Knief v. Sargent

• Decision Date: 01 October 1968
• Citation: 40 Wis.2d 4,161 N.W.2d 232
• Parties: Alfred H. KNIEF, Appellant, v. James W. SARGENT, Respondent.
• Court: Wisconsin Supreme Court

Page 232

161 N.W.2d 232

40 Wis.2d 4

Alfred H. KNIEF, Appellant, v. James W. SARGENT, Respondent.

Supreme Court of Wisconsin.

Oct. 1, 1968.

Pfannerstill, Camp & Tyson, Wauwatosa, for appellant.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, for respondent; Edmund W. Powell, Milwaukee, of counsel.

HALLOWS, Chief Justice.

Basically only one question is raised on this appeal, i.e., Whether the trial court erred in refusing to give an instruction on res ipsa loquitur. Plaintiff requested the instruction based upon Fehrman v. Smirl (1963), 20 Wis.2d 1, 121 N.W.2d 255, 122 N.W.2d 439, and Fehrman v. Smirl (1964) 25 Wis.2d 645, 131 N.W.2d 314, and contends his facts come squarely within those cases. The question involves not the form of the instruction but its availability in view of the direct proof of negligence in the record.

It is now five years since this court held an instruction on res ipsa loquitur could be given in a malpractice case when a layman could determine either as a matter of common knowledge or with the aid of expert medical testimony that the consequence of medical treatment was not that which ordinarily results if due care is exercised. Fehrman v. Smirl (1963), supra.

In Beaudoin v. Watertown Memorial Hospital (1966), 32 Wis.2d 132, at p. 138, 145 N.W.2d 166 at p. 169, we held it was a matter of common knowledge that '* * * blisters in the nature of second-degree burns in an area not directly related to the operative procedures do not ordinarily result if due care is exercised.' Consequently, the proof offered by the plaintiff was sufficient to evoke the doctrine of res ipsa loquitur. The significance of Fehrman is its holding that the doctrine of res ipsa loquitur may be applied to malpractice cases where expert medical testimony establishes the injury or the disease is of a kind which does not ordinarily occur if the doctor exercises due care. In McManus v. Donlin (1964), 23 Wis.2d 289, 127 N.W.2d 22, we refused to extend this doctrine so as to incorporate the so-called 'rarity' test in malpractice cases as a basis for allowing a jury to infer negligence. See also Shurpit v. Brah (1966), 30 Wis.2d 388, 141 N.W.2d 266. The doctrine of res ipsa loquitur is applicable to the circumstantial evidence of a result and in this state allows a permissible inference of negligence to be drawn by the jury from the result. In its application one's reasoning does not proceed from cause to effect but from the effect to the cause. Turk v. H. C. Prange Co. (1963), 18 Wis.2d 547, 119 N.W.2d 365.

The instant case is not one involving expert medical testimony which establishes the basis for the doctrine of res ipsa loquitur. There is no medical testimony that the result of the defendant's treatment would ordinarily not have happened except for his negligence. The evidence is directed to specific acts of negligence in the choice of the treatment and surgical procedures. When there is evidence of negligence substantial enough to sustain a verdict, the doctrine is inapplicable to those particular facts or theory of negligence and the giving of the instruction is considered superfluous or redundant. Fehrman v. Smirl (1964), supra; Carson v. City of Beloit (1966), 32 Wis.2d 282, 145 N.W.2d 112.

To determine if the doctrine of res ipsa loquitur was applicable and the plaintiff entitled to an instruction thereon requires a brief re sume of the evidence. The plaintiff suffered from a kidney stone in the lower portion of his left ureter which is a tube-like connection between the kidney and the bladder. The stone blocked this passageway and prevented the functioning of the left kidney by stopping the passage of urine to the bladder.

From several diagnoses during the month of November, 1960, the defendant knew the stone was moving down the urinary tract. During this time the plaintiff was in severe pain and requiring large doses of narcotics. On November 19th the defendant attempted to remove the stone by a transurethral manipulation, a procedure by which a catheter is passed through the bladder into the ureter. This attempt to remove the stone was unsuccessful.

On November 22nd it was determined the stone had moved another half inch toward the bladder and the defendant decided to perform another transurethral manipulation and to operate if the manipulation was unsuccessful. On the following day the defendant attempted the transurethral manipulation, which was unsuccessful. The defendant then operated to remove the stone by making an incision in the stomach. It is the decision to perform this type of operation...