimony first elicited on cross-examination of Dr. Andrew Pandaci, called as a witness for the plaintiff. He testified that her blood culture reflected the predominating organisms to be escherichia coli (E. coli) and enterococcus, both gram negative bacteria. Subsequent medical testimony indicated that her blood culture also contained an organism identified as diphtheroids which are also classified as gram negative bacteria.
Medical testimony was introduced to the effect that a patient whose blood was infected with one-gram negative bacteria had some prospects of recovery if given adequate and timely care and treatment. However, one whose blood is infected with two-gram negative bacteria suffered a 100 percent mortality rate.
At the post-trial hearing, the plaintiff presented affidavits and testimony of three microbacteriologists in support of the motion for a new trial. This evidence supported the proposition that enterococcus and diphtheroids are not gram negative bacteria as the testimony at the trial had indicated, but were in fact gram positive bacteria. Further, that there are no different schools of thought in the medical profession with regard to the type of classification of these bacteria, and that the methods used are basic, standard, universal and unvaried throughout the medical world; that there is no possibility of confusing them so as to misclassify them; and that to do so indicates either total unfamiliarity with bacteria identification or a deliberate misstatement of fact.
This testimony would tend to prove that Mrs. Just was infected with one-gram negative bacteria (E. coli) and thus had the possibility of recovery rather than that she was infected with two-gram negative bacteria and the attendant zero-possibility of recovery, as testified to at trial.
It was on the basis of the foregoing evidence presented by the plaintiff in post-trial motions, that the trial court granted a new trial in the interest of justice as to the hospital and Goodman on both the issue of liability and the issue of damages.
The issue presented in this case is whether the trial court abused its discretion in granting the plaintiff a new trial in the interest of justice on the issues of liability and damages as to both the hospital and Goodman.
Sec. 270.49(2), Stats., provides that '. . . No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein. . . .'
The order the trial court utlimately entered, which denied the motions of Goodman and the hospital for judgment on the verdict and granted the plaintiff a new trial in the interest of justice, was predicated upon the following findings:
'WHEREAS during the trial of the above-captioned matter three doctors (including Dr. Andrew Pandazi for the plaintiff and Dr. Addis Costello and Dr. Jerome Goodman for the defendants) testified that Mrs. Antoinette F. Just died of septicemia as a result of two gram negative organisms in her blood stream, and
'WHEREAS Dr. Addis Costello and Dr. Jerome Goodman testified further at trial that the presence of two gram negative organisms results in 100% fatality of the persons so afflicted, and 'WHEREAS after trial the plaintiff submitted affidavits of three qualified microbiologists (Dr. Edward Balish of the University of Wisconsin Medical School, Dr. Edward A. Birge of the University of Wisconsin-Milwaukee and Marquette University, and Dr. Aleck Bernstein of the Wisconsin Medical College) that Mrs. Antoinette F. Just did not have two gram negative organisms in her blood stream, and
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