Kelly v. Hartford Cas. Ins. Co.

• Decision Date: 28 November 1978
• Docket Number: No. 77-531,77-531
• Citation: 271 N.W.2d 676,86 Wis.2d 129
• Parties: Catherine A. KELLY and Hubert Kelly, Plaintiffs-Appellants, v. HARTFORD CASUALTY INSURANCE COMPANY, a Foreign Corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 676

271 N.W.2d 676

86 Wis.2d 129

Catherine A. KELLY and Hubert Kelly, Plaintiffs-Appellants, v. HARTFORD CASUALTY INSURANCE COMPANY, a Foreign Corporation Defendant-Respondent.

No. 77-531.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 1, 1978.

Decided Nov. 28, 1978.

James H. Taylor and Benson & Taylor, Siren, on brief, for plaintiffs-appellants.

John W. Fetzner, Gloria O'Connell Sonnen and Law Offices of John W. Fetzner, S. C., Hudson, on brief, for defendant-respondent.

COFFEY, Justice.

This is an appeal of a medical malpractice action in which the trial court directed verdict for the defendant. The plaintiff claims to have suffered injury when a nurse negligently administered an enema by not allowing the plaintiff to enter into a proper position before the enema tube was inserted because she was in a hurry.

On July 5, 1975 the seventy-five year-old plaintiff entered Community Memorial Hospital in Spooner complaining of lower back pain. On July 16, 1975 Dr. Rudolf Matzke, the plaintiff's attending physician, ordered an intravenous pyelogram. This procedure is commonly known as a lower GI series examination which includes the bowel, a part of the lower intestinal tract. Before the x-ray procedure is performed, it is required that one or more soap suds enemas are used to clear the bowel.

Mrs. Kelly claims that she was injured during the administration of the enema. Mrs. Kelly states that the nurse was in a hurry and that the plaintiff experienced no pain when the enema tube was inserted, but as the liquid began to flow into the rectum it felt like she was being pinched in the rectal region.

The same evening, the duty nurse discovered a sore to the plaintiff's rectal area which resembled a bruise. On July 19th Dr. Matzke examined the plaintiff and concluded the bruise was most likely caused by the enema. Subsequently, a large hematoma developed in the rectum which required surgical removal. Evidence was received at the trial that Mrs. Kelly had a history of anal diseases. In January, 1969 a proctoscopic examination revealed considerable evidence of hemorrhoid problems. In May, 1975 examinations indicated the plaintiff was suffering from inflamed hemorrhoids and anal irritation caused by torn mucus linings.

The respective litigants stipulated to the acceptance at trial of the deposition of the treating physicians and surgeons, Dr. Matzke and Dr. Erickson, while Dr. Bishmu Choudhuri, the general surgeon who performed the rectal surgery, testified in person at trial. The medical testimony is reviewed in the course of this opinion.

There are two issues on appeal:

1. Whether sufficient evidence was presented to warrant the submission of a Res ipsa loquitur instruction to the jury?

2. Whether the facts of this case require this court to grant a new trial in the interests of justice pursuant to sec. 251.09, Stats.? (Renumbered sec. 751.06 by Laws of 1977, ch. 187, sec. 76, effective August 1, 1978).

In Fehrman v. Smirl, 20 Wis.2d 1, 121 N.W.2d 255 (1963), this court authorized the application of Res ipsa loquitur to medical malpractice cases. Where there is an absence of testimony regarding a specific vehicle of negligence, the doctrine of Res ipsa loquitur permits a jury to draw an inference of general negligence from the circumstantial evidence. Prosser, Law of Torts (2d ed.) § 42, p. 202. Before a Res ipsa loquitur instruction can be given to a jury, the evidence must conform to these requirements:

"(1) The event in question must be of the kind which does not ordinarily occur in the absence of negligence; and (2) the agency or instrumentality causing the harm must have been within the exclusive control of the defendant." Trogun v. Fruchtman, 58 Wis.2d 569, 590, 207 N.W.2d 297, 308 (1973).

As a general proposition the doctrine of Res ipsa loquitur may be invoked in medical malpractice actions where a layman is able to say as a matter of common knowledge that the consequences of the professional treatment are not those which ordinarily result if due care is exercised. Fehrman,supra at 22, 121 N.W.2d 255.

Wisconsin has additionally adopted the position that an instruction embodying the principle of Res ipsa loquitur may be grounded on expert medical testimony in a malpractice case. Fehrman, supra at 25, 121 N.W.2d 255; Burnside v. Evangelical Deaconess Hospital, 46 Wis.2d 519, 523, 175 N.W.2d 230 (1970); Mercurdo v. County of Milwaukee, 82 Wis.2d 781, 786, 264 N.W.2d 258 (1978). The Res ipsa loquitur standards are satisfied if the testimony and the medical records taken as a whole would support the inference of negligence or if direct testimony is introduced that the injury in question was of the nature that does not ordinarily occur if proper skill and care are exercised.

