Kuehnemann v. Boyd

• Citation: 214 N.W. 326,193 Wis. 588
• Parties: KUEHNEMANN v. BOYD.
• Decision Date: 20 June 1927
• Court: United States State Supreme Court of Wisconsin

193 Wis. 588

214 N.W. 326

KUEHNEMANN

v.BOYD.

Supreme Court of Wisconsin.

June 20, 1927.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Dora Kuehnemann against Dr. G. T. Boyd to recover damages resulting from alleged malpractice. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions to dismiss complaint.--[By Editorial Staff.]

Eschweiler, J., dissenting.Bouck, Hilton, Kluwin & Dempsey, of Oshkosh (Fawsett & Shea, of Milwaukee, of counsel), for appellant.

Reilly & O'Brien, of Fond du Lac, for respondent.

OWEN, J.

The defendant is a physician and surgeon in the practice of his profession in the city of Fond du Lac. Early in the spring of 1925 he undertook the treatment of a toxic goiter, from which plaintiff was suffering. He gave her alternate treatments of the X-ray and the actinic ray. He gave a treatment of each ray once a week for a period of five weeks, when he went to Europe and was absent for about ten weeks. During the period of treatment her condition improved steadily and satisfactorily, and no untoward results of the application of the treatments were observed. No burn resulted, and there was nothing to indicate that her skin was hypersensitive to the rays. While in London attending a meeting of a medical society, the defendant was told by a doctor that if he would remove one filter from the X-ray machine he would secure quicker results. Upon his return from Europe, he renewed the treatments in exactly the same manner that he had administered them prior to his departure for Europe, except that in administering the X-ray he used but one filter in the machine instead of two. His first treatment after returning from Europe was administered on July 21st, in the evening. During that night the patient noticed a soreness and burning at the side of her neck along where the treatment had been administered, and in the morning it was still swollen. During the day the swelling went down, and it seemed to feel better, and she paid no further attention to it. This treatment was given on Tuesday. On Friday night she called on the defendant, told him about the soreness of her neck, that it had swollen and “kind of burned,” but that the swelling had gone down. He said he thought perhaps she had taken a cold. On that night he gave her an application of the actinic ray. She noticed no ill effect from that treatment. On the following Tuesday, the 28th, she returned to him for an X-ray treatment. At that time nothing was said about the soreness of her neck. During the treatment on the 28th she noticed a sort of pricking sensation, but “it wasn't bad”; that was all she noticed while she was in the office, but during the night she woke up and there was “a terrible soreness and burning” on her neck. Next morning she went to his office and asked him what had happened to her neck. He told her she had an X-ray burn, which he treated with the actinic ray. He continued to treat the burn with the actinic ray until October 5th, after which she consulted another physician.

[1][2] It appears uncontradicted by the expert testimony in this case that an X-ray burn is due either to an overdosage or to a hypersensitive skin, and that there is no way of diagnosing in advance whether the skin of any individual is hypersensitive to the X-ray. It is fundamental that, in order to recover in this case, the burden is upon the plaintiff to prove negligence on the part of the defendant in administering the X-ray treatments. In order to support the conclusion that the burn was the result of defendant's negligence, it is first claimed that the treatment given prior to the defendant's departure for Europe resulted in no burn, and disproves the fact that the plaintiff had a hypersensitive skin. The defendant admits that in administering the treatment upon his return from Europe he used but one filter in his X-ray machine instead of two, and that this resulted in a greater dosage, but this does not prove that the dosage given after his return was an overdosage, or that the dosage given prior to his departure was a normal dosage. It simply proves that the dosage given in his first treatments did not, while the dosage given in the latter treatments did, burn the skin. It leaves entirely to speculation whether the burn was the result of an overdosage, or whether it was due to the hypersensitiveness of the skin. There is no evidence in the case to establish the fact that the dosage from which the burn resulted was an overdosage.

[3][4] It was the defendant's duty to exercise that degree of care, diligence, judgment, and skill which physicians in good standing in the same school of medicine usually exercise in the same or similar localities, under like or similar circumstances, having regard to the advanced state of medical or surgical science at the time he has discharged his legal duty to his patient. In order to hold him liable, the burden is upon the plaintiff to show that he failed in the requisite degree of care and skill. That degree of care and skill can only be proved by the testimony of experts. Without such testimony the jury has no standard which enables it to determine whether the defendant failed to exercise the degree of care and skill required of him. Krueger v. Chase, 172 Wis. 163, 177 N. W. 510;McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870;Hunter v. Burroughs, 123 Va. 113, 96 S. E. 360.

[5] The doctrine of res ipsa loquitur is not applicable to malpractice cases between patient and physician. Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111;Finke v. Hess, 170 Wis. 149, 174 N. W. 466. The reason for this rule is stated clearly and tersely by Judge Taft, in Ewing v. Goode (C. C.) 78 F. 442, in the following language:

“A physician is not a warrantor of cures. If the maxim, ‘res ipsa loquitur,’ were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of...