McMahon v. Brown, 84-1515

• Decision Date: 25 June 1985
• Docket Number: No. 84-1515,84-1515
• Citation: 371 N.W.2d 414,125 Wis.2d 351
• Parties: Tolen J. McMAHON, Plaintiff-Appellant, v. T.E. BROWN, Midelfort Clinic, Ltd., Transportation Ins. Co., and Patient's Compensation Fund, Defendants-Respondents. *
• Court: Wisconsin Court of Appeals

Page 414

371 N.W.2d 414

125 Wis.2d 351

Tolen J. McMAHON, Plaintiff-Appellant, v. T.E. BROWN, Midelfort Clinic, Ltd., Transportation Ins. Co. and Patient's Compensation Fund Defendants-Respondents. ^*

No. 84-1515.

Court of Appeals of Wisconsin.

Submitted on Briefs April 29, 1985.

Opinion Released June 25, 1985.

Opinion Filed June 25, 1985.

Gavic Law Office, Spring Valley, for plaintiff-appellant.

Tinkham, Smith, Bliss, Patterson, Richards & Hessert, Wausau, for defendants-respondents.

Before CANE, P.J., and DEAN and LaROCQUE, JJ.

DEAN, Judge.

Tolen McMahon appeals a judgment dismissing her complaint against Dr. T.E. Brown and others following a jury verdict in Brown's favor. McMahon alleged that Brown breached an express agreement with her by replacing breast implants when the parties agreed only to the removal of her existing implants. McMahon also charged that Brown's breach of the contract was actionable negligence and an assault. She sought damages for medical expenses, pain, and suffering. She also sought punitive damages.

The trial court, over McMahon's objection, submitted the case to the jury solely on a negligence theory. The special verdict asked whether Brown was negligent in his care and treatment of McMahon. The trial court gave the pattern instructions on medical malpractice and informed consent. No question nor instruction concerning the existence or effect of a specific agreement between the parties was given. Because the instructions did not require the jury to resolve the basic controversy between the parties, namely the existence and scope of the alleged agreement, we reverse and remand this matter for a new trial.

Brown and McMahon agree that she wanted her existing breast implants removed for health reasons. They also agree that they discussed the alternative medical procedures available to her. They disagree, however, about which operation McMahon finally requested. McMahon argues that Brown was to simply remove the implants. She contends that she wanted to return to a "natural state" without breast implants, even though she realized that without new implants she might be flat-chested. Brown argues that they agreed to the removal of the existing implants and the reconstruction of her breasts, which could include inserting new implants. McMahon denies that Brown indicated that he might put in new implants, and denies that she agreed to new implants. The parties and the trial court recognized that resolution of this dispute was central to the litigation, yet the jury was not asked to decide whether the parties expressly agreed to a particular surgery. Brown argues that this issue is covered by the question and instructions actually given.

We agree that the verdict question was sufficient in light of the parties' arguments. The form of a special verdict is discretionary with the trial court, and this court will not interfere as long as all material issues of fact are covered by appropriate questions. Meurer v. ITT General Controls, 90 Wis.2d 438, 445-46, 280 N.W.2d 156, 160 (1979). The trial court submitted the question whether Brown was negligent in his care and treatment of McMahon. McMahon argues that the case actually involved a negligent breach of contract. Although malpractice may sound in either tort or contract, Klingbeil v. Saucerman, 165 Wis. 60, 62, 160 N.W. 1051, 1051 (1917), the trial court reasonably construed McMahon's action as sounding in tort. McMahon sought punitive damages and damages for pain and suffering, neither of which are traditionally recoverable in a contract action. Entzminger v. Ford Motor Co., 47 Wis.2d 751, 757-58, 177 N.W.2d 899, 903 (1970); Frechette v. Ravn, 145 Wis. 589, 591, 130 N.W. 453, 453 (1911). McMahon also repeatedly referred to Brown's alleged "negligence" in failing to comply with their agreement. The trial court properly concluded that this was part of Brown's common law duty to exercise proper skill and care. The trial court added that McMahon could argue to the jury that she requested a specific operation and did not receive it.

The trial court also has broad discretion concerning jury instructions. State v. Higginbotham, 110 Wis.2d 393, 403, 329 N.W.2d 250, 255 (Ct.App.1982). The instructions, however, must be framed with regard to the evidence. D.L. v. Huebner, 110 Wis.2d 581, 624, 329 N.W.2d 890, 910 (1983). The standard instructions are of great assistance, but should be tailored to meet the needs of the specific case. Leibl v. St. Mary's Hospital, 57 Wis.2d 227, 233, 203 N.W.2d 715, 718 (1973). We view jury instructions as a whole to determine whether the jury was fully and fairly instructed. Kuhlman, Inc. v. G. Heileman Brewing Co., 83 Wis.2d 749, 756, 266 N.W.2d 382, 386 (1978). Where an erroneous instruction appears, we will not reverse unless it is probable that the jury was misled to a different result than if the error had not occurred, La Chance v. Thermogas Co., 120 Wis.2d 569, 577, 357 N.W.2d 1, 5 (Ct.App.1984), or it appears from the record that the real controversy has not been fully tried. Clark v. Leisure Vehicles, Inc., 96 Wis.2d 607, 620, 292 N.W.2d 630, 636 (1980); sec. 752.35, Stats.

The trial court gave Wisconsin pattern jury instructions 1023 and 1023.2. See Wis JI--Civil 1023 (1984); Wis JI--Civil 1023.2 (1977). These instructions allowed the jury to ignore any specific agreement between McMahon and Brown. Instruction 1023 provides...