The plaintiff claims that it is within the common knowledge of a layman that rectal hematoma will not ordinarily occur from the administration of an enema except in circumstances where the proper medical skill and care have not been exercised. Reliance is placed on Davis v. Memorial Hospital, 58 Cal.2d 815, 26 Cal.Rptr. 633, 376 P.2d 561 (1962) wherein it was alleged that an enema caused the patient to suffer a perirectal abscess and a resulting fistula. Without reaching a decision on causation, the California Supreme Court concluded that the plaintiff was entitled to a Res ipsa loquitur instruction, noting:

"Although there was no expert testimony as to the probability of negligence in such a situation, it is a matter of common knowledge among laymen that the giving of an enema is not ordinarily harmful unless negligently done." Davis, supra 26 Cal.Rptr. at 634, 376 P.2d at 562.

We do not find the Davis case to be persuasive precedent in support of the plaintiff's position. First, the Davis case is factually distinguishable from the case at bar. In Davis, the plaintiff had undergone a prostatic massage which had revealed no abnormalities. Mrs. Kelly has a history of hemorrhoid problems dating back to 1969 and confirmed by examination in May, 1975, one month before the alleged act of negligence. Further, in Davis, four attempts were made to insert the tube, the plaintiff testifying that with each attempt a "cutting," "scratching" or "tearing" sensation was experienced. Mrs. Kelly testified there was no discomfort during the insertion of the tube. Rather, only after the liquid began to flow did she experience a pinching sensation in the rectal area.

Second, California permits a Res ipsa loquitur instruction based upon common knowledge unless:

". . . the facts clearly show that the procedure is so Unusual and complex that the jury could not rest their understanding of it upon their common knowledge . . . ." Bardessono v. Michels, 3 Cal.3d 780, 91 Cal.Rptr. 760, 478 P.2d 480 (1971). (emphasis supplied.)

This is not the law in Wisconsin. An application of the doctrine based on common knowledge is allowed only when the occurrence clearly "speaks for itself." Burnside v. Evangelical Deaconess Hospital, supra. We have previously held that the occurrence "speaks for itself" and that Res ipsa loquitur could be applied where a patient had undergone dilatation and curettage surgery and returned from the operative procedure with second degree burns on her posterior, an area not involved in the operation. The court held that a layman could conclude as a matter of common knowledge that burns in an area unassociated with the operation ordinarily do not result if due care is exercised. Beaudoin v. Watertown Memorial Hospital, 32 Wis. 132, 145 N.W.2d 166 (1966).

In Burnside an unsuccessful attempt to catheterize the patient resulted in his passing blood in his urine. In refusing to allow an instruction based on common knowledge the court stated:

"While a layman might speculate upon the skill and competence of the doctors who attempted the catheterization, we do not think this procedure is so well known and understood by lay people that it permits a jury to infer negligence on the part of the doctors from any fact of common knowledge possessed by laymen." Burnside v. Evangelical Deaconess Hospital, supra 46 Wis.2d at 526, 175 N.W.2d at 234.

Wisconsin has refused to allow a Res ipsa loquitur instruction resting on common knowledge, Inter alia, for injury to a sphincter valve during a prostate operation. Fehrman, supra ; drug hepatitis, Trogun, supra ; development of gangrene subsequent to amputation of the hand at the wrist, Shurpit v. Brah, 30 Wis.2d 388, 141 N.W.2d 266 (1966); erroneous diagnosis of gallstones, Francois v. Mohrohisky, 67 Wis.2d 196, 266 N.W.2d 470 (1975).

In Cramer v. Theda Clark Memorial Hospital, 45 Wis.2d 147, 150, 172 N.W.2d 427 (1969) and Payne v. Milwaukee Sanitarium Foundation, 81 Wis.2d 264, 275, 260 N.W.2d 386, 392 (1977), while not speaking directly to the Res ipsa loquitur question, the court set forth rules for determining whether expert testimony was required to enable the jury to understand the requisite medical standard of care:

"In establishing the negligence of a hospital the necessity of expert testimony depends upon the type of negligent acts involved. Expert testimony should be adduced concerning those matters involving special knowledge or skill or experience on subjects that are not within the realm of ordinary experience of mankind, and which require special learning, study or experience."

Expert medical testimony introduced at trial leads to the conclusion that based on these particular facts, this is not a proper case for the application of Res ipsa loquitur premised exclusively upon the common knowledge and experience of laymen. Dr. Choudhuri, appearing on behalf of the plaintiff, testified that in this case the administration of an enema is a dangerous procedure requiring special knowledge and training. Based upon this...