Mercurdo v. Milwaukee County

• Decision Date: 05 April 1978
• Docket Number: No. 75-847,75-847
• Citation: 264 N.W.2d 258,82 Wis.2d 781
• Parties: Josephine MERCURDO, Plaintiff-Appellant, v. COUNTY OF MILWAUKEE, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 258

264 N.W.2d 258

82 Wis.2d 781

Josephine MERCURDO, Plaintiff-Appellant, v. COUNTY OF MILWAUKEE, Defendant-Respondent.

No. 75-847.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 8, 1978.

Decided April 5, 1978.

Thompson & Coates, Ltd., Racine, on brief, for plaintiff-appellant.

Robert P. Russell, Corp. Counsel, and James J. Bonifas, Deputy Corp. Counsel, Milwaukee, on brief, for defendant-respondent.

DAY, Justice.

This is an appeal from a judgment dismissing the plaintiff-appellant, Josephine Mercurdo's (hereafter plaintiff) medical malpractice complaint. The complaint alleged that the defendant-respondent, Milwaukee County's (hereafter defendant) negligence in administering intravenous fluids caused second and third degree burns and disfigurement to plaintiff's left forearm.

The issues on this appeal are:

1. Did the trial court err by refusing to instruct the jury on the doctrine of res ipsa loquitur ?

2. Did the trial court err by excluding from evidence a portion of the defendant's "Accident Record" completed by a senior medical student working at defendant's hospital?

3. Did the trial court err by refusing to grant the plaintiff's motion for mistrial after the defendant's attorney told the jurors on voir dire that damages recovered by the plaintiff might have to be paid by them as taxpayers?

We hold that the trial court erred in deciding each of these three issues.

The plaintiff came from Puerto Rico to Milwaukee to visit her brother in April, 1970. On July 22, 1970 she was pregnant and fell down the basement stairs in her brother's house.

On July 26, 1970 she entered Milwaukee County General Hospital. On admission her temperature was 105 degrees and her condition was listed as critical. The plaintiff was apparently suffering from septicemia, a blood stream infection, caused by the incompletely aborted fetus.

At approximately 6:30 p. m., on July 26th, the plaintiff was administered five million units of aqueous penicillin. The plaintiff was also given pitocin to induce uterine contractions to expel the fetus. The pitocin could not have caused the burns to the plaintiff's arm according to the expert testimony at the trial. The penicillin was administered by volutrol, an intravenous (I.V.) device. The volutrol is a small chamber attached to the I.V. apparatus and permits the drug to drip into a patient's body over a period of time along with the plain I.V. solution.

At approximately 8:00 p. m., Mrs. Mercurdo received another five to ten million units of aqueous penicillin by means of an I.V. "push." This method involved injecting the penicillin with a syringe through the I.V. apparatus causing a more rapid injection of the solution into the blood stream.

At the trial the defendant's medical witnesses were Registered Nurse Candace Czarnecki and Dr. Richard F. Mattingly, Director of the Gynecology and Obstetrics Department at the Milwaukee County General Hospital. Both of these witnesses agreed that penicillin in a concentrated form would be caustic and could damage the tissues surrounding the I.V. site if the penicillin got out of the vein.

When the I.V. was given to the plaintiff, she immediately complained of pain and when the later I.V. "push" was administered she suffered more intense pain and her arm began to swell. She developed a blister which became black and her hospital bracelet had to be removed. This blistering was caused by the infiltration of the I.V. fluids in the tissue around the I.V. site. The infiltration of the penicillin into the plaintiff's forearm caused ischemic necrosis (dead tissue from lack of blood supply) and the blackened tissue later sloughed off.

The I.V. was attached to the plaintiff's arm with bandages or tape. The arm that the I.V. was inserted into was not restrained or tied down.

Between 8:55 p. m. and 9:40 p. m., the plaintiff spontaneously delivered a macerated still-born fetus and placenta.

After recovering from her septic abortion, the plaintiff returned to her brother's house for three days and then went back to the hospital for a tissue transplant on her forearm. Skin was removed from the plaintiff's right thigh and grafted to the area on the left forearm. The grafted skin became black and a second transplant operation in the same area had to be performed.

The plaintiff's injury left a scar near her left wrist two to three inches wide and three to four inches long. The skin grafts from her right thigh caused three scars that were slightly larger than the one near her wrist.

On December 11, 1975 the jury returned a verdict that the defendant, through its registered nurses and doctors at Milwaukee County General Hospital, was not negligent in the care and treatment of the plaintiff. On December 26, 1975 the plaintiff filed a motion after verdict, requesting that the trial court set aside the portion of the verdict dealing with liability and grant a new trial on liability. The plaintiff's motion was denied and judgment was entered on the verdict, dismissing the complaint.

Further facts will be discussed below in relation to each of the plaintiff's claims of trial court error.

Res Ipsa Loquitur.

The plaintiff claims that the trial court erred in refusing to instruct the jury on the doctrine of res ipsa loquitur. ¹ Res ipsa loquitur may apply where

". . . the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible . . . " Fehrman v. Smirl, 20 Wis.2d 1, 25, 121 N.W.2d 255, 268, 122 N.W.2d 439 (1963).

"The procedural effect of res ipsa loquitur in Wisconsin is that of a permissible inference rather than rebuttable presumption. (citations omitted). As a permissible inference, the effect of the doctrine of res ipsa loquitur is merely to permit the jury to draw a reasonable inference from circumstantial evidence." Fehrman, supra at 20 Wis.2d 21, 121 N.W.2d at 266.

Prior to 1963 res ipsa loquitur was not applicable to medical malpractice cases in Wisconsin. But in Fehrman v. Smirl, supra,

". . . this court overruled prior cases and adopted the general rule that res ipsa loquitur may be invoked in medical malpractice actions when 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. This court also adopted the minority rule that when there is no basis of common knowledge for such a conclusion, an instruction embodying res ipsa loquitur may be grounded on expert medical testimony." Burnside v. Evangelical Deaconess Hospital, 46 Wis.2d 519, 523, 175 N.W.2d 230, 232 (1970).

The plaintiff argues that a layman could conclude as a matter of common knowledge that a woman who receives an I.V. should not leave the hospital with a large burn on her wrist that requires plastic surgery to repair. However, the court need not reach this contention because there was also expert testimony that the plaintiff could not have received such a burn on her arm unless someone neglected their duty. ² But even where there is expert testimony that would support a res ipsa inference, the instruction will not always be given.

"When both parties have rested and the case is ready for the jury, either of two conditions may exist which would render it error to give the res ipsa loquitur instruction. The plaintiff may have proved too little or he may have proved too much. For example, if on the one hand, there has been no evidence which would remove the causation question from the realm of conjecture and place it within the realm of reasonable inferences, then the plaintiff has proved too little, and the doctrine of res ipsa loquitur is of no avail, and the case must be dismissed.

"On the other hand, it is possible that the plaintiff's evidence of negligence in a given case has been so substantial that it provides a full and complete explanation of the event, if the jury chooses to accept it. In that case, causation is no longer a mystery, and the res ipsa loquitur instruction would be superfluous and erroneous. Fehrman v. Smirl, (1964), 25 Wis.2d 645, 131 N.W.2d 314; Puls v. St. Vincent Hospital (1967), 36 Wis.2d 679, 154 N.W.2d 308; and Knief v. Sargent, supra.

"There is, of course, a middle ground between these to extremes where the giving of the instruction would be proper. Prosser describes that situation as follows:

". . . the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.' Prosser, Law of Torts (Hornbook Series) (3d ed.), ch. 6, p. 236, sec. 40." Utica Mutual Ins. Co. v. Ripon Cooperative, 50 Wis.2d 431, 439, 184 N.W.2d 65 (1971).

"If the evidence offered shows substantial proof of negligence on the part of the defendants, which if accepted by the jury is a complete explanation of the accident, then giving the res ipsa loquitur instruction is superfluous and erroneous. In some cases the adequacy of the proof is a close question and in those instances giving the instruction rests within the sound discretion of the trial court." Turtenwald v. Aetna Casualty, 55 Wis.2d 659, 665, 667, 201 N.W.2d 1 (1972).

The defendant contends that the res ipsa instruction should not have been given because it was not warranted by the totality of the evidence. The plaintiff testified that she experienced pain when the I.V. was administered, and more intense pain when the I.V. "push" was given. Registered Nurse Czarnecki agreed that the plaintiff complained of pain when the I.V. "push" was given, but that the plaintiff was not thrashing around and did not need restraints. The hospital "accident record" (discussed below) states